Archive: May 5, 2020, 12:00 AM

Application for COVID-19 General Order aims to provide further flexibility to manage private sector employment arrangements

Details  Created: 05 May 2020

The Western Australian Industrial Relations Commission has received an application seeking that it issue a General Order under section 50 of the Industrial Relations Act 1979 (WA) for private sector employers and employees, based on the amendments made to the Fair Work Act 2009 (Cth) arising from the Coronavirus Economic Response Package Omnibus (Measures No.2) Act 2020 (Cth).


The application seeks a General Order in the circumstances of the COVID-19 pandemic to provide for the following specific temporary measures:


  1. A requirement that where a JobKeeper payment is payable, the employer is to provide eligible employees the value of the JobKeeper payment or the amount owed for work performed;
  2. Ability for employers to stand down employees (either fully or partially) because they cannot be usefully employed arising from the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19;
  3. Ability for employers to alter the duties of work of an employee in order to continue the employment of one or more employees of the employer;
  4. Ability for employers to alter the location of work in order to continue the employment of one or more employees of the employer;
  5. Option for an employer and employee to agree to work being performed on different days and times, provided that the employee is not to unreasonably refuse an employer’s request.


The proposed General Order is intended to apply to all employers and employees in the private sector within the State industrial relations system, whether or not they are covered by an award or industrial agreement. The proposed terms of the General Order are said to aim to provide the flexibility to manage employment arrangements in a manner that supports the JobKeeper Scheme, preserves jobs and supports the viability of businesses impacted by the COVID-19 pandemic.


The application seeks for the General Order to be operative on a temporary basis only, applying until 28 September 2020, coinciding with the date the Jobkeeper Scheme arrangements set out in the Coronavirus Economic Response Package (Payments and Benefits) Act 2020 (Cth) cease to apply.


The Commission held a conference with parties named in section 50 of the Industrial Relations Act 1979 (WA), consisting of the Chamber of Commerce and Industry of Western Australia, UnionsWA, and Minister for Industrial Relations, the Honourable Bill Johnston MLA. The section 50 parties are conferring with a view to agreeing the terms of a proposed General Order.


The Commission intends to deal with the application as a matter of priority given the current circumstances. Any person wishing to make a submission to the Commission regarding the application for the proposed General Order is invited to do so in writing by 4.30pm on Monday 11 May 2020.



PSAB appeal against demotion and reduction in work classification dismissed

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the respondent to impose a penalty of a permanent reduction in classification following admissions by the appellant of misconduct over a six-year period.

The appellant occupied a Level 8 position with the respondent and formed part of the senior management team for several years.

In March 2019, the respondent made four allegations of suspected breaches of discipline under s 80 of the Public Sector Management Act 1994 (WA) (PSM Act). The allegations were in connection to the misuse of the respondent’s computer system, unauthorised release of official information and inappropriate behaviour.

The appellant admitted to the misconduct and the respondent imposed a penalty of permanent reduction in work classification from Level 8.3 to Level 5.4.

The appellant appealed on the basis that the penalty was harsh and unfair given the mitigating circumstances that he advanced in response to the allegations, including his unblemished record and personal issues. He sought that the penalty be reduced to a reprimand and a reduction in classification to Level 8.1.

The respondent argued that the penalty was appropriate and a higher-level position was not suitable for the appellant given his breach of trust and the respondent’s lack of confidence in the appellant as a result of his misconduct.  

The Board found, in considering the appellant’s engagement in sustained misconduct, profound abuse of the respondent’s email system, numerous breaches of the respondent’s code of conduct and his senior position, that the respondent’s decision to permanently reduce the appellant’s work classification was entirely appropriate. The Board found that the personal matters referred to by the appellant in his mitigation submissions could not be relied upon in mitigation of sustained misconduct over many years.


Respondent’s submission as to scope of Appeal Board’s powers under s 80I(1) of Act

The Board also dealt with a submission made by the respondent that the Board’s power to “adjust” the respondent’s decision under s 80I of the Industrial Relations Act 1979 (WA) (Act) only extended to reversing or quashing the decision. The respondent submitted that it was not open to the Board to “change” the decision in such a way as to replace it with a different decision as sought by the appellant, to impose a reprimand and a Level 8.1 classification instead.

The Board considered the powers of the Board under s 80I of the Act to “adjust” a decision of an employer to dismiss a manager for misconduct and found that its meaning was to be considered in the context of an appeal under s 80I(b) of the Act.

The Board then referred to s 80A of the PSM Act, and noted that one category of disciplinary action is a “reduction in the level of classification of the employee” and that this was the relevant ‘decision’ in this case. Thus, the Board found the meaning of “adjust” in this case is to be considered in the context of the relevant disciplinary decision to reduce the appellant’s level of classification.

The Board found that its power to “adjust” the respondent’s reduction in classification decision involved the power to “reform” it in some way. This is plainly not limited to reversing it.

The Board determined that such decisions involve “reforming” or changing a reduction in classification decision, which is the relevant decision to be adjusted under s 80I(b) of the Act. This does not involve the making of a new decision by the Board.  

The decision can be read here.