Archive: Dec 11, 2023, 12:00 AM

Union Election Challenge Dismissed: Irregularity not established.

The applicant, a nurse of 29 years, challenged the election for Secretary of the Australian Nursing Federation (ANF), citing irregularities, including insufficient time for ballots to be returned by post, inclusion of unfinancial members in the electoral roll, and non-compliance with prior orders. Declarations sought included voiding the election result and amending the ANF’s rules to extend ballot distribution time. The respondents, the ANF and the WA Electoral Commission opposed the claim, contending that there were no irregularities.

A preliminary issue questioned whether the applicant could challenge all officeholders’ election results. The respondents contended that she only had standing to challenge the election for the office of Secretary, that being the office she nominated for, and she was not able to challenge the result of the election generally for all officers.

The Chief Commissioner found that the applicant had standing to challenge the election generally. This decision was based on the terms of the statute, specifically s 66(1)(a) of the Act, which allows a person who is or has been a member of an organisation to make an application to the Chief Commissioner to inquire into an election for an office in the organisation. The Chief Commissioner also emphasised the importance of democratic control of organisations, as outlined in section 6(f) of the Act, which encourages full participation by members in the affairs of the organisation and allows current or former members to challenge elections is consistent with this objective.

The ANF has 37,000 members, and Ms Reah became Secretary due to Mr Olson's resignation. The applicant raised concerns about the non-receipt of ballots, seeking an order to declare the election void and rule changes. The WAEC certified the results, with Ms Reah winning the Secretary position. The central issue involved the obligations of the Returning Officer, with the applicant arguing for a mandatory extension due to potential delays by Australia Post.


Non-compliance with orders

The Chief Commissioner concluded that the delay in distributing an earlier decision of the Commission regarding the ANF’s non-compliance with its Rules, did not constitute an irregularity related to the election process. The Chief Commissioner clarified that irregularities must be connected to the election itself, and the timing and distribution of the decision did not meet this criterion. As a result, the applicant’s arguments on this ground faced difficulties in establishing their validity, and the Chief Commissioner did not find an irregularity in connection with the election based on the delay in distributing the decision.


Failure by the Returning Officer to extend the ballot

The applicant argued for a mandatory duty based on the ANF’s Rules, while the WAEC contended that the Returning Officer had discretion, citing s 69(5) of the Act. The Registrar and parties also discussed the interaction between the Act, Regulations, and ANF Rules. The applicant emphasised the obligation to prevent irregularities. While the ANF asserted the prevalence of statutory provisions over union rules. The Chief Commissioner ultimately rejected the applicant’s claims, stating that the conduct of the election was consistent with the ANF’s Rules and did not constitute an irregularity.

The Chief Commissioner also addressed the applicant’s concerns about postal delays and non-receipt of ballots. He noted that the evidence was scant regarding reasons for members not receiving ballots and highlighted the speculative nature of such claims. The Chief Commissioner concluded that the election process, including the three-week timeframe, was normal and consistent with established practices. He emphasised that the WAEC did not depart from rules or practices, and members also bore responsibility for the election’s conduct, such as maintaining correct addresses under the ANF’s Rules. The Chief Commissioner cited previous cases to distinguish situations involving postal delays and underscored the impracticality of guaranteeing the delivery of each ballot. Overall, it was found that no irregularities that would invalidate the election existed.



On the evidence before the Chief Commissioner, it could not be concluded that the Returning Officer was under any obligation, as a matter of law, based on the legal principles, to extend the ANF election in this case.  Further, the Chief Commissioner could not conclude on the evidence that the election was conducted in such a manner that involved a departure from some rule, established practice, or generally accepted principle governing the conduct of an election, so as to constitute an irregularity requiring the Chief Commissioner’s intervention under s 66(2)(e) of the Act. Thus, the application was dismissed.


The decision can be read here.

Magistrate Orders Payment for Prison Officer’s Denied Sick Leave

Mr Paterson, a prison officer with over 11 years of service, faced a dispute with the respondent regarding his application for three days of personal (sick) leave. The dispute arose when the respondent initially rejected both personal (sick) leave and personal (carer's) leave claims, although the latter was later accepted upon review. The applicant, representing Mr Paterson,  alleged a breach of cl 71.1 of the Department of Justice Prison Officers Industrial Agreement 2020, asserting that the respondent, through its superintendent, breached the agreement by refusing to accept Mr Paterson’s evidence, which met the minimum requirements.

The applicant contended that the respondent’s refusal to grant personal (sick) leave breached either the Department of Justice Prison Officers Industrial Agreement 2020 or the Minimum Conditions of Employment Act 1993 (WA). The respondent denied any contravention, arguing that the MCE Act did not apply to prison officers’ personal leave and that the superintendent’s discretion was exercised correctly.

