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Interim order made to prevent union determining Summons against member
In one of two related applications under s 66 of the Industrial Relations Act 1979, the applicant, a member of the respondent union, sought interim orders against the respondent to prevent the respondent’s Council from considering and determining a Summons to Show Cause issued to the applicant. The Summons was issued under union rules pertaining to the suspension, removal from office, and expulsion of branch officers.
Chief Commissioner Kenner identified several issues suggesting a prima facie case. The Summons failed to explain how the alleged conduct related to the applicant's office as Vice President, as required by respondent’s rules. The rule requires that the Summons state the allegations and the evidence on which they are based. However, the Summons issued to the applicant did not adequately set out how the allegations related to her position as Vice President, nor did it specify the gross misbehaviour in relation to her office. Additionally, there were concerns about bias, as key individuals involved in the allegations were also part of the decision-making process.
The balance of convenience was found to heavily favour the applicant. The potential consequences for her, including removal from office and expulsion from the union, posed a risk of irrecoverable harm. The respondent did not establish any significant harm that would result from granting the interim orders. The extensive delay in issuing the Summons and the timing of events also raised concerns about possible manipulation.
The Chief Commissioner decided that an interim order should be made in favour of the applicant. The decision was based on the principles of equity and good conscience, considering the serious potential consequences for the applicant and the issues surrounding the issuance of the Summons.
The decision can be read here.
Association not participating in industrial relations matters
The applicant organisation has applied to the Commission seeking the establishment of an Interim Board of the respondent association to operate its affairs pending an application to the Registrar for deregistration. A member of the respondent association, the applicant made the application due to changes in the respondent’s rules, not reflected in its registered Rules.
The applicant contended that the respondent, an employer association for community service organisations ostensibly intended to participate in industrial relations matters, had not done so and was instead directing its focus towards funding and other issues. The application also sought the ability for members to attend General Meetings and vote remotely, and a waiver of the two-thirds majority requirement for voting to dissolve the organisation, allowing a simple majority instead.
Chief Commissioner Kenner considered that the orders sought should be made.
The decision can be read here.
Commission varies Shop and Warehouse (Wholesale and Retail Establishments) State Award
The Commission, of its own motion, initiated proceedings to vary the Shop and Warehouse (Wholesale and Retail Establishments) State Award, which was identified as an award suitable for a review of its scope.
The Commission gave notice of the proposed variations to the Award to several parties, none of whom advised the Commission of any opposition to the proposed variations. The Minister for Industrial Relations and UnionsWA each expressed their support for the variations.
The variations seek to better encapsulate the types of work the Award is intended to cover, to ensure that the Award extends to the wholesale industry generally, and to clarify that the Award does not apply to employees covered by another State award.
The decision can be read here.
Unapproved pay banking arrangement grounds for summary dismissal
The applicant was Director of Corporate and Legal Services at the respondent local government. After being summarily dismissed from the position following an investigation into a pay banking arrangement into which he had entered, the applicant lodged claims with the Commission alleging that he was unfairly dismissed and denied contractual benefits.
The applicant argued that his intention for the pay banking arrangement was to save for retirement, noting that while the arrangement was undocumented, his reduced pay appeared on payslips, and full pay was recorded in the respondent’s records. He claimed that the investigation was inadequate and that there were no reasonable grounds for believing he had committed misconduct. He sought reinstatement, compensation for unfair dismissal, and full payment of denied benefits.
The respondent contended that the arrangement was questionable and exposed them to compliance and governance risks, including breaches of the employment contract, the Fair Work Act 2009 and the Code of Conduct. They asserted that they had reasonable grounds for believing misconduct had occurred and that the investigation was properly conducted.
Commissioner Tsang considered whether the respondent’s legal right to dismiss the applicant was exercised harshly or oppressively, concluding that the respondent had reasonable grounds for an honest and genuine belief that the applicant's conduct warranted summary dismissal. Consequently, the Commissioner dismissed the applications.
The decision can be read here.
Commission varies Theatrical Employees (Perth Theatre Trust) Award
The Commission, of its own motion, initiated proceedings to vary the Theatrical Employees (Perth Theatre Trust) Award No 9 of 1983. The Award had not been varied substantively since 1998, and many of its provisions were outdated or obsolete. The Commission provided notice of its intention to vary the Award to parties to the award and relevant organisations, including UnionsWA and the Arts and Culture Trust (the Trust).
The Arts and Culture Trust raised four matters in relation to the proposed variations, including concerns regarding the financial burden of increased overtime rates for casual employees and the Trust’s preference that the travel and laundry allowances be raised on this occasion instead of being perpetually linked to the federal Modern Award. The Trust also suggested a clause providing for an allowance for licensed electricians be removed, due to electricians no longer being employed by the Trust. UnionsWA agreed with the Trust’s proposal to remove the clause pertaining to licensed electricians and expressed a preference for the allowances in the Award to be automatically indexed, but otherwise broadly agreed with the position of the Trust.
The Commission considered the matters raised and ordered that the Award be varied. Variations included the removal of obsolete clauses and the modernising of provisions to align with statutory requirements and facilitate the efficient performance of work, while balancing fairness to employees.
The decision can be read here.