The Occupational Safety and Health Tribunal (Tribunal) has reviewed and affirmed an improvement notice issued to the applicant, GHD Pty Ltd, concerning reg 3.140(2) of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations).

Background

The applicant is an Australian operation of an international professional services company.

In 2018, the applicant was engaged by another company to design a ship building facility. The applicant incorporated pre-cast concrete hollowcore panels for the flooring system of the ship assembly hall. A contractor was engaged to lift and install the panels into the floor.

In 2019, a concrete panel fell and landed on the concrete dock, destroying the panel and damaging part of the concrete deck. Worksafe Inspectors attended the site and following inspections, issued the applicant with an Improvement Notice.

The Improvement Notice stated that the applicant’s written safety report did not appropriately identify the relevant hazards or risk associated with the design, including the hazard of hollowcore panels falling when being lifted by a crane.

The applicant applied to the Worksafe Commissioner for a review of the Improvement Notice, which was affirmed by the Commissioner with a modification to the date of compliance with the notice.

The applicant then referred the decision of the Worksafe Commissioner to the Tribunal for a further review of the Improvement Notice.

Contentions

The applicant contended that:

• the Tribunal ought to revoke the Improvement Notice on the basis that, as a matter of law, the alleged contravention was not within the scope of its duty;
• there were no reasonable grounds for forming an opinion that the applicant was in contravention of the Occupational Safety and Health Act 1984 (WA);
• the design documentation appropriately identified the relevant hazards or risks associated with the design and the control or elimination of those risks during the design process; and
• the Improvement Notice issued to them was uncertain, vague and ambiguous.

The Worksafe Commissioner maintained that the Improvement Notice was validly issued, that the applicant failed to comply with its duty prescribed in reg 3.140 of the OSH Regulations and that the Improvement Notice, when read as a whole, does not suffer from the defects alleged by the applicant.

The Worksafe Commissioner contended that the Improvement Notice should be affirmed with modification to allow additional time for compliance.

Findings

Commissioner Walkington found that the applicant was the ‘designer’ of the flooring system, and that it was within the scope of its responsibility and obligation as a designer to specifically address, in its safety report, the hazards associated with lifting and installing hollowcore panels.

Walkington C found that the safety report ought to have included a specific reference to the pre-cast hollowcore panels and the hazard arising from the installation of these panels in the flooring system. She concluded that the safety report provided by the applicant to its client did not satisfy the requirements set out in reg 3.140 of the OSH Regulations.

Walkington C determined that the directions contained in the second section of the Improvement Notice, which dealt with the manner of the expressed time to comply with the notice, were not sufficiently clear and ambiguous. However, she found that this did not result in a conclusion that the Improvement Notice was invalid and ought to be revoked.

Walkington C affirmed the Improvement Notice with a modification to remove the directions and add a direction to include the hazards arising from the selection of the flooring system in the safety report, and a modification to the date for compliance.

The decision can be read here.

The Industrial Appeal Court has upheld an appeal against a decision of the Full Bench of the Commission and found that The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (the Award) remains applicable to workers and employers in the retail pharmacy industry.

Background

When the Award issued in 1977, the inclusion of a number of retail pharmacies as respondents to the Award meant that the retail pharmacy industry was captured within the scope of award coverage.

In 1995, the Commission struck out the name of the last then remaining retail pharmacy industry participant under s 47(2) of the Industrial Relations Act 1979 (WA) (the Act) and replaced the schedule to the Award with a fresh list of scheduled employers. None of the employers in the replaced schedule were engaged in the retail pharmacy industry.

At first instance

The Shop Distributive and Allied Employees’ Association of Western Australia applied to the Commission and sought a declaration under s 46(1)(a) of the IR Act to the effect that the Award applied to workers and employers in the retail pharmacy industry.

Commissioner Emmanuel heard the application and made a declaration that the Award applied to the retail pharmacy industry in WA. She found that, where the scope of an award is to be varied, certain steps are required to occur under s 29A of the Act. No evidence or argument were put that those steps occurred.

