The applicant filed an unfair dismissal application against the respondent, her former employer, claiming unfair dismissal as the Business Development Manager. After an unsuccessful conciliation conference, the issue arose as to whether the respondent qualified as a national system employer under the Fair Work Act 2009 (Cth), which depends on its status as a constitutional corporation. The key question was whether the respondent, despite being a not-for-profit entity, could be classified as a trading corporation, thus impacting the jurisdiction of the Commission over the applicant’s unfair dismissal application.

The respondent, through its director, argued its establishment as a joint venture business under the Browse LNG Precinct Project Agreement and presented financial details, asserting its status as a trading corporation. In contrast, the applicant, relying on Maurice Blackburn Lawyers' review, contested the respondent’s trading status, emphasising the predominance of government grants in its income and minimal trading activities. The key contention revolved around the respondent’s purpose and the nature of its activities.

Commissioner Tsang, applying legal principles considered the respondent’s purpose as outlined in its Constitution and the Browse LNG Precinct Project Agreement. Despite the respondent’s not-for-profit status, Commissioner Tsang found that its primary purpose was the advancement of social or public welfare. Examining the respondent’s activities, Commissioner Tsang scrutinised financial records, contracts, and the nature of revenue sources. Notably, Commissioner Tsang focused on the respondent’s contracts with the Department of Primary Industries and Regional Development, concluding that the significant revenue from these service-based contracts constituted substantial trading activity. Consequently, Commissioner Tsang determined that the respondent is a trading corporation, leading to the dismissal of the applicant’s unfair dismissal application due to the lack of jurisdiction.

The decision can be read here.

The respondent applied for the dismissal of the proceedings in this matter under the Industrial Relations Act 1979 (WA). The respondent argued that the Commission lacked the power to regulate dismissal in the employment of TAFE lecturers due to the operation of specific sections of the IR Act when read with the Public Sector Management Act 1994 (WA).

In the substantive matter, the applicant filed a Form 1B, seeking a conference related to an unfair dismissal of Mr Whitehurst by the respondent. In reply, the respondent stated that the Commission lacked the power to hear the matter, and Mr Whitehurst could refer the dismissal decision to the Commission under the PSM Act.

The core issue was whether s 23(3)(d) of the IR Act, which limits the Commission’s jurisdiction if there is provision for an appeal in the other Act, applies to s 78(2) of the PSM Act. The applicant denied such a provision, emphasising the distinction between ‘appeal’ and ‘referral’ and citing legislative history. The respondent contended that the words ‘however expressed’ in s 23(3)(d) encompass a broader meaning than ‘appeal’ in other IR Act provisions.

After considering the legislative history, definitions, and purpose of the relevant sections, Commissioner Tsang concluded that s 23(3)(d) applied. Thus, the Commission lacked jurisdiction to hear the applicant’s application. The decision rested on the expansive meaning of ‘appeal’ and the intention to leave review matters under the PSM Act within its limits. Consequently, Commissioner Tsang dismissed the application for want of jurisdiction.

The decision can be read here.

The applicant was required to show cause at a hearing as to why her claim should not be dismissed under section 27(1)(a) of the Industrial Relations Act 1979 (WA). This section allows the Commission to dismiss a matter if it deems it trivial, unnecessary, not in the public interest, lacking sufficient interest from the person who referred the matter, or for any other valid reason. Earlier directions listed issues, including the Commission’s jurisdiction to hear her contractual benefit claim and whether the matter should be dismissed for reasons such as estoppel or abuse of process.

The background revealed that the parties had a business relationship that ended, leading to a dispute over commissions and other amounts. Commissioner Yilmaz of the Fair Work Commission previously determined that the parties’ relationship was a business partnership, not an employment relationship. Thus, the applicant’s claim fell outside the FWC’s jurisdiction. Despite a settlement agreement reached at a conciliation conference, the applicant initiated proceedings in the Western Australian Industrial Relations Commission.

During the hearing, the applicant asserted that she understood she could sue the respondent if certain arrangements were not followed and claimed she lacked the financial means to pursue the matter in court. Commissioner Tsang found that the applicant was attempting to re-litigate her employment status, which the FWC had already determined, and that her actions amounted to an abuse of process. Additionally, issue estoppel prevented her from arguing that she was an employee. Commissioner Tsang concluded that the applicant should have pursued the matter in the Magistrates Court, a more appropriate forum, and dismissed her claim under section 27(1)(a) of the Act.

The decision can be read here.

The matter revolved around the entitlement of police officers to the Annual Leave Travel Concession under the Western Australia Police Force Industrial Agreement 2021. The applicant sought various forms of relief, including payment of a Motor Vehicle Allowance, reimbursement of annual leave, a declaration of breach by the employer, and a pecuniary penalty.

The primary issue was whether the police officer’s entitlement to the travel concession accrues on an annual basis or a calendar year basis. The interpretation of clause 30(9) of the Agreement was pivotal in determining their entitlement. The applicant argued that the travel concession should be calculated on a calendar year basis, while the respondent contended that it accrues on an annual basis, tied to the commencement of the employee's service in the remote area.

Industrial Magistrate Coleman, analysing the language of the relevant clause, emphasised that the drafting parties likely focused on practicality and the industrial relations environment, avoiding a literal interpretation if inconsistent with the apparent intention.  Coleman IM found that the applicant’s interpretation was incorrect, and that the entitlement accrued on an annual basis from the commencement of service in the remote area.

The respondent had the discretion to approve the travel allowance in advance, as stipulated in subclause 9(a)(ii).   Coleman IM noted that the applicant did not seek prior approval before taking annual leave in March/April 2022, which was before the accrual date of their final travel allowance entitlement. The rejection of the travel concession by the respondent was justified, and consequently, there was no breach of the Agreement.

In conclusion, Coleman IM dismissed the applicant’s claims, stating that the police officers were not entitled to the travel concession for their trip in March/April 2022 unless they sought and were granted prior approval from the employer. As they failed to establish this claim, there was no breach of the Agreement, and the claims were dismissed.

The decision can be read here.

The Public Service Appeal Board dismissed the appeals of two Communications Technicians, dismissed from the WA Police Force for failing to comply with a COVID-19 vaccination direction.

Both employees accepted that the relevant vaccination direction was lawful and reasonable and their failure to comply with it was a breach of discipline. However, both said that their circumstances were “unique” because of their particular medical histories and that the employer’s failure to give sufficient weight to their medical histories meant that the decision to dismiss them was harsh.

The employees relayed their worries about the possible adverse and serious side effects of the approved COVID-19 vaccinations to the Appeal Board. The Appeal Board stated that there was no doubt the employees were genuinely worried about adverse side effects. However, for those worries to have lessened the seriousness of their conduct, they must show that their beliefs and concerns were objectively reasonable.

The Appeal Board was not persuaded that the employees’ reasons for not complying with the direction were reasonable. In one case, the employee did not seek out medical advice from his own treating medical practitioners about whether he should be vaccinated, or which vaccination was best for him. The other employee was strongly advised by his specialist to get vaccinated. Neither produced any evidence that their medical conditions placed them at higher risk of adverse side effects from the available vaccines.

The Appeal Board concluded that the employees’ reasons for not following the vaccination direction were not unique. Their reasons were simply ideological beliefs that meant they were opposed to being vaccinated with the approved COVID-19 vaccines.

The decision can be read here.