The applicant, employed as a Funeral Director’s Assistant, filed a claim for denied contractual benefits on the basis that he believed the respondent, his employer, breached his contract by failing to pay him double time and a half for hours worked on public holidays. 

The applicant contended that the language used in both the contract and the attached overtime and allowances sheet implied an additional entitlement for work on public holidays, distinct from ordinary hours. The applicant cited past practice between the parties, where he received 250% of his ordinary rate for public holiday work.

The respondent contended that public holiday hours are not ordinary hours and therefore not subject to ordinary pay, entitling the applicant to either ordinary pay or 250% of his base rate for hours worked on the holiday, but not both simultaneously. As the contract does not address public holidays or payment for absences on such days, the respondent referred to the applicable award which stipulates payment at 200% of the ordinary rate for public holiday work. 

Commissioner Kucera acknowledged the challenges faced by the applicant, who had previously received dual payment for public holiday work. However, based on the contract terms and analysis of the award, the Commissioner determined that the applicant was entitled to either a paid day off at ordinary rates or double time and a half for hours worked on public holidays, but not both concurrently. The Commissioner dismissed the application, finding that the applicant had been correctly paid in accordance with his contract of employment.

The decision can be read here.  

Decision issued Tuesday, 26 March 2024.

The City of Albany and the Western Australian Administrative, Clerical and Services Union of Employees jointly applied to register the City of Albany Industrial Agreement 2023, and made application for the Commission to determine wage rate increases and monetary allowances.

The parties agreed on most terms of the proposed 2023 Agreement but differed on wage increases, allowance adjustments, and post-nominal expiry date provisions. The Union advocated for higher wage increases and post-expiry wage increases linked to Perth's Consumer Price Index (CPI), citing consistency with past agreements and the need to counter rising living costs. They highlighted the City's financial strength and positive economic outlook as supporting factors. Conversely, the City proposed fixed percentage increases, citing budgetary certainty and the volatile inflationary environment.

Regarding allowances, the Union sought increases on July 1 of 2023, 2024, and 2025, based on wage adjustments or Perth CPI, citing past practices. However, historical evidence revealed variations in past agreements, with some providing fixed increases or CPI-based adjustments. Concerning post-nominal expiry date increases, the Union proposed a clause for inflation-linked wage increases if no new agreement was reached or initiated by the City after the nominal expiry date. However, the City opposed this, citing past challenges and potential hindrances to bargaining efforts. 

Senior Commissioner Cosentino made orders that the Agreement include annual wage increases of 4.5%, 4% and 4% across three years, a one-off payment for Outside Employees, wage-related allowance increases corresponding to wage increases, and expense related allowance increases in accordance with annual changes in expenses. The Senior Commissioner decided against the inclusion of post-nominal expiry date increases, noting that such clauses could impede bargaining.

The decision can be read here.

Decision issued Tuesday, 14 May 2024.

The Commission, of its own motion, reviewed the Farm Employees’ Award, deferring certain proposed changes until after determination of Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00901. These deferred matters included minimum hours for part-time employees and transitional provisions for implementing changes in the dairy industry. Orders were later made in Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00912, expanding the scope of the Award to include dairy farm employees. 
In light of this expansion, interested parties conferred on the adjourned matters, reaching a consensus position on issues such as minimum hours for part-time dairy farm employees and transitional provisions. This consensus aimed to balance the interests of employers and employees in the industry.

Senior Commissioner Cosentino considered the interested parties’ consensus position to strike an appropriate balance between employer and employee interests. The agreed variations, outlined in the Schedule, were deemed desirable to ensure fairness to employees while facilitating efficient work organisation within the industry. These variations included new definitions related to dairy farming and revised clauses concerning the employment relationship, particularly for part-time employees in dairying. The new clauses emphasised written agreements on work patterns and minimum engagement requirements for part-time employees in the dairy sector.

The decision can be read here.

Decision issued Monday, 25 March 2024.

The Commission has dismissed an appeal made by a police officer against his removal based on a loss of confidence by the Commissioner of Police. 

The appellant was removed due to concerns about his integrity following a failure to accurately disclose his medical history in the application process to be appointed as a police officer. Despite initial assertions of fitness for duty, subsequent investigations revealed discrepancies between the appellant's disclosures during recruitment and his actual medical condition, including ongoing health issues and a history of surgeries not disclosed to WA Police. 

The appellant contested his removal, alleging procedural unfairness and argued against the basis for the loss of confidence in his suitability as a police officer. Additionally, the appellant contended that as a successful police officer in the performance of his duties, it was against the public interest for him to be removed.

The Commission determined that the appellant's failure to fulfill his duty of disclosure regarding his medical history eroded the respondent's confidence in his suitability as a police officer.  Despite the appellant's arguments regarding procedural fairness and the public interest, the Commission found that the removal was justified based on the evidence and the importance of upholding the integrity and honesty required of police officers.

The Commission acknowledged the personal hardship the appellant may face due to his removal; however, it upheld the removal decision as necessary to preserve public trust in the Police Force, dismissing the appeal.
 

The decision can be read here. 

Decision issued Wednesday, 17 April 2024.