In response to the current COVID-19 outbreak in Western Australia, the Commission in Court Session has issued an order reinstating provision of the 2020 COVID-19 General Order, pertaining to the taking of unpaid leave, with amendments to reflect the changed isolation requirements.

2020 COVID-19 General Order

In April 2020, the Commission in Court Session issued the COVID-19 Flexible Leave Arrangements General Order under s 50 of the Industrial Relations Act 1979 (WA).  The 2020 General Order contained provisions for unpaid pandemic leave, as well as provisions for the taking of annual leave at half pay. The 2020 General Order ceased to have effect on 31 March 2021.

Current application

On 2 March 2022, in anticipation of increasing COVID-19 cases in WA, the Hon Minister for Industrial Relations made an application for a new General Order to apply to private sector employees. The Minister sought to reinstate the unpaid pandemic leave provisions contained in the 2020 General Order. The reasons for the minister’s application included:

• Seeking to address the regulatory gap for private sector State system employees who are required to isolate due to COVID-19 and may lack access to suitable leave entitlements
• Supporting public health objectives
• Providing clarity for many employers, and protection for employee entitlements; and
• To be consistent with the entitlement to unpaid pandemic leave for national system employees covered by certain modern awards.

The Minister proposed amendments to the provisions of the 2020 General Order, the effect of which enables an employee to take up to two weeks’ unpaid pandemic leave, as a cumulative entitlement, over more than one period, subject to the total period of unpaid pandemic leave taken not exceeding two weeks. An amendment was also made to make it clear that the leave available under the proposed General Order is ‘unpaid pandemic leave’.

Findings

The Commission in Court Session considered that reinstatement of the provisions with amendments were consistent with the objects of the Act. A General Order was issued in the manner proposed by the Minister. The General Order will operate until 30 September 2022 and may be extended on application by a party or at the Commission’s initiative.

The decision can be read here.

The General Order can be read here.

The Full Bench has dismissed four interlocutory applications raised by the appellant in a Full Bench appeal. The Full Bench held that the applications raised evidence and matters not dealt with in the first instance proceedings or were not of relevance to the current proceedings.

Background

In 2019, the appellant brought a claim for a denial of contractual benefits to the Commission, which was dismissed. The appellant commenced an appeal  to the Full Bench.

Prior to the hearing of the Full Bench appeal, the appellant brought four interlocutory applications. The Full Bench listed the applications to be heard.

Interlocutory applications

The substance of the four interlocutory applications, respectively, were that the appellant:

• Sought to amend his first instance claim before the Commission, to bring in claims for long service leave, sick leave, and superannuation;
• Sought discovery of documents from the respondent in relation to a range of subject matter, to assist in establishing his grounds of appeal in the appeal proceedings;
• Sought admissions from the respondent as to the identity of the respondent in the appeal; and
• Asserted a conflict of interest against the respondent’s solicitors, Lavan, and requested disclosure of costs and expenditure incurred by the respondent and other employing entities, in relation to the appellant’s litigation against them.

Findings

The Full Bench noted that under s 49(4) of the Industrial Relations Act 1979 (WA), an appeal to the Full Bench is to be heard and determined on the ‘evidence and matters raised’ in the first instance proceedings. The Full Bench reiterated that it is not an opportunity for a party to attempt to reargue their case at first instance; or to seek interlocutory orders to bolster their case on appeal, in relation to matters not dealt with at first instance.

In relation to the first, second and third interlocutory application, the Full Bench outlined that the matters were beyond the scope of matters to be considered by the Full Bench, and that the time to bring such applications was prior to or at the first instance proceedings before the Commission.

In relation to the fourth application, the Full Bench found that it was not a matter relevant to the proceedings before the Full Bench. The interlocutory applications were dismissed.

The decision can be read here.

The Commission has issued orders establishing an Interim Union Council for the Media, Entertainment and Arts Alliance of Western Australia (Union of Employees) (respondent).

The respondent has a counterpart federal body, registered under the Fair Work (Registered Organisations) Act 2009 (Cth). In May 2010, the Commission issued a certificate under s 71(5), enabling persons elected to office in the federal Association to hold the corresponding office in the State counterpart.

Due to changes in the registered rules of the federal Association, the rules of the federal Association and rules of the respondent are no longer aligned, meaning that the requirements of the s 71(5) certificate could not be met.

The applicant, a member of the respondent, brought an application seeking an order for the establishment of an Interim Union Council, until such a time as the respondent’s rules can be amended in line with the federal Association. The respondent was in support of the application.

The Commission was satisfied that orders should be made under s 66 of the Industrial Relations Act 1979 to establish an Interim Union Council, enabling the respondent to continue its affairs and to vary its rules, in order that a new s 71 certificate can be issued in due course.

The decision can be read here.

The Full Bench has reiterated the principle that a speaking to the minutes is for the limited purpose of ensuring that an order is consistent with the reasons for decision and is not an opportunity for the party to reargue their case and raise extraneous matters.

On 8 February 2022, the reasons for decision and minutes of proposed order of a Full Bench appeal were handed down. The minutes of proposed order varied the decision of the Commission at first instance by varying the sum of compensation ordered. The appellant sought to speak to the minute, and filed detailed submissions, and requested to be heard on the matter.

The Full Bench, referring to Sheahan v State School Teachers Union of WA (Inc) (1989) 69 WAIG 2966, reiterated that a speaking to the minutes under s 35 of the Industrial Relations Act 1979 (WA) is for the limited purpose of ensuring that the proposed order of the Commission is workable and consistent with the Commission’s reasons, and that the order contains no provisions which have been inserted inadvertently or by mistake.

The Full Bench considered that the appellant was attempting to re-argue elements of his case and to raise additional matters and held that the minutes of proposed order were consistent with its reasons for decision.

The decision can be read here.

The Full Bench has dismissed an appeal against a decision of the Industrial Magistrates Court, finding that the employee had failed to establish that the respondent had contravened the Public Sector CSA Agreement 2019 (Agreement), and that the Industrial Magistrates Court did not have jurisdiction to enforce the voluntary severance offer.

Background

The appellant was employed by the respondent in the position of Regional Coordinator Operations. On 23 September 2020, the appellant was made an offer of voluntary severance under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (Regulations).

The appellant contended that he was provided with incorrect advice by officers of the respondent, and as such, was only given three weeks to accept the offer of voluntary severance, instead of eight weeks as prescribed by the Regulations, depriving him of five weeks’ salary.

First instance

The appellant made a claim in the Industrial Magistrate’s Court, on the grounds that the shortened period of employment contravened the offer of voluntary severance and the Regulations. The respondent applied to the court to dismiss the appeal for want of jurisdiction. Her Honour, Industrial Magistrate O’Donnell, granted the respondent’s application and dismissed the claim.

Appeal

The appellant appealed the decision of the learned Industrial Magistrate to the Full Bench under s 84 of the Industrial Relations Act 1979 (WA) (Act), on the ground that cl 51.1 the Agreement  was contravened. The appellant contended that the respondent failed to comply with the Public Sector Management Act 1994 (WA) (PSM Act), the Regulations and the Agreement, and that the court was able to enforce statutory instruments.

Findings

The Full Bench outlined that the Industrial Magistrate’s Court is established under Part III of the Act as an inferior court of record. As such, it has no inherent jurisdiction and powers, and they are as specified in the Act.

The Full Bench noted that under s 81AA of the Act, the PSM Act, and the Regulations made under it, were not a specified statutes under which the court obtains jurisdiction. The Full Bench held that while the Agreement was an instrument that may be enforced by the court under s 83(2)(b) of the Act, this would only apply where the appellant could establish that the respondent contravened or failed to comply with the Agreement. The Full Bench held that no contravention or failure to comply was established, and the appeal was dismissed.

The decision can be read here.