The applicant applied to the Work Health and Safety Tribunal (Tribunal) for an external review of the respondent’s decision to cancel a provisional improvement notice (PIN). The applicant’s employer sought leave to intervene in the proceedings, arguing that it had a direct interest in the outcome as it would bear the consequences if the Tribunal set aside the decision.  The respondent supported the employer’s application, stating that the employer was best placed to provide additional information of the circumstances to assist the Tribunal.

The Tribunal sought submissions from the parties regarding the matter of granting leave to intervene. The employer argued that while the respondent is the proper contradictor, its submissions are limited under Work Health and Safety legislation and therefore may not address all necessary matters at hand. The respondent supported this view, citing the employer’s direct interest in the matter, their compliance with the issued PIN, and the assistance they would provide to the Tribunal. The applicant did not oppose the employer’s intervention but insisted that the respondent should fully participate in the proceedings. The applicant further argued that since the employer had already complied with the PIN, the risk in the workplace had been removed, and therefore there was no compliance risk to the employer if the PIN were to be reinstated.

In reviewing submissions by the parties, the Tribunal referred to the principles set out in the Industrial Relations Act 1979 (WA) (IR Act) and relevant case law, which emphasise that a person whose rights will be directly affected by an order must be given a full and fair opportunity to be heard.

The Tribunal concluded that the employer’s interest in the matter was sufficient to justify intervention. The Tribunal was persuaded that the intervening party would be directly affected by the order sought by the applicant and was best placed to provide additional evidence about the current circumstances. Accordingly, the Tribunal issued an order under s 27(1)(k) of the IR Act, to allow the employer to intervene in the application.

The decision can be read here.  

The applicant made an application for an interpretation of the term "full pay" as used in s 82 of the Public Sector Management Act 1994 (WA) (PSM Act) and the Department of Justice (Youth Custodial Officers) CSA Agreement 2022. This issue arose when a Juvenile Custodial Officer, who was receiving a Higher Duties Allowance (HDA), was suspended due to a breach of discipline. The officer was initially paid the HDA during the suspension, but it was later discontinued.

The applicant argued that "full pay" should include the HDA during the suspension period, supported by the officer’s rostered acting position, and sought a declaration interpreting “full pay” under s 46 of the Industrial Relations Act 1979 (WA) (IR Act), because the term was not explicitly defined in the Agreement.

The respondent contended that the Public Service Arbitrator lacked the jurisdiction to make the declaration sought by the applicant, and that interpreting "full pay" in the PSM Act would require statutory interpretation principles, which differ from those applied to an Award or Agreement.  The respondent also argued that a declaration under s 46 of the IR Act would not solve the dispute, and urged the Arbitrator to exercise discretion against doing so.

Commissioner Walkington considered whether the Arbitrator had jurisdiction to interpret the term "full pay" and, if so, whether to exercise discretion to issue a declaration. The Commissioner noted that s 46 of the IR Act empowers the Commission to interpret awards and agreements it has made but limits statutory provisions like the PSM Act. The Commissioner also noted that the Agreement did not contain provisions regulating the suspension of employees, and a declaration under s 46 would not assist in determining the meaning of "full pay" in the context of suspension and HDA application.

The Commissioner declined to make the declaration and concluded that the Public Service Arbitrator did not have the necessary jurisdiction to declare the meaning of a statutory term under s 46 of the IR Act, and that a declaration would not resolve the dispute regarding the meaning of "full pay" in the context of the suspension. Accordingly, the application was dismissed.

The decision can be read here. 

In this matter, a decision of the Industrial Magistrate relating to limited contracting out of long service leave (LSL) and contractual set-off was appealed to the Full Bench.

In the original claim, the applicant was employed as a commission-only real estate agent by the respondent for almost ten years.  While employed, the applicant was paid remuneration in the form of commission only on real estate sales he brokered. It was accepted that the applicant’s commission payments considerably exceeded his award entitlement and his legislative leave entitlements, and his employment contract included a clause stating commissions encompassed all leave, making leave unpaid and negating further leave payments on termination.

Upon termination of his employment, the applicant launched proceedings in the Industrial Magistrates Court (IMC), claiming, among other things, an entitlement to accrued but untaken LSL under the Long Service Leave Act 1958 (WA) (LSL Act).  Key to this entitlement was s 5 of the LSL Act, as in force immediately prior to 1 July 2022, which provided that an employer and employee may agree that the employee may forgo their LSL entitlement if the employee is given an adequate benefit in lieu of the entitlement and the agreement is in writing.

