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Order issued to establish Interim Management Committee

The applicants, members of the respondent union, had standing to seek orders under s 66 of the Industrial Relations Act 1979, due to previous Commission orders made in 2018 and 2022. 

The respondent union applied under s 62 of the IR Act to alter its rules, but the Registrar indicated that necessary procedural requirements were not met, prompting the suggestion for an Interim Management Committee to facilitate the process.

The respondent union had previously faced difficulties with the requirements of meeting a quorum, as required by the organisation rules, making it difficult for form a valid management committee or hold special meetings. An order previously granted by the Commission waving the quorum requirement had expired, which had resulted in invalid meetings of the management committee.

The Chief Commissioner reviewed two key compliance issues: the respondent union's rules for a special executive meeting and the election of Vice President positions.  The Chief Commissioner concluded the waiver of compliance was necessary to address the ongoing quorum issues that have affected the respondent union, supported by evidence of agreement among the members. Also noted was a potential issue regarding the number of Vice Presidents required for the organisation, however it was determined that proposed alterations to the rules would clarify this matter. 

Chief Commissioner Kenner made orders for the establishment of an Interim Management Committee to facilitate necessary rule amendments and resolve ongoing quorum issues for the respondent union. The order issued is set to operate until 31 October 2025, allowing for further applications if needed.

 

The decision can be read here

Commissioner refuses application to dismiss appeal due to delay in progress

The applicant initially referred a matter to the Commission, under the Public Sector Management Act 1994, regarding the respondent’s decision to take disciplinary action against her and demote her position from Principal Officer to Senior Officer.  The parties attended a conciliation conference, without reaching a settlement, and the respondent agreed to provide video evidence of the alleged misconduct of the applicant. The applicant was to view the evidence and then consider her options before progressing with the matter, however due to the location of the evidence and the applicant’s work schedule her opportunities were limited.

Ongoing communication between the applicant and her legal representative took place, with an aim to obtain additional evidence and negotiate a settlement with the respondent.  The respondent subsequently applied to the Commission to dismiss the application alleging that the applicant had not progressed her case. The applicant contended that the delay in progressing the matter were attributed to her own efforts to negotiate a settlement with the respondent, and to gain access to evidence supplied by the respondent.  

The Commissioner reviewed the circumstances surrounding the case, including the ongoing efforts of the applicant to engage with her lawyer and the respondent in order to negotiate a settlement.

Commissioner Walkington concluded that there was no evidence the applicant’s behaviour had ‘been intentional and continuous’ or that her delay was ‘inexcusable’. Rather, the applicant had a reasonable belief that she was progressing her application through various means including negotiations conducted by meetings and correspondence.  Accordingly, the respondent’s application to dismiss the appeal was refused. 

 

The decision can be read here.

Commission varies Plaster, Plasterglass and Cement Workers' Award No. A 29 of 1989

The Commission, of its own motion, initiated a review of the Plaster, Plasterglass and Cement Workers’ Award under s 40B of the Industrial Relations Act 1979. The proceedings were initiated to ensure the award does not contain wages less than the statutory minimum wage, to remove discriminatory clauses and outdated provisions, and align to the award with current employment standards prescribed by the Minimum Conditions of Employment Act 1993

The Commission provided notice of its intention to vary the Award to UnionsWA, the Chamber of Commerce and Industry WA, the Australian Resources and Energy Employers Association, the Minister for Industrial Relations, the named employer parties to the Award, the Association of Wall and Ceiling Industries and the Construction, Forestry, Mining and Energy Union of Workers (WA) as the union party to the Award.  The Commission also sought further input from interested parties. The Minister and the Union both confirmed their support for the proposed variations with some further minor variations for accuracy and clarity. The variations were not opposed.

Key amendments to the award include the removal of the year from the title, grouping clauses under functional headings, updating definitions and references to outdated acts, and deleting obsolete clauses. Additionally, provisions for flexible working arrangements, termination of employment, wages, leave provisions – including family and domestic violence leave and parental leave, right of entry provisions and redundancy provisions have been updated to align with current standards and legislation.

