The Gate, Fence and Frames Manufacturing Award varied in line with the 2022 State Wage Case Statement of Principles, resulting a number of allowances being increased.

The Commission granted an application to vary the Gate, Fence and Frames Manufacturing Award because the proposed variation methodology and calculations, provided by the applicant, were consistent with the 2022 State Wage Case Statement of Principles and not inconsistent with the award itself.

Background

The applicant applied to vary the Award in order to:

1. increase a number of allowances in the Award; and
2. substitute a new Schedule of Respondents to remove the two named respondents.

Application details

The applicant sought to vary the allowances Clause 14 ‑ Special Rates & Provisions and the First Schedule ‑ Wages: Leading Hands and Tool Allowance by 4.75%. This variation was in line with the $40.90 per week increase for classifications at and below C10 in the 2022 State Wage Case.

Additionally, the applicant sought to vary Clause 7 ‑ Meal Allowance and Clause 20 ‑ Distant Work Allowance in line with CPI changes from June 2021 to September 2022.

Finally, the applicant sought to vary Clause 19 ‑ Travel Allowances in accordance with the rates contained in the Building and Construction General On-site Award 2020 on the basis of the nexus between it and the Award.

The application for the variations was unopposed.

The applicant did not press its application to add other respondents to the Schedule of Respondents, in light of the fact that the addition of new parties may have the effect of extending the scope on a common rule basis.

Findings

The Commission granted the application to vary the Award only in respect of the variations to the allowances but held that no variation will be made to the Schedule of Respondents at this time.

The methodology and calculations supporting the variations, which were submitted by the applicant, showed that the variations are consistent with the 2022 State Wage Case Statement of Principles. The Award did not itself specify a method for adjusting allowances which is at odds with the proposed methodology and calculations.

The decision can be read here.

Employee’s termination by employer found unfair because it was not a genuine redundancy and compensation awarded.

The Commission has awarded $39,750.95 as compensation to an employee, following her employer’s decision to terminate her employment. The Commission found the termination was not a genuine redundancy because the employee’s role continued to exist after her termination and another person was employed in the role, undertaking the same duties.

Background

The applicant commenced work with the respondent in March 2020, under an ongoing contract as a Coordinator.

On 26 February 2021, the applicant was informed that her position was no longer required due to a change in circumstances and her employment was terminated effective the same day.

Contentions

The applicant contended her termination was unfair because it was not a genuine redundancy.

A previous employee of the respondent gave evidence in the applicant’s case. This employee held the Coordinator role prior to the applicant, from 2018 to 2020. He gave evidence that the respondent contacted him in December 2020 to inform him that it wished to engage him once again. He recommenced employment with the respondent in the position of Coordinator, deposing that his duties were the same as those he undertook on the first engagement in this role and were the same as the applicant’s duties.

The employer stated that the applicant’s termination was not unfair because the applicant was made redundant as the applicant’s position was no longer required.

Findings

The Commission found that the termination of the applicant's employment was not a genuine redundancy because the applicant’s role continued to exist and had not been changed or been modified in any way, and the respondent engaged another person to undertake the role immediately after terminating the applicant’s employment.

The Commission noted that, on the evidence, it was not practicable to reinstate the applicant. The Commission found the applicant had suffered loss because of the unfair dismissal and should be awarded the sum she would have earned had her employment continued. The Commission awarded the applicant $39,750.95, being the maximum amount available under s 23A(8) of the Industrial Relations Act 1979.

The decision can be read here.

The Rules of the Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch were altered to maintain consistency with the operation of the federal counter body, pursuant to s 62(2) and in accordance with its Rules.

The Commission ordered that the applicant’s Rules be altered to change its name and its rules regarding office bearers and the eligibility for membership, as such changes fell within the Commission in Court Session’s jurisdiction, were proposed in accordance with the applicant’s Rules and no objection was made by the applicant’s members.

Background

ARTBIU, federally registered under the Fair Work (Registered Organisations) Act 2009 (Cth), had two branches in Western Australia, the West Australian Branch and the West Australian PTA Branch. Membership of either branch was dependent upon the nature of the work performed by the member concerned.

On 3 March 2022, the rules of the ARTBIU were altered to merge the two existing West Australian branches into a single branch, to be known as the Western Australia Branch, taking effect from 1 January 2023. As a result, members of the former two branches became members of the new federal branch and elections for office bearers of the new, merged Western Australian Branch, commenced.

Contentions

The application, made under s 62(2) of the Industrial Relations Act 1979 (WA), sought to alter the applicant’s Rules to maintain consistency with the operation of the ARTBIU. The proposed alterations to the Rules were extensive, including changes to the applicant’s name, eligibility for membership and rules regarding office bearers and who may hold office.

In compliance with its Rules, the applicant gave evidence that a letter was sent to all members of the applicant’s Executive by email, containing written notice of the proposed alterations to the Rules. The letter specified that the meeting of the Executive to consider the proposed alterations to the Rules would be convened on 21 September 2022. On this date, the Executive unanimously endorsed the proposed alterations to the Rules. All the applicant’s current members were notified of the proposed alterations and the reasons for the proposed alterations and were provided with the opportunity to object. Finally, the applicant deposed that no objections were raised by members.

Despite many additional proposed alterations not falling within s 62(2), the applicant contended that the Commission in Court Session had a general residual jurisdiction to deal with any matter the Registrar could deal with concerning alteration to the rules of an organisation.

Findings

The Commission in Court Session was not persuaded that it can exercise the powers of the Registrar generally, in relation to the alteration of organisations’ registered rules, in the exercise of a general residual jurisdiction and power.

The Commission's jurisdiction is limited to specific matters outlined in s 62(2) and any proposed alterations beyond those matters need to be the subject of a separate application to the Registrar.

The proposed alterations within the Commission in Court Session’s jurisdiction under s 62(2) were changes to the applicant’s name, eligibility for membership and the rules regarding office bearers and the persons who may hold office. The Commission in Court Session found that such alterations to the applicant’s Rules were authorised in accordance with its Rules. No objection was made to the proposed alterations to the Rules, nor to the proposed change of name of the applicant, by members of the applicant, who have been provided with a reasonable opportunity to do so.  Accordingly, ss 55(4)(b), 55(4)(c), and 55(4)(d) of the Act were complied with. Further, s 55(5) was complied with and no statutory issues were raised. Thus, the Commission in Court Session ordered that such alterations be made to the applicant’s Rules.

The decision can be read here.