Details 

 Created: 17 June 2020

The Director General of the Department of Education WA applied to the Commission for an order to stay orders pending a Full Bench decision where special circumstances justifying the stay were found to have been made out.

The applicant sought a stay of orders 1 and 2 in the order made on 29 May 2020 by the Commission. Those orders were that:

(1) the union’s member, a teacher, be returned to employment with the Department of Education WA within 21 days of the date of this order and, as soon as is practicable, be returned to work at a school other than Busselton Senior High School; and

(2) the service of the union’s member with the respondent be deemed continuous for all relevant purposes.

Chief Commissioner Scott noted that the orders sought to be stayed would have returned the union’s member to employment with the applicant within a matter of days. The Commission also noted that the grounds of appeal relate to issues of the union’s member’s fitness to work and issues of trust and confidence in the employment relationship. Scott CC found that, in those circumstances, to not stay the orders would render the appeal nugatory.

Scott CC also found, in considering the prospects of success of the appeal, that the grounds of appeal raise some arguable issues.

Scott CC found that orders 1 and 2 of the Commission’s order of 29 May 2020 ought to be stayed and has issued an order to that effect.

The decision can be read here.

Details 

 Created: 15 June 2020

The Western Australian Industrial Relations Commission has issued a General Order under s 50 of the Industrial Relations Act 1979 (WA) to adjust the part of each location allowance representing prices, effective from 1 July 2020.

In accordance with the Commission’s usual practice, the Commission of its own motion has undertaken a review of the prices components. State private sector awards generally provide for a location allowance. Each allowance has three components, namely climate, isolation and prices.

The s 50 parties under the Act were notified of the review and informed that the Commission intended to increase the part of each location allowance representing prices by 2.32% to reflect the increase in the Consumer Price Index for Perth (excluding housing) for the year to March 2020.

All parties agreed to the proposed adjustments to location allowances.

Accordingly, the Commission in Court Session has now issued a General Order to reflect these changes.

The Reasons for Decision can be read here.

The General Order can be read here.

Details 

 Created: 11 June 2020

The Industrial Magistrate has ordered that the respondent, a financial services provider, pay the claimant a pecuniary penalty of $11,000 in respect of several contraventions of the Fair Work Act 2009 (Cth) (FWA).

Substantive decision

On 15 May 2020, the Industrial Magistrate found that the respondent contravened s 44 of the FWA in failing to pay the claimant untaken paid annual leave upon termination of employment, and in doing so, failed to comply with the National Employment Standards and contravened a civil remedy provision.

The respondent was ordered to pay $33,244 in accrued untaken annual leave.

Further, the respondent was found to have contravened s 535(1) and s 536(1) of the FWA in failing to keep and maintain certain prescribed records of employment and failing to provide pay slips during the course of the claimant’s employment, and contravened a civil remedy provision.

Supplementary Reasons for Decision

The claimant made an application for a pecuniary penalty pursuant to s 546(1) of the FWA in relation to the respondent’s failure to pay untaken annual leave, keep and maintain employment records, and provide payslips.

The claimant alleged that the respondent’s failure to keep and maintain the employment records and provide payslips went to the heart of the failure to regulate employment as contemplated by the National Employment Standards.

The claimant also contended that the respondent’s failure to provide pay slips extended beyond the individual and was a matter of public policy and public interest and supports a finding that it was a ‘serious contravention’.

The respondent argued that the contraventions were not deliberate but arose out of a lack of understanding and appreciation of certain obligations under the FWA.

Scaddan IM found that there was no evidence that the respondent either exploited the claimant or profited from its exploitation of the claimant. Scaddan IM also considered the small size of the respondent’s business, the fact that the respondent no longer employs employees and that the respondent did not attempt to hide any contraventions.

Scaddan IM found that the respondent’s contravention of s 535(1) and s 536(1) of the FWA was not a serious contravention and found that the following pecuniary penalties were proportional to the gravity of the respondent’s contravening conduct:

• $5,000 for the failure to pay untaken paid annual leave;
• $4,000 for failing to provide pay slips; and
• $2,000 for failing to keep and maintain employment records.

The substantive decision can be read here. 

The supplementary decision can be read here.

Details 

Created: 04 June 2020

The Industrial Magistrate has upheld a claim for unpaid wages alleged to be owed under the Children’s Services Award 2010 (Cth) (Award) by an employee of a childcare centre.

The claimant alleged that the respondent contravened the Fair Work Act 2009 (Cth) (FWA) and the Award in failing to pay her ordinary wages from 22 October 2018 to 8 November 2018 contrary to the terms of the Award.

The respondent argued that it was entitled to withhold the wages because the claimant failed to give one week’s notice prior to the termination of her employment in accordance with the FWA and cl 11 of the Award.

The claimant denied that she failed to give notice of termination to the respondent, but said that upon indicating to the respondent that she intended to leave her employment with two weeks’ notice, the respondent terminated her employment that day on 8 November 2018.

The Industrial Magistrate found, having regard to all the evidence, that on 8 November 2018, the claimant did not terminate her employment with the respondent.

Instead, the Industrial Magistrate found that the respondent terminated the claimant’s employment on 8 November 2018 after the claimant finished her shift, and after the claimant had informed the respondent on 7 November 2018 that she intended to resign by giving two weeks’ notice with the resignation to take effect from 9 November 2018.

Scaddan IM, having determined that the respondent failed to pay the claimant for work undertaken between 22 October 2018 to the end of the day of termination, ordered that the respondent pay the claimant her wages for this period.

The decision can be read here.

Details  Created: 03 June 2020

The Commission has upheld a claim for denied contractual benefit by an employee of a cabinet making business for his final week’s pay prior to the termination of his employment.

The applicant gave the respondent notice of termination of his employment. The applicant claimed that he performed work during his final week of employment on behalf of the business and should be paid for it before his resignation.

The respondent maintained that the applicant still had some of the respondent’s property in his possession, including a computer hard drive which contains business records.

It was also noted that the applicant was trying to finalise a kitchen job for a customer before his resignation, who had withheld payment because of concerns of the quality of the job performed.

Senior Commissioner Kenner found that it was clear during the course of the hearing that the reason the respondent had refused to pay the applicant for his final week of work with business, was the respondent’s opinion that the applicant retained in his possession the computer hard drive.

Kenner SC found, that it was not open to the respondent to refuse to pay the applicant’s wage for his last week of employment because there was a dispute with the customer in relation to work performed, and because the applicant had allegedly failed to return some computer equipment.

Kenner SC determined that the question of rectification of works and recovery of property of the business was a separate question to the applicant’s entitlement to be paid under his contract of employment.

The Commissioner upheld the application and ordered payment of the applicant’s final week’s pay.

The decision can be read here.