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State Minimum Wage set at $819.90 per week

The Commission in Court Session has handed down its decision in the 2022 State Wage Case.

The Commission has increased the State Minimum Wage by $40.90 per week, which brings the State Minimum Wage to $819.90 per week from 1 July 2022.  The Commission also increased award rates up to the C10 classification rate by $40.90 per week, and increased rates of pay for award classifications at the C10 classification and above by 4.65%.

The Commission’s reasons for decision and minutes of proposed order were handed down at 3:30pm, Thursday 23 June 2022

The Commission’s statement in relation to its decision can be read here. 

A full copy of the Commission’s Reasons for Decision can be read here.

Commission finds no jurisdiction to hear appeal by probationary prison officer discharged under different statutory scheme

The Commission has found it had no jurisdiction to hear an appeal by a prison officer against removal action, finding that the officer was instead discharged under a separate statutory scheme.

Background

The appellant was engaged as a probationary prison officer and posted to the Hakea Prison.  During the appellant’s nine-month probationary period, the appellant was discharged from her position by the operation of reg 5(4) Prisons Regulations 1982 (Regulations), due to an improper and unprofessional association with a prisoner.

The appellant previously commenced an unfair dismissal claim in the Commission, however discontinued that application following conciliation. The appellant then brought a claim under Division 3 of Part X of the Prisons Act 1981 (WA), appealing against the decision to remove her as a prison officer.

Contentions

The respondent raised a preliminary issue of jurisdiction. The respondent submitted that there were several ways under the Prisons Act and Regulations that a prison officer’s engagement may be ended. The respondent claimed that the appellant was not subject to removal under Division 3 of Part X of the Prisons Act, as she was discharged under reg 5(4) of the Regulations, which enables the Chief Executive Officer to discharge a probationary prison officer during or at the end of their probation.

The appellant contended that sworn prison officers who are subject to discharge, are only to be discharged under the procedures in ss 101 to 103 of the Prisons Act. The appellant contended that there was no exclusion from the appeal provisions in s 106 for a probationary prison officer, and that a probationary officer must be afforded procedural fairness under ss 101 to 103

Findings

The Commission confirmed that a probationary prison officer who is sworn in under s 13(2) of the Prisons Act is a prison officer for the purposes of the Prisons Act and Regulations.  Further that Division 3 of Part X did not exclude a probationary prison officer from the disciplinary and removal provisions set out under that legislation. The Commission considered, however, that there were multiple ways that a prison officer may be removed from their engagement, and Division 3 of Part X did not apply to the exclusion of all other legislative schemes.

The Commission noted that while a prison officer’s right to appeal a removal decision or action is conferred by s 106 of the Prisons Act, that such no such removal decision or removal action had occurred in this case.  Rather, the Commission found that the appellant was discharged from her probationary position under reg 5(4) Prisons Regulations 1982 (Regulations), due to an improper and unprofessional association with a prisoner.

The Commission found that there was no jurisdiction to hear and determine the appeal. The appeal was dismissed. 

The decision can be read here.

Commission appoints interim delegate board to Union after historical s 71 certificate unable to be located

The Chief Commissioner has issued orders under s 66 of the Industrial Relations Act 1979 (WA) appointing an interim delegate board of The Coal Miners' Industrial Union of Workers of Western Australia (respondent).

In proceedings before the Full Bench of the Commission in December 1992, declarations under s 71 of the  Act were made. An amendment was made to the respondent’s Rules in February 1994, to facilitate the issuance of a s 71 certificate. 

The intended effect of the s 71 certificate was that all persons elected to positions on the WA Branch board of management of the CFMMEU, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth), would hold the corresponding office in the respondent. As a result, no separate elections have been held for office holders on the respondent’s board of management for many years. 

The applicant gave evidence that it was likely the respondent did not notify the Registrar of the matters set out in s 71(5)(b) of the Act to obtain a s 71 certificate, and that no s 71 certificate was ever issued. Accordingly, persons elected to offices in the WA Branch, were not validly elected to the corresponding offices of the respondent. Further, the respondent was unable to validly constitute its Delegate Board. Even if there had been a s 71 certificate issued, changes to the WA Branch Rules in subsequent years, would have meant the s 71 certificate could not validly operate. 

The Chief Commissioner noted that without an effective and functioning Delegate Board, the respondent could not hold regular meetings, appoint returning officers and conduct elections for office holders under its rules. The Chief Commissioner ordered that an interim delegate board be established, so that the affairs of the respondent could be regularised, and that the respondent could represent the members’ interests. 

The decision can be read here.

Public Service Appeal Board confines scope of evidence to be adduced in matter

The Public Service Appeal Board (Board) has made directions confining the scope of evidence to be lead in a matter on foot, considering the nature of evidence that should be considered by the Board.

Background

The appellant brought an appeal under s 78 of the Public Sector Management Act 1994 (WA)  and s 80I(1)(d) of the Industrial Relations Act 1979 (WA) (Act), against the decision to terminate her employment.

Broadly, the appellant contends that the dismissal was harsh, oppressive, and unfair because she was given no opportunity to address the decision maker on penalty; the alleged findings of misconduct against her were factually wrong; and if the procedural requirements for taking leave were not met by her, then this failing was condoned by her employer over a long period of time.

Pursuant to programming orders made by the Board, ahead of the Appeal, the appellant filed witness outlines for four witnesses. The respondent applied for orders upholding objections to various parts of the evidence to be led by the appellant, as foreshadowed by the witness outlines.

Contentions

The parties accepted that the evidence must be relevant to the issues in the proceedings. The appellant contended that the evidence sought be adduced is relevant. The respondent submitted that the evidence was not capable of affecting the assessment of the probability of the existence of facts or other issues on the appeal, and as such, is not relevant.

Findings

The Board noted that under ss 80L and 26(1)(b) of the Act, the Board was not bound by the strict rules of evidence. The Board noted, however, that not all evidence should be tendered without limitations, and that the Board should only act on material that is logically probative, but also relevant to the proceedings.

The Board reiterated an appeal of this type involved a review of the respondent’s decision de novo, and that the Board is not confined to considering whether the respondent made the right decision at that time, but rather has a broader scope to consider the appeal based on the evidence.

The Board noted that this hearing would be a ‘re‑trial of the misconduct allegations during which the appellant will have a fulsome opportunity to be heard’, meaning that any procedural issues in the initial disciplinary process would not be relevant.

The Board, noting that no decision had been made on the admissibility of any evidence, made directions that clarified the scope of evidence that may be adduced in the appeal on foot. The application was upheld in part.

The decision can be read here.

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