Commission opening hours during Christmas and New Year period
The Western Australian Industrial Relations Commission will be closed from 4.30 pm on Friday, 23 December 2022 until 8.30 am on Tuesday, 3 January 2023.
During this period, documents can still be lodged for filing via the digital portal, or by email to Registry@wairc.wa.gov.au. Please note if you are filing or lodging a document which is to be done so within a prescribed time or on a prescribed date and the Registry is closed on the last day on which it may be filed, it is taken to have been filed within time if it is filed or lodged on the next day that our Registry is open for business.
If you have an issue relating to an urgent industrial matter requiring immediate attention, please contact the Registrar directly on 0404 044 338 during usual business hours (8:30am to 4:30pm).
Notice of Application for Alteration of Registered Rules
The Registrar has given notice of an application by The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch to the Commission in Court Session to alter its registered rules pursuant to section 62 of the Industrial Relations Act 1979 (WA). The application includes a proposal to change the union’s name and eligibility for membership.
The matter will be heard by the Commission in Court Session at 2:30pm on Friday, 10 February 2023.
Any person or organisation with sufficient interest may give notice of objection to the application within 21 days of publication of the notice. A copy of the proposed rule alterations may be inspected in the Registry on Level 17, 111 St Georges Terrace.
The full notice can be read here.
Chief Commissioner orders discovery of information relating to union election
The Chief Commissioner has ordered the discovery of documents relating to a union’s officeholder elections, after a member alleged that there were irregularities in the conduct of the election.
The applicant is a member of the Australian Nursing Federation, Industrial Union of Workers Perth. The applicant, who was an unsuccessful candidate for the position of Secretary, complained there were election conduct irregularities. An application was brought against the Union as the first respondent, the Returning Officer, Western Australian Electoral Commission as the second respondent, and the Registrar, Western Australian Industrial Relations Commission as the third respondent.
The applicant contended that there was insufficient time for members to return their ballots by the election closing date, especially those living in regional or remote areas. The applicant contended that there were discrepancies between the roll of voters for the election and the first respondent’s membership records. The applicant contended that this materially affected the outcome by preventing or hindering the full and free recording of votes and the correct ascertainment or declaration of the results of the election. The applicant contended the requested documents were too broad.
The first respondent objected to the discovery of the roll of electors and the register of its members, as this would prejudice the privacy and security of confidential information in the records. The first respondent contended that no orders should be made for discovery and inspection, until further particulars were furnished by the applicant in relation to various aspects of her application. The first respondent opposed the contentions of the applicant in relation to the conduct of the election.
The third respondent contended that her status should be changed to that of an intervener, and that the Registrar’s role under the Act was to facilitate, rather than to conduct, the election, and it would not be appropriate for her to be a protagonist in the proceedings. The third respondent contended that the correspondence requested could bring into play other proceedings involving the first and third respondent.
The Chief Commissioner found that the centrality of the allegations involving the roll of electors and the member register, along with member names and addresses, meant that it was axiomatic that the discovery and inspection of the records was just, as a matter or equity, good conscience, and the substantial merits of the case.
The Chief Commissioner found that the applicant could access the records and that access should not be limited to the applicant’s solicitors and counsel. The Chief Commissioner found that any potential insecurity of the documents being provided in electronic form were not a basis to refuse production of the documents.
The Chief Commissioner issued orders for discovery of documents, and ordered that the third respondent’s status be amended to that of an intervenor.
The decision can be read here.
Industrial Magistrate dismisses school teacher’s claim, finding no error in their classification or pay
The Industrial Magistrate has dismissed a teacher’s claim for alleged breaches of his Agreement and contraventions of the Fair Work Act 2009, finding that he was classified and paid correctly in his employment.
The claimant was a teacher employed by the first respondent school, at which the second respondent was the Principal. The claimant alleged breaches of his Agreement and contraventions of the Fair Work Act 2009, and sought unpaid salary, superannuation, interest, and penalties.
The claimant contended that he was paid incorrectly and that on commencement his salary should have been assessed at Step 11 and not Step 7. The claimant contended he had 6.85 years of relevant experience meant he should be classified as a ‘Four Years Trained Teacher’ or ‘Five Years Trained Teacher’ under the Agreement, and that the first respondent was required to progress him to the next step on a certain date, then every 12 months.. The claimant contended that the Agreement should be read with the Award, the national teaching standards and registration framework set by the Australian Institute for Teaching and School Leadership (AITSL Framework).
The respondents contended that the AITSL Framework and Award did not affect the Agreement’s interpretation, and that both respondents complied with starting salary obligations under the Agreement. The respondents contended that the claimant was above the Agreement, and that the claimant’s salary was determined fairly and reasonably, based upon information available at the time. The respondents contended that they increased the claimant’s wage when required, pursuant to the Agreement, and that cl 3.4 expressly excluded the application of any other industrial instrument including the Award that might otherwise apply.
The Industrial Magistrate found that the claimant had not completed the relevant education and training requirements to be classified as a four or five years trained teacher. The Industrial Magistrate found that this was supported by the National Office of Overseas Skills Recognition’s assessment of the claimant’s overseas qualifications. The Industrial Magistrate found that the Teacher Registration Board of Western Australia had not determined the claimant had the qualifications required. The Industrial Magistrate found that the claimant was a ‘Not otherwise classified’ teacher, meaning the claimant was to commence on Step 1, progressing a step each year of full-time work.
The Industrial Magistrate found that while the second respondent was incorrect in his calculation of the claimant’s experience by 0.81 years, that no salary adjustment was required as this would not have qualified the claimant to receive any more than a Step 3 salary. The Industrial Magistrate found that the claimant was paid more than required under the Agreement; that no liability arose with respect to underpayment; and that it was unnecessary to make an assessment regarding the second respondent’s liability. The Industrial Magistrate dismissed the claim.
The decision can be read here.
Work Health and Safety Tribunal affirms WorkSafe decision not to grant a demolition license
The Work Health and Safety Tribunal has affirmed a decision not to grant a demolition license after determining that it could not be satisfied that the applicant could undertake the work in a safe and proper manner.
The applicant undertook demolition work. The respondent, the WorkSafe Western Australia Commissioner, decided not to reissue a class 2 demolition license to the applicant due to insufficient class 2 demolition work experience. The applicant applied to the Tribunal to quash the respondent’s decision not to reissue.
The applicant contended that the Tribunal ought to grant a license as he was able to undertake class 2 work in a safe and proper manner as shown by his work and WorkSafe audits, and that the Tribunal should consider non class 2 experience. The applicant contended that the Tribunal should not exclude class 2 jobs that contravened the Occupational Safety and Health Regulations 1996 (WA) (‘OSH Regