The Industrial Magistrate found that under s 9(1a) an employee may unilaterally nominate to take all of their long service leave, provided certain conditions are met, and under s 9(1b) the employer’s agreement is required for an employee to take portions of their long service leave.

Background

The claimants were employees of the respondent. The claimants performed an important role in the respondent’s business, without which the respondent’s production could be adversely impacted.

In October 2020, the claimants each requested long service leave from 19 to 24 December 2020. The respondent declined each of their long service leave requests. The claimants then proposed alternative dates in April 2021. On or about 19 December 2020, the respondent notified the claimants that it was unable to accommodate their alternative leave requests.

Contention

The claimants sought a declaration under s 11(1) to determine the statutory construction of s 9.

The claimants contended that s 9(1a) allows an employee to unilaterally nominate to take all or a portion of their outstanding long service leave. The claimants stated that the ordinary meaning of the words ‘not to refuse’, ‘at any time suitable’ and ‘any period’ when read in context, was consistent with such a contention.

The respondent contended that s 9 allows an employer to refuse an employee’s request to take long service leave for periods that are less than the employee’s overall long service leave entitlement. Further, an employee is not permitted to unilaterally take long service leave for periods less than their overall long service leave entitlement, where the long service leave entitlement accrued more than 12 months earlier.

Findings

The claims were dismissed.

Under s 9(1a) of the Act, an employee may unilaterally nominate to take all of their long service leave, which has accrued 12 months prior, provided the employee provides more than 2 weeks’ notice to the employer.

Section 9(1b) requires an employer’s agreement for an employee to take portions of long service leave in separate periods.

Thus, based on statutory construction, the purpose of the Act and Parliamentary intention, the Act does not allow an employee to unilaterally nominate to take a portion of their long service leave, which has accrued 12 months prior.

The decision can be read here.

A s 66 order was issued to allow the operation of the respondent’s Interim Union Council to continue because the rules of the respondent and its counterpart federal body had fallen out of alignment.

Background

The order issued in Media, Entertainment and Arts Alliance of Western Australia (Union of Employees): [2022] WAIRC 00087; [2022] 102 WAIG 194; [2022] WAIRC 00092; [2022] 102 WAIG 195 on 2 March 2022 established an Interim Union Council of the respondent.  The reason for this was that the rules of the respondent and its counterpart federal body, the Media Entertainment and Arts Alliance, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth), had fallen out of alignment.  The order operated until 28 February 2023.

Contention

The applicant applied under s 66 of the Industrial Relations Act 1979 (WA), seeking either an extension of the operation date of the 2 March 2022 order or a new order in the same terms, but with an operative date of 31 August 2023.

The respondent required the continuation of the Interim Union Council to register future anticipated agreements under the Act as industrial agreements and to bring an application under s 71 of the Act for a fresh s 71 certificate. 

Findings

The Commission issued a new order under s 66 of the Act.

A variation of the 2 March 2022 order issued in PRES 6 of 2022 was not possible because the operative date of 28 February 2023 has passed, making the Commission functus officio.

The decision can be read here.

The Tribunal stated that it has jurisdiction under the Occupational Safety and Health Act 1984 (WA) regarding any dispute arising from employee’s rights and entitlements in circumstances where they hold a concern for their health and safety at a workplace and the entitlement to payment during such period.

Background

The applicant was employed by the respondent as a stevedore at the Port of Fremantle, Western Australia. On 27 July 2020, the applicant, along with several other stevedores, ceased working on a crane due to concerns for their safety because of a crack that had been found in the crane railing. Later that day, the respondent advised the applicant that he would be stood down and four hours of pay would be deducted from his salary.

Contention

The applicant contended that he refused to work in accordance with s 26 of the Occupational Safety and Health Act 1984 (WA). Thus, pursuant to s 28(1), he was entitled to be paid and applied to the Tribunal for an order pursuant to s 28(2), for the deducted salary.

Opposing the applicant, the respondent said the application should be dismissed on the basis that the Tribunal lacked jurisdiction to determine it.

The respondent is a ‘national system employer’ within the meaning of the Fair Work Act 2009 (Cth) and has been an employer of ‘waterside workers’ at all material times within the meaning of the FW Act and the Workplace Relations Act 1996 (Cth). The applicant’s employment with the respondent was covered by the Patrick Terminals Enterprise Agreement 2016, which was made and approved under the FW Act.

