Details 

 Created: 20 February 2020

Notice is given of applications on the motion of the Western Australian Industrial Relations Commission to review the following awards with a view to varying those awards in accordance with s 40B of the Industrial Relations Act 1979.  The awards concerned are:

Section 40B(1) provides that the Commission may vary awards of its own motion for a number of purposes being:

• to ensure that the award does not contain wages that are less than the minimum award wage as ordered by the Commission under section 50A;
• to ensure that the award does not contain conditions of employment that are less favourable than those provided by the Minimum Conditions of Employment Act 1993;
• to ensure that the award does not contain provisions that discriminate against an employee on any ground on which discrimination in work is unlawful under the Equal Opportunity Act 1984;
• to ensure that the award does not contain provisions that are obsolete or need updating;
• to ensure that the award is consistent with the facilitation of the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises.

A conciliation and scheduling conference will be convened by the Commission:

On:      Friday, 27 March 2020

At:       10:30 am

At:       Western Australian Industrial Relations Commission

           Level 18, 111 St Georges Terrace, Perth WA 6000

Any person wishing to appear at that conference or obtain further information should contact the Associate to Commissioner Walkington : 

Commissioner Walkington Chambers

9420 4414

SUSAN BASTIAN

REGISTRAR

19 February 2020

Details 

 Created: 11 February 2020

The Western Australian Industrial Appeal Court (IAC) has upheld an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission (WAIRC) where it held that ‘continuous service’ served by an employee in the ‘public sector’ does not include employment in the service of another state of Australia when calculating severance payment.

Proceedings in the WAIRC

The applicant, Mr Browne, accepted an offer of voluntary severance from the respondent under reg 13(2) of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (the Regulations). However, he contended that the method of calculation of service for the purposes of his redundancy payments ought to have been the same as the calculation for long service leave under the Long Service Leave General Order of the Industrial Commission (the General Order).  That is, where an employee has a period of service in another State or the Commonwealth, that service is deemed to be continuous service for the purposes of s 13(2) of the Regulations. Mr Browne argued that his service in the Tasmanian public service should be included as service with his service in the WA public service when calculating his entitlement to severance payment.

At first instance, Senior Commissioner Kenner found that for the purposes of reg 13(2) of the Regulations, ‘continuous service’ includes service in the employment of the Commonwealth or of another State. The Commissioner ordered that Mr Browne’s service in the Tasmanian public service be included when calculating his entitlement to severance payment.

Appeal to the Full Bench

By majority, the Full Bench upheld an appeal by the respondent and quashed the decision of the Commission. It determined that, in order to be entitled to severance payment, any continuous service in the public service must occur in Western Australia.

Commissioner Matthews, with whom Commissioner Emmanuel agreed, found that the term ‘public sector’ has the same meaning in the Regulations as it does in the Public Sector Management Act 1994 (PSM Act) where it means entities within the WA government. Commissioner Matthews held that the term ‘continuous service’ served by the employee in the ‘public sector’ requires service in the ‘public sector’ as defined by the PSM Act, but once that requirement is met, the General Order determines what is and what is not continuous service. As the respondent’s service in the Tasmanian Public Sector was continuous but was not served within meaning of the ‘public sector’, this service could not be included when calculating his entitlement to severance payment.

Acting President Smith dissented and found that the appeal should be dismissed. Her Honour found that the term ‘public sector’ should be defined as it is in the General Order and not the PSM Act.

Appeal to the IAC

Mr Browne then appealed to the Industrial Appeal Court.

Justices Buss and Murphy found that since the meaning of ‘continuous service’ is not defined in the General Order, it is to be discerned from an understanding of the provisions of the General Order and their operation.

Their Honours determined that the meaning of ‘continuous service’ requires consideration of context and purpose of the provision. They found that it is intended to pick up the actual period of any service in the public sector as defined under the General Order, and that the words ‘public sector’ are to be understood in light of that definition.

Their Honours found that the majority of the Full Bench erred in their interpretation of reg 13(2).

Justice Le Miere (concurring) found that since ‘continuous service’ is not a defined term in the General Order, the court must ascertain its meaning from the General Order having regard to its context, and then apply that meaning in reg 13(2) having regard to its context and purpose. He also found that the General Order enlarges the natural and ordinary meaning of ‘continuous service’.

Le Miere J determined that the enlarged meaning of continuous service by an employee under the General Order includes periods during which an employee is not employed by the Public Authority, including a period of employment in the service of another State. He found that ‘continuous service’ in reg 13(2) must be given in the same enlarged meaning in its context, that is the context of service by an employee in the Public Sector.