Industrial Magistrate Kucera concluded that Mr Paterson's request for personal (sick) leave was reasonable and legitimate, and the department's refusal constituted a breach of cl 71.1 of the Agreement. Industrial Magistrate Kucera found that the respondent breached cl 71.1 of the Agreement when it refused to accept Mr Paterson’s request to take personal (sick) leave for three shifts. Industrial Magistrate Kucera made an order under s 83(1) of the IR Act requiring the respondent pay Mr Paterson three days of personal leave for the three dates specified dates.

The decision can be read here.

Employee’s Appeal Dismissed: Board Deems Reinstatement Impractical Amidst Secondary Employment Breach

The appellant, who served as an Enforcement Manager at the respondent until his dismissal, challenged his termination, contending that the disciplinary process leading to it was marred by ineptitude, procedural unfairness, and a lack of consideration for relevant factors. His involvement in secondary employment, specifically as a director and shareholder of 'Lancelin Beach Breaks,' had decreased due to personal circumstances, including his wife's health issues. Allegations regarding workplace conduct emerged in 2020, culminating in a suspension in early 2021. In September 2021, an additional allegation related to the respondent’s secondary employment policy surfaced, leading to the appellant’s admission of a breach of discipline. Despite requesting an extension and engaging in the disciplinary process, he was ultimately dismissed in November 2021.

The appellant argued that the dismissal should be adjusted due to flaws in the disciplinary procedure causing confusion, inadequate consideration of personal circumstances and health, diminishing involvement in secondary employment, adherence to legal advice during the process, and the disproportionality of the dismissal to the misconduct. The respondent, however, contended that the dismissal was a justified response to the appellant’s breach of the Public Sector Management Act 1994 (WA) and failure to comply with directives on secondary employment.

The Public Service Appeal Board determined that revoking the dismissal and imposing alternate penalties under the PSM Act would not achieve the objective of compliance with s 102(1) of the Act. Considering the appellant’s demonstrated lack of intent to seek approval for secondary employment, the Appeal Board deemed reinstatement inappropriate, as it would place him in breach of statutory obligations. Consequently, the Appeal Board dismissed the appeal, affirming the impracticality of reinstating the appellant in light of the legal framework governing secondary employment.

The decision can be read here.

Appeal Dismissed for Non-responsiveness and Failure to Prosecute

The applicant, who served as a Customer Service Officer with the Department of Communities under the Director General's purview, faced dismissal after an extended sick leave period commencing in May 2018. Despite being directed to return to her Halls Creek position following a hiatus, the appellant, grappling with distress, sought an alternative solution, initiating a return-to-work program in June 2020. The respondent, deeming her unfit for the role, proposed her retirement in August 2020, eventually leading to a disciplinary process in March 2021 and a subsequent proposal for dismissal in October 2021, met with non-compliance.

The appellant sought reinstatement.  This was opposed by the respondent, which asserted that the dismissal decision was both sound and justifiable, following a procedurally fair disciplinary process. Amidst an intricate procedural history marked by the appellant’s repeated requests for extensions, adjournments, and filing discrepancies, the Commission scheduled a show cause hearing, where the appellant failed to appear.

The Appeal Board concluded the appellant had due notice and was provided ample opportunities for her input.  It found her non-responsive to various requests and a failure to meet procedural expectations.  Consequently, under section 27(1)(a) of the Industrial Relations Act 1979 (WA), the appeal was dismissed as the appellant did not discharge the onus and failed to appropriately pursue the matter.

The decision can be read here.

Dismissal Appeal Over COVID-19 Vaccination Compliance: Board Quashes Dismissal Decision, Denies Compensation

The appellant, employed as a Level 5 Senior Field Worker in the Wheatbelt Region by the respondent, faced dismissal due to non-compliance with COVID-19 vaccination directives. The Chief Health Officer's Health Worker Directions and the subsequent Community Care Services Worker (Restrictions on Access) Direction mandated that the appellant disclose his vaccination status or provide exemption evidence. Failure to comply led to the appellant’s placement on a "no work, no pay" arrangement, culminating in a disciplinary process and dismissal.

The appellant sought compensation equivalent to salary and entitlements, challenging the applicability of the 'no work, no pay' principle to public service officers. The respondent countered, citing its relevance and the Public Service Appeal Board’s purported lack of power to grant the requested orders. The Appeal Board, after considering provisions in the Public Sector Management Act 1994 (WA), awards, and agreements, concluded that the appellant, unable to lawfully perform full duties during the specified period, lacked an entitlement to payment. Additionally, the appellant’s argument against the 'no work, no pay' principle was not compelling, resulting in the Appeal Board quashing the dismissal decision without granting further compensation orders.

The decision can be read here.

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