 

The decision can be read here.

Full Bench dismisses appeal due to absence of appealable error

In the original application, the appellant commenced a claim for an equal remuneration order. The substance of the application however, suggested the appellant was seeking the recovery of unpaid wages from the respondent. The Commissioner listed the appellant’s application for a hearing to show cause why it should not be dismissed for want of prosecution. The hearing was listed for a variety of reasons, including the appellant’s inaction on progressing the application and complying with directions or communication with the Commission. After failing to appear for the show cause hearing, the Commissioner dismissed the appellant’s application.

The appellant appealed against the order of the Commissioner, citing the primary basis for the challenge was that the appellant was unable to attend the show cause hearing due to a personal matter. No challenge was made by the appellant to the Commissioner’s findings, nor was there any challenge against the claims of failing to communicate with the Commission.

The Full Bench considered appellant’s argument; however, the Full Bench was not persuaded there was any error made by the Commissioner in dismissing the original claim, nor had any appealable error been demonstrated by the appellant. Accordingly, the appeal was dismissed. 

In handing down its reasons for decision, the Full Bench highlighted the importance of parties to proceedings before the Commission to exercise prompt and clear communication with the Commission and Registry, in order for matters to be dealt with expeditiously. 

The decision can be read here

 

Commission finds Agreement does not mandate 12 hour break for officers

The applicant applied to the Commission regarding an interpretation of the Department of Justice Prison Officers’ Industrial Agreement 2022, specifically whether clause 28 of the agreement mandates a 12 hour break for officers who work overtime after a 12 hour shift.  The respondent contended that such a break is required according to the Agreement, while the applicant argued otherwise, stating that the clause which governs shift patterns, overtime requirements and minimum time off duty has a different interpretation.  

The key provisions of Clause 28 include:

  • 28.1: officers working a 12 hour shift are entitled to 12 hours off duty between successive shifts.
  • 28.2: In extreme emergencies, officers may be required to work 2 hours of overtime, which necessitates at least 10 hours off duty before returning to work.
  • 28.3: Other officers required to perform overtime must have at least 10 hours off duty between successive shifts.
  • 28.4: If an officer does not have at least 10 hours off duty before their next shift, they are not required to commence work until they have had the necessary rest.

  
The applicant stated that officers who voluntarily choose to work overtime between successive 12 hour shifts are only entitled to a 10 hour break.  The applicant further emphasised that the Agreement allows for flexibility in overtime provisions, and that a strict limitation is not imposed on the amount of overtime an officer can work, including voluntary overtime.  The applicant stated that such an arrangement would prevent instances where officers could only work overtime in extreme emergencies, which may not align with practical operational needs.  

The respondent, however argued that a straightforward reading of clause 28 would clearly indicate that officers working 12 hour shifts must receive a 12 hour break, except in extreme emergencies. Further, the respondent contended that the applicant’s interpretation of the Agreement was overly complicated and not supported by the text of the Agreement, also emphasising that the Agreement should be applied in conjunction with appropriate fatigue management guidelines, designed to protect the safety and wellbeing of officers when working long shifts. 

Commissioner Walkington found that the Agreement cannot be read to say that the only time overtime can be undertaken by an officer rostered on 12-hour shifts is in an extreme emergency. The Commissioner concluded that officers working 12-hour shifts can voluntarily undertake overtime and that clause 28.4 applies, requiring a 10-hour break between successive shifts. The Commissioner also determined that the parties did not intend for clause 28.1 and 28.2 to preclude officers on 12-hour shift patterns from working overtime on a voluntary basis.  Accordingly, a declaration was issued stating that the Agreement does not require the applicant to provide officers a 12 hour break where they have voluntarily worked overtime following a 12 hour shift.

 

The decision can be read here

 

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