The respondent submitted that the applicant’s refusal to work on the crane was ‘industrial action’ as described in s 19(1)(b) of the FW Act. Therefore, under s 474(1) of the FW Act, this requires a reduction in pay. Thus, sections 26(1), 28(1) and (2) of the OSH Act were inoperative because they were directly inconsistent with a Commonwealth law, namely Part 3-3, Division 9 of the FW Act.

The applicant disputed that the Tribunal lacked jurisdiction, submitting that ss 26 and 28 of the OSH Act were not directly inconsistent with the FW Act.

The respondent contended that the FW Act intends to 'cover the field’ and regulate exclusively and, this being the case, s 109 of the Australian Constitution (Constitution) renders s 28(1) of the OSH Act inoperative.

The applicant contended that the FW Act does not purport to legislate against an employee being entitled to refuse to work in circumstances set out in s 26 of the OSH Act and in particular does not prohibit payment by an employer to an employee in the circumstances covered by s 26 and s 28 of the OSH Act nor preclude an employee referring a dispute to the Tribunal under s 28(2) of the OSH Act.

The Commonwealth Attorney General (intervening) submitted there was no direct inconsistency. Sections 26(1), 28(1) and (2) of the OSH Act do not ‘alter, impair or detract from’ Part 3-3, Division 9 of the FW Act. No ‘real conflict’ arose from the mere co-existence of these laws. The FW Act does not cover the field as contended by the respondent.

The Attorney General also submitted that if there was s 109 inconsistency between these laws, it was more likely an operational inconsistency. However, it was not yet possible to determine whether such inconsistency exists. Absent findings of fact, the issue was hypothetical and may not need to be decided.

Findings

The Tribunal found that it had jurisdiction to hear and determine the application. This was because the OSH Act provides for application to the Tribunal regarding any dispute arising from employees’ rights and entitlements in circumstances where they hold a concern for their health and safety at a workplace and the entitlement to payment during this period.

Where an employee refuses to perform work in accordance with s 26 of the OSH Act, the exception to the meaning of industrial action contained in s 19(2)(c) of the FW Act applies. Thus, the State law is complementary to the Commonwealth law and there is no inconsistency. However, adopting the Attorney General’s approach, the Tribunal refrained from findings concerning whether the applicant’s conduct fell within s 26, because findings of fact or fact and law had not been made.

The decision can be read here.

The Tribunal found that the applicant did not meet the requirements of regulation 5.45B of the Occupational Safety and Health Regulations 1996 (WA) because he provided limited evidence of his work and experience with non-friable asbestos-containing material, which was not satisfactory or verified by a referee.

Background

On 27 May 2021, the applicant applied to WorkSafe for a restricted asbestos removal licence, which was subsequently refused on the basis that his training and experience did not satisfy the requirements of regulation 5.45B of the Occupational Safety and Health Regulations 1996 (WA).

The licence application required that the applicant nominate a person “to provide a detailed description of at least 12 months of verifiable (via referees) experience in asbestos removal that occurred within the last five years from the date of the application”.

The applicant provided four examples of experience. Two examples occurred in March and July 2016. A restricted licence number was not provided for the remaining two examples.

On 2 July 2021, the respondent wrote to the applicant stating that it could only consider one of the examples provided because the others did not meet the application requirements.

In February 2022, a letter sent by the respondent to the applicant stated that his licence application was refused because the applicant had:

1. not provided verifiable evidence and the respondent could not be satisfied that he is able to do asbestos work involving non-friable asbestos-containing materials in a safe and proper manner, or that he has the experience to properly supervise and manage asbestos work done under the licence; and
2. not addressed the respondent’s concerns that his referees did not corroborate the experience he provided.

Contention

The applicant’s grounds of appeal were:

1. the respondent took too long to make its decision;
2. the respondent should have considered all of the applicant’s experience;
3. there is a shortage of people with such licences; and
4. the applicant has organised training with a training service provider so that more people can become qualified to remove asbestos.

The respondent submitted that its decision to refuse the applicant’s licence should be affirmed under s 61A(3)(a) of the OSH Act.  Such decision was made on the basis that the applicant had not provided sufficient evidence of relevant and varied industry experience to demonstrate that he had the skills necessary to supervise and manage asbestos work in a safe and proper manner.

Findings

The Tribunal dismissed the application and affirmed the respondent’s decision because, as contended by the respondent, the applicant had not produced satisfactory evidence.

The applicant provided limited experience, which could only result in a finding that the experience the applicant pointed to in his Licence Application (including the supplementary evidence/example) was not verified by a referee.

The decision can be read here.