Details  Created: 17 September 2020

The Industrial Magistrate has upheld a claim by a manager of a post office for untaken paid annual leave, but dismissed his claim for unpaid wages for his last week of employment on the basis that the Industrial Magistrate’s Court does not have jurisdiction to make such an order under the Fair Work Act 2009 (Cth) where the obligation to pay is contained in the contract of employment.

The claimant was employed as a permanent part-time manager of the respondent’s post office until his employment ceased on 29 October 2019. The claimant alleged that the respondent contravened the FW Act in failing to pay him:

1. Ordinary wages in full for work performed from 21 to 29 October 2019; and
2. Untaken paid annual leave following the termination of his employment.

Unpaid wages

The respondent agreed that the claimant was not paid for the hours worked between 21 to 29 October 2019. It argued, however, that it was entitled to withhold payment for the time worked because the claimant suddenly left his employment without notice.

Industrial Magistrate Scaddan rejected the respondent’s argument. Her Honour found that as the contract was silent on the parties’ obligations with respect to termination, the circumstances surrounding the claimant leaving his employment were irrelevant to the claim.  

However, her Honour found that although the respondent was not entitled to withhold wages for the period worked from 21 to 29 October 2019, absent the contract, there was no other industrial instrument or provision under the FW Act upon which the claimant could rely to establish a legal obligation for the respondent to pay the unpaid wages.

Her Honour concluded that the IMC does not have jurisdiction to make an order under the FW Act in respect of the claim for unpaid wages under the contract. Her Honour noted that the claimant may make a claim for denied contractual benefit or breach of common law in other forums.

Untaken paid annual leave

The respondent also agreed that the claimant did not take annual leave but argued that the claimant was overpaid during his employment.

Her Honour found that there was no way the respondent’s assertion of an ‘overpayment’ could be verified as there was no employment record of what monies were paid and for what purpose.

Her Honour found that, in any event, the respondent’s claim that the alleged ‘overpayment’ could set off any amount owed for untaken paid annual leave was flawed. Scaddan IM found that there was no correlation between the two payments to enable a claim for set-off and the character of the alleged overpayments were completely different to that of untaken paid annual leave.

Her Honour upheld the claimant’s claim for untaken paid annual leave and ordered that it be paid pursuant to s 90(2) of the FW Act.

The decision can be read here.

Details  Created: 15 September 2020

On 15 September 2020, the Commission issued a General Order under s 50 Industrial Relations Act 1979 (WA) that has extended the operation of the JobKeeper General Order until 28 March 2021.

The Commission in Court Session undertook a review of the General Order and heard from the Minister, the Chamber of Commerce and Industry, and UnionsWA. It was agreed that, in the current circumstances of the COVID-19 Pandemic and its effects on businesses and employment, and the continuing uncertainty it has generated, the operation of the General Order should continue until 28 March 2021 to be consistent with the operation of the Federal JobKeeper Scheme.

The order can be read here.

All COVID-19 related General Orders can be found here.

Details  Created: 11 September 2020

The Commission has dismissed a claim for denied contractual benefits, which sought the payment of royalties related to a piece of acting the applicant did for the respondent. The Commission found that there was no employment relationship between the parties.

The applicant said he did a television commercial for the respondent in 2014, which was played on television from 2014 to 2019. The applicant received royalties in the years up to 2017 but said he had not been paid royalties for the years 2018 and 2019.

The applicant asserted that he was an employee of the respondent and that his entitlement to royalties may be enforced as an incident of his employment contract. While he was not able to produce a written employment contract, the applicant said the Commission could infer that he was employed based on the evidence.

Commissioner Matthews found that there was no document or letter passed between the parties of a contractual nature that suggested employment, nor was there any evidence that the applicant was controlled by the respondent in the relevant way.

The claim was dismissed.

The decision can be read here.

Details  Created: 10 September 2020

The Industrial Magistrate has dismissed a claim for untaken paid annual leave under the GO INSHORE Port Hedland Agreement 2016 (Cth) (2016 Agreement) by a Master on an even time roster of 28 days on and 28 days off on the basis that annual leave was found to be taken during the off-duty period.

This dispute had been determined, in part, by the Industrial Magistrates Court dismissing the claimant’s claim as it related to his employment period covered by two previous industrial agreements, Go Inshore Port Hedland Agreement 2009 (Cth) and Go Inshore Port Hedland Enterprise Agreement 2013 (Cth) (2009 and 2013 Agreements). This decision can be read here.

The remainder of the dispute concerned the construction and application of cl 24 of the 2016 Agreement for the period of employment from May 2016 to August 2018.

The claimant claimed that the respondent failed to pay him untaken paid annual leave upon termination of his employment contrary to the Fair Work Act 2009 (Cth). He argued that he was entitled to four weeks annual leave for each year of service under cl 24 of the 2016 Agreement, and the respondent failed to provide him this payment by incorrectly describing part of the 28 days off (on the even time roster) as being paid annual leave.

The respondent denied the claim and said that on its proper construction, cl 24 of the 2016 Agreement operates to deem full-time employees to have taken accrued annual leave during off duty periods.

Industrial Magistrate Scaddan noted that the annual leave clause of the 2016 Agreement had been re-drafted and amended from its previous iterations. However, Her Honour found that the respondent intended that the existing annual leave arrangements under the 2009 and 2013 Agreements would continue in the same manner under the 2016 Agreement.

As the conclusion in the summary decision in respect of the 2009 and 2013 Agreements was that the taking of annual leave was intended to be incorporated into the off-duty period, Scaddan IM found her preferred construction of cl 24 in the 2016 Agreement was also that accrued paid annual leave was incorporated into the claimant’s off duty time on the even time roster. In reaching this conclusion, Her Honour also had regard to the industry context and purpose of the Agreement, as well as the natural and ordinary meaning of the clause.

The claim was dismissed.

The decision can be read here.

Details  Created: 08 September 2020

The Commission has dismissed an application to review a decision of the Construction Industry Long Service Leave Payments Board that decided that the applicant was ineligible to accrue benefits to long service leave under the Construction Industry Paid Long Service Leave Act 1985 (WA) (the Act), because he was not employed in the “construction industry”.

The applicant worked as a mechanical fitter performing maintenance work and repairs to track maintenance machines used by Rio Tinto to maintain its railway.

The applicant argued that his work was “maintenance of or repairs to railways” under the definition of “construction industry” set out in s 3(1) of the Act.

The respondent disputed this contention and submitted that such work performed by the applicant did not involve, of itself, maintaining or repairing railways. Instead, the respondent argued that the work engaged in by the applicant was the maintaining and repairing of equipment used in maintaining railways.

Senior Commissioner Kenner noted that the meaning of “construction industry” was considered by the Full Bench in the recent decision of Programmed Industrial Maintenance v Construction Industry Long Service Leave Payment Board [2020] WAIRC 00758. Kenner SC pointed out that work performed “on site” means work performed away from an employer’s own premises but does not necessitate that work be performed on a “construction site” or a “building site”.

Kenner SC found, on the evidence, that the applicant’s work was to a substantial degree, work involving “on site” work.

However, Kenner SC determined that the applicant was not engaged on work involving “the maintenance or of repairs to …railways…”. Instead, Kenner SC found that the applicant was engaged in work better described as maintaining and repairing machines that are used to repair or maintain railways. Therefore, the applicant’s work was not work in the “construction industry” for the purposes of the Act.

The application to review was dismissed.

The decision can be read here.