Industrial Magistrate Scaddan upheld the applicant’s claim for accrued but untaken LSL, rejecting the respondent’s attempt to set off over-award commissions against the LSL entitlement. The Industrial Magistrate held that s 5 did not permit contracting out of future LSL entitlements via wages components and found the benefit under the contract inadequate.

The respondent appealed the decision of the Industrial Magistrate on the following key issues:

• Whether s 5 of the LSL Act was sufficiently broad to permit the parties to contract out of LSL entitlements before those entitlements have accrued or crystalised, but which are due to come into existence in the future and, if so, whether the contract clause in this matter satisfied the statutory requirement.
• Whether the respondent’s over-award commission payments to Mr Jowett could be set off against its statutory liability for LSL on termination.

The majority of the Full Bench interpreted s 5 broadly, allowing contracting out of contingent (future) LSL entitlements if the employee receives an adequate written benefit. Commissioner Tsang and Commissioner Kucera found the contract satisfied these requirements, and as such the appellant had no liability to pay the respondent LSL on his termination. In contrast, Senior Commission Cosentino adopted a narrow construction like the Industrial Magistrate at first instance, finding s 5 did not apply to LSL short of an accrued entitlement.

Given their earlier findings on the first issue (which resulted in the same order to pay being set aside), the majority of the Full Bench considered they did not have to deal with this part of the appeal and would have dismissed it.  Applying key set off case law, Senior Commissioner Cosentino highlighted the question of whether there was a close connection between the purpose of the payment and the entitlement to be satisfied by the payment. Reference in the relevant contract clause to "all leave entitlements as determined by Legislation" was sufficiently specific to be connected to LSL, including future accrued LSL entitlements.

The Full Bench dismissed the appellant’s appeal challenging LSL liability but upheld its appeal on the set-off issue, quashing orders requiring the appellant to pay the respondent for pro-rata long service leave.

The decision can be read here. 

The applicant filed a claim with the Commission seeking compensation against the respondent related to alleged contractual breaches including pay for reduced hours, unpaid overtime, notice period, redundancy, and annual leave entitlements.

The respondent denied the applicant was owed compensation, asserting that all entitlements were paid and that the applicant agreed to reduce her hours to part-time and a four-day working week, with notice and redundancy payments complying with the National Employment Standards.

The applicant initially held a full-time position as Director of Product Development and Customer Experience, as specified in her employment contract.  The contract explicitly stated the position was full-time but did not specify the exact hours constituting full-time work.

On 14 November 2022, the applicant and the respondent met to discuss reducing business expenditure, during which the applicant agreed to reduce her hours to four days per week (part-time, 30.4 hours) from full-time hours. The respondent sent a letter confirming this variation, requesting the applicant’s written agreement, which the applicant did not sign or return, though the respondent provided evidence it was sent via a digital communication platform.

The applicant contested the validity of the variation, arguing that any change to her contract must be in writing as per the original contract terms, and she did not provide written consent. However, the Commission found that the applicant’s oral agreement and conduct were sufficient to validate the change to part-time hours despite the absence of a signed written agreement.

 The applicant claimed payment for overtime and additional hours worked beyond her agreed part-time schedule, including 80.5 logged hours and 117 unlogged hours. The employment contract included clauses stating the applicant’s salary covered all hours worked, including overtime, and that working hours may vary as reasonably necessary for business requirements, averaged over a 12-month period.

The Commissioner noted that the employment contract’s remuneration was an all-inclusive salary covering overtime and that the policies concerning overtime were discretionary and not contractual. There was insufficient evidence to show that hours worked beyond the agreed schedule were unreasonable or required by the employer. Thus, the claim for additional payment for overtime or time off in lieu was not supported under the contract terms and was dismissed.

The applicant’s argument invoking unjust enrichment and quantum meruit principles was considered but found inapplicable because no contractual term entitled her to payment for additional hours beyond the all-inclusive salary. The Commission emphasised that any claim must be anchored in a contractual term, which was not established by the applicant. 

Commissioner Walkington concluded that the applicant’s employment contract was validly varied to part-time hours with a corresponding salary adjustment and therefore claims for a payment based on full time hours was dismissed. The applicant’s claims for additional hours and overtime were also dismissed, as the Commissioner found the employment contract included an "all-inclusive salary" clause covering all overtime and penalty rates, and required work hours to be averaged over 12 months without additional overtime.

However, the Commissioner ruled that the applicant was entitled to two additional weeks’ notice pay calculated on part-time hours, as the employment contract stipulated a four week notice for employees with one to three years of service.  The commission found the applicant was entitled to the full four weeks but had only received two weeks.  Accordingly, the respondent was ordered to pay the applicant two weeks’ salary amounting to $6,153.72 gross.

The decision can be read here.