Consequently, Le Miere J found that ‘continuous service’ served by an employee in the ‘public sector’ includes employment in the service of another State of Australia.  

The IAC allowed the appeal and set aside the decision of the Full Bench. The IAC ordered that the declaration and order made by Senior Commissioner Kenner be reinstated.

The decision can be read here. 

Details 

 Created: 30 January 2020

The Commission has referred a claim for unfair dismissal to a substantive hearing to decide whether there was a dismissal and, if there was, whether that dismissal was unfair.

The applicant alleges that, while she accepts that she resigned as part of the settlement of a claim under the Worker’s Compensation and Injury Management Act 1981, she was ‘forced into resigning’ in such a way as to making the ending of her employment a ‘constructive dismissal’. The respondent argues that the resignation was ‘voluntary’ as part of the settlement of her worker’s compensation claim.

Commissioner Matthews noted the presence of some unusual circumstances about which the applicant had given evidence on.  Commissioner Matthews discussed the possibility that the respondent, by its conduct, orchestrated a situation where the applicant had no real choice but to resign.

The application was also filed out of time. The respondent did not wish to be heard at the preliminary hearing on whether the Commission should act under s 29(3) Industrial Relations Act 1979, which allows the Commission to accept a referral by an employee that is out of time if the Commission considers that it would be unfair not to do so.

Commissioner Matthews will determine the issues of jurisdiction and the s 29(3) Industrial Relations Act question at the substantive hearing.

The decision can be read here.  

Details 

 Created: 30 January 2020

The Industrial Magistrate’s Court has dismissed a claim by a meat delivery driver for annual leave and superannuation entitlements under the Fair Work Act 2009 (Cth) (FW Act) but upheld his claim for long service leave entitlements under the Long Service Leave Act 1958 (WA) (LSL Act).

The respondent denied that the applicant was an employee under the FW Act and the LSL Act, but rather said that he was an independent contractor. 

Industrial Magistrate Flynn determined that the totality of the relationship between the applicant and respondent included the legal relationship between the parties. Flynn IM found that the services of the applicant were supplied to the respondent by a partnership, of which the claimant and his wife were partners. Flynn IM found that the role of the partnership and the fact that the applicant supplied his own purpose-built vehicle for his work indicated that the applicant was not serving the respondent’s business, but his own. He was not an ‘employee’ as defined under the FW Act.

Annual leave and superannuation entitlements

Flynn IM found that the applicant’s claim for annual leave and superannuation entitlements be dismissed.

Long service leave entitlements

In relation to the applicant’s claim for long service leave entitlements under the LSL Act, Flynn IM considered s 4(1)(d) of the LSL Act and noted that this definition of ‘employee’ contains a specific reference to vehicle ownership.

Flynn IM found that the meaning of ‘in all other respects an employee’ in s 4(1)(d) is determined through the application of the same ‘totality of the relationship’ test applied in the applicant’s claim under the FW Act, without regard to the fact that the applicant owned the vehicle through the partnership.

Flynn IM re-applied the ‘totality of the relationship’ test (excluding the fact that he partly owned the vehicle through the partnership) and found that the applicant was an ‘employee’ of the respondent as defined by s 4(1)(d).

Flynn IM upheld the applicant’s claim for long service leave entitlements.

The decision can be read here.

Details 

Created: 30 January 2020

The Commission has dismissed a claim of unfair dismissal after finding that the applicant was not dismissed but was given a real choice to resign and did so.

The applicant alleged that the conduct of the respondent left her no choice but to resign, giving rise to constructive dismissal. The respondent argued that the applicant was not dismissed and that she voluntarily resigned as part of the settlement of a claim under the Workers’ Compensation and Injury Management Act 1981.

The applicant gave evidence that she accepted an offer of $70,000 to compromise her workers’ compensation claim, with a condition of settlement being she resign from her employment. She gave evidence that she refused to sign the draft letter of resignation from the respondent, and instead signed a version she amended which she felt better served her interests.

Commissioner Matthews found that the conduct of the respondent, as a matter of common-sense causation, did not lead to the applicant’s resignation. Instead, the applicant resigned to receive the offer of $70,000 in circumstances where her financial situation had become very bad. The applicant knew she had a choice as she refused to sign the draft letter until it was amended in what she considered to be her own best interests.

Commissioner Matthews found that there was no dismissal in the circumstances and consequentially found that the Commission does not have jurisdiction to hear and determine the application.

The application was dismissed by order.

The decision can be read here.