Details  Created: 12 May 2020

The Public Service Arbitrator has issued a declaration under s 42H(1) of the Industrial Relations Act 1979 (WA) (Act) that bargaining has ended for an industrial agreement to replace the Western Australian Police Industrial Agreement 2017.  

The applicant, the WA Police Union of Workers, made an application to the Commission for assistance in bargaining for the making of a new industrial agreement.

Since the commencement of the bargaining process, the Commission has convened eight compulsory conferences and the parties have met for the purposes of negotiation at least fifteen times. All five offers made by the respondent for a new industrial agreement were rejected by the applicant. Despite the endeavours by the parties and the Commission, the parties were unable to reach an agreement.

The Commission is empowered under s 42H(1) of the Act to declare bargaining between the parties has ended, as long as the Commission is satisfied as to a number of matters.

As the Arbitrator, Senior Commissioner Kenner, found that the applicant had bargained in good faith, bargaining had failed and there was no reasonable prospect of reaching an agreement, the Commission issued a declaration under s 42H(1) of the Act that bargaining had ended between the negotiating parties.

The decision can be read here.

Ex tempore decision was issued at the conclusion of proceedings on 29 April 2020. 

Details  Created: 06 May 2020

The Industrial Magistrate has ordered that an aged care company pay a worker long service leave entitlements under s 8 Long Service Leave Act 1958 (WA) (LSL Act) after finding that the worker was a casual employee continuously employed for more than 10 years with the same employer.

Section 8 LSL Act provides for an employee entitlement to long service leave of 8 2/3 weeks on ordinary pay in respect of continuous employment of 10 years with one and the same employer.

The Claimant, an industrial inspector, contended that the worker fulfilled the requirements under s 8 LSL Act.

The company questioned whether the worker was an employee of the company or an independent contractor and whether the worker had been continuously employed for more than 10 years as required by the LSL Act.

Flynn IM found, after examining the worker’s contract of employment, relationship with the company and her work schedule, that the worker was a casual employee of the company and not an independent contractor. Flynn IM found that she was not an employee of any client of the company where she worked on a varying placements.

Flynn IM also found, after examining and applying s 6 LSL Act to the facts, that the worker was in continuous employment with the company for more than ten years.

The respondent had argued that, by reason of the nature of casual employment, any period of ‘continuous employment’ by the worker was terminated on a ‘ground other than slackness of trade’ at the end of each client placement. However, Flynn IM found that so long as the worker was available for employment, as required by her contract, she was in continuous employment. He also found that all her non-working periods, including holidays, were each an ‘authorised absence’ under s 6 LSL Act, and that these periods did not disrupt the continuous nature of her employment.

Flynn IM then determined the ‘ordinary pay’ of the worker in light of the definition of that phrase under s 4 LSL Act and then found that she worked, on average, 28.4 hours a week.

The decision can be read here.

Details 

Created: 05 May 2020

The Public Service Appeal Board (Board) has dismissed an appeal against the decision of the respondent to impose a penalty of a permanent reduction in classification following admissions by the appellant of misconduct over a six-year period.

The appellant occupied a Level 8 position with the respondent and formed part of the senior management team for several years.

In March 2019, the respondent made four allegations of suspected breaches of discipline under s 80 of the Public Sector Management Act 1994 (WA) (PSM Act). The allegations were in connection to the misuse of the respondent’s computer system, unauthorised release of official information and inappropriate behaviour.

The appellant admitted to the misconduct and the respondent imposed a penalty of permanent reduction in work classification from Level 8.3 to Level 5.4.

The appellant appealed on the basis that the penalty was harsh and unfair given the mitigating circumstances that he advanced in response to the allegations, including his unblemished record and personal issues. He sought that the penalty be reduced to a reprimand and a reduction in classification to Level 8.1.

The respondent argued that the penalty was appropriate and a higher-level position was not suitable for the appellant given his breach of trust and the respondent’s lack of confidence in the appellant as a result of his misconduct.  

The Board found, in considering the appellant’s engagement in sustained misconduct, profound abuse of the respondent’s email system, numerous breaches of the respondent’s code of conduct and his senior position, that the respondent’s decision to permanently reduce the appellant’s work classification was entirely appropriate. The Board found that the personal matters referred to by the appellant in his mitigation submissions could not be relied upon in mitigation of sustained misconduct over many years.

Respondent’s submission as to scope of Appeal Board’s powers under s 80I(1) of Act

The Board also dealt with a submission made by the respondent that the Board’s power to “adjust” the respondent’s decision under s 80I of the Industrial Relations Act 1979 (WA) (Act) only extended to reversing or quashing the decision. The respondent submitted that it was not open to the Board to “change” the decision in such a way as to replace it with a different decision as sought by the appellant, to impose a reprimand and a Level 8.1 classification instead.

The Board considered the powers of the Board under s 80I of the Act to “adjust” a decision of an employer to dismiss a manager for misconduct and found that its meaning was to be considered in the context of an appeal under s 80I(b) of the Act.

The Board then referred to s 80A of the PSM Act, and noted that one category of disciplinary action is a “reduction in the level of classification of the employee” and that this was the relevant ‘decision’ in this case. Thus, the Board found the meaning of “adjust” in this case is to be considered in the context of the relevant disciplinary decision to reduce the appellant’s level of classification.

The Board found that its power to “adjust” the respondent’s reduction in classification decision involved the power to “reform” it in some way. This is plainly not limited to reversing it.

The Board determined that such decisions involve “reforming” or changing a reduction in classification decision, which is the relevant decision to be adjusted under s 80I(b) of the Act. This does not involve the making of a new decision by the Board.  

The decision can be read here.

Details 

Created: 17 April 2020

The Commission has issued an order that the applicant’s legal representative in another jurisdiction produce documents that are not subject to legal professional privilege in compliance with a summons.

At a preliminary hearing in relation to jurisdiction, the applicant claimed that she was “forced into resigning” in such a way as to make the ending of her employment a ‘constructive dismissal’. The respondent argued that the resignation was ‘voluntary’ and was part of the settlement of her workers’ compensation claim. The hearing did not resolve the matter of whether the applicant had been ‘dismissed’.

After the preliminary hearing, the respondent sought, by way of summons directed to the applicant’s legal representative for the worker’s compensation matter, four sets of documents. This included any file notes from the conciliation conference that led to the settlement of the applicant’s workers’ compensation claim, as well as documents containing any advice given by the applicant’s legal representative to the applicant.

The respondent argued that the applicant, in the furtherance of her case, deployed each of the documents sought and, accordingly, should be taken to have waived legal professional privilege. The respondent claimed that production of the documents would show that the circumstances were not as the applicant alleges. The respondent argued it would be unfair for the applicant to assert privilege where that is the case. 

The recipient of the summons resisted production of the documents on the basis that each and all are the subject of legal professional privilege.

The Commission found that legal professional privilege had not been relevantly waived by the applicant stating she did not receive “advice per se” whether or not to accept the settlement offer at the workers’ compensation conciliation conference. The Commission determined that the applicant’s state of mind insofar as it was created or influenced by the respondent was the relevant factor to determine the issue of ‘constructive dismissal’, not how her state of mind was affected by any advice she did, or did not, receive from her advisors. The Commission found that while the applicant having access to competent legal counsel will be relevant, the advice that was given will not be particularly relevant.

The Commission ordered that the recipient of the summons provide any notes taken by the applicant’s representatives at the workers’ compensation conciliation conference, where those notes are of events at which representatives of the respondent were present, to the Western Australian Industrial Relations Commission.

The decision can be read here.