Emmanuel C also found that the Commission exercises a ‘special power’ when removing a listed respondent that no longer carries on business in an industry to which the award applies. She found that such an order does not have the effect of removing an industry, thereby reducing the award’s scope.

The Pharmacy Guild of Western Australia and Samuel Gance t/as Chemist Warehouse appealed this decision.

Appeal to the Full Bench

By majority, Chief Commissioner Scott and Senior Commissioner Kenner upheld the appeal and found that the Award had ceased to cover workers and employers in the retail pharmacy industry during 1995.

The majority concluded that the requirements of s 29(A)(2) of the Act were not applicable to the striking out order issued by the Commission in 1995 under s 47(2) of the Act, as they found that the application to remove the named respondents from the Award was made by the Commission acting on its own motion.

The majority also found that the removal of the last-named respondent engaged in the retail pharmacy industry in 1995 had the effect of removing that industry from the scope of the Award at that time.

Appeal to the IAC

Justice Kenneth Martin rejected the conclusion expressed by the majority of the Full Bench that the removal of the last-named respondent of the retail pharmacy industry to the Award ‘had the effect of removing that industry from the scope of the Award from that time’.

Kenneth Martin J found that the Full Bench majority misread s 47(2) of the IR Act beyond its proper context and determined that it was not a stand-alone variation power that enabled the Commission to act of its own motion to impact against the scope of an award.

His Honour determined that s 47 provides the power to strike out a party as a named party to an award but does not change the scope of application of the award. His Honour rejected the Full Bench majority’s approach that a reduction in scope outcome is the necessary and logical legal consequence of the Award’s adoption of a Glover clause.

A Glover clause is a drafting technique that expressed an award’s coverage as being applicable to all workers within an industry or industries that were then the industries of the schedules respondents to the award.    

Kenneth Martin J found that a variation in the scope of an award must first need to be meticulously progressed through onerous publication, notification and service requirements under s 29A(2) of the Act. His Honour found that these requirements were not met in 1995 and, consequently, the Commission never obtained jurisdiction to validly issue an order that could vary the scope of the Award.

Conclusion

The appeal was allowed.

The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 remains applicable to workers employed in any calling or callings as mentioned in the retail pharmacy industry and to employers employing those workers.

The decision can be read here.

Two new appointments to the Commission were announced today by the Minister for Industrial Relations the Hon. Stephen Dawson MLC.

Senior Commissioner Kenner, who has been the Senior Commissioner since 2016, has been appointed as the Chief Commissioner from 5 May 2021.

Ms Rachel Cosentino, a barrister at Francis Burt Chambers, has been appointed as the Senior Commissioner from 8 June 2021.

Ms Cosentino has extensive industrial relations and litigation experience. Prior to joining the Bar, Ms Cosentino headed up the General Law Division at Slater and Gordon Lawyers.

The Commission welcomes the new appointments.

Read the full media release here.

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the respondent, the Director General of the Department of Education, to take improvement action against an employee who had been the subject of a disciplinary process.

Background

The employee is employed as an Administrative Officer at the Department of Education. She was the subject of a disciplinary process under s 81(1)(a) of the Public Sector Management Act 1994 (WA) (PSM Act) which began on 16 April 2019.

On 21 July 2020, the employee received a letter from the Department which confirmed that no breach of discipline finding had been made against her and required her to take improvement action pursuant to s 82A of the PSM Act.

The employee appealed this decision to the Board.

Contentions

The employee argued that the Director General did not have the power to order her to undertake improvement action under s 82A of the Act. Her central argument was that the Board should infer from the letter dated 21 July 2020 that the Director General made a positive finding that she did not commit any breach of discipline.

The employee contended that, having found there was no longer any ‘disciplinary matter’ for the purposes of s 82A of the PSM Act, the Director General did not have the power to then direct her to take improvement action.

The Director General denied that she made any disciplinary findings, but said that the legislative framework allows her to take improvement action when no disciplinary findings have been made.

The Director General said that in any event, she was authorised to take improvement action where appropriate under s 29 of the PSM Act.

Findings

The Board found that the Director General did not make a finding ‘of no disciplinary breaches’. It found that there was the absence of a finding, which was not the same as finding that something did not occur.

The Board found that though the investigation was complete and no findings were made, it did not mean that there was no longer any disciplinary matter to empower the Director General to act under s 82A of the PSM Act. The disciplinary matter was still on foot and it was open to the Director General to decide to move away from the disciplinary process and impose improvement action.

The Board considered that the Director General’s decision to impose improvement action was within power under the PSM Act. It found that the Director General did not err in her interpretation of s 81(1) and 82A(2) of the PSM Act when she decided, after the completion of a disciplinary investigation, to move away from disciplinary action and take improvement action.

The appeal was dismissed.

The decision can be read here.

The Industrial Magistrate has dismissed a claim for payment of two weeks’ wages in lieu of notice on the basis that the claimant had resigned from his employment and that the respondent, his employer, was entitled to withhold the payment.

Allegations

The claimant, a machine operator, claimed that the respondent contravened the Fair Work Act 2009 (Cth) (FW Act) and the Timber Industry Award 2010 (Cth) (Award) by failing to pay him his entitlement of two weeks’ wages in lieu of notice, totalling $1,672, at the end of his employment.

The claimant alleged that the employment relationship ended when he was dismissed by the respondent’s managing director on 1 July 2020.

The respondent maintained that the claimant’s conduct on 30 June 2020 was problematic and that he was verbally abusive and threatening in the workplace. It argued that, when confronted about this behaviour, the claimant resigned from employment and walked off the job before his finishing time.

The respondent also alleged that as the claimant resigned without giving notice, it was entitled, pursuant to cl 14.2 of the Award and s 324(1)(c) of the FW Act, to withhold an amount not exceeding the amount he would have been paid in respect to the period of notice required to serve out his notice.

The claimant argued that even if he did resign, the respondent was precluded from deducting any amounts from his final entitlement and relied on s 326 of the FW Act. He submitted that cl 14.2 of the Award is unlawful, as it permits a deduction ‘directly or indirectly for the benefit’ of the respondent and that such deduction was ‘unreasonable in the circumstances’.

Findings

Industrial Magistrate Hawkins noted that there was a great divergence between the parties as to what occurred and the sequence of events. Her Honour found that she did not consider the claimant to be a reliable witness and that virtually all matters in dispute were in direct conflict with the evidence of the respondent’s witnesses. Her Honour found that she preferred the evidence of the respondent’s witnesses.

Hawkins IM found that, on the evidence, the claimant’s resignation was verbally expressed in clear and unambiguous terms to the respondent on 30 June 2020. Her Honour found that she was satisfied that the claimant, having resigned without giving notice, was not entitled to payment of two weeks’ wages in lieu of notice.

Hawkins IM also found that the respondent had the right to withhold an amount equivalent to two weeks’ wages, as the claimant resigned without giving notice. Her Honour noted that the claimant pointed to no authority where similar provisions to cl 14.2 of the Award have been found unlawful, pursuant to s 326 of the FW Act. Her Honour noted that s 324 of the FW Act clearly allows for permitted deductions under an Award if an employee fails to give the required notice.

Hawkins IM determined that she was not satisfied that when the text, context, and purpose of s 326 of the FW Act is considered, that it applies to cl 14.2 of the Award. Her Honour found that even if she had been so satisfied, she did not consider the deduction was unreasonable in the circumstances.

Her Honour was satisfied that the respondent was permitted, pursuant to cl 14.2 of the Award, to deduct $1,672 from the claimant’s final entitlements.

The claim for payment in lieu of notice was dismissed.

The decision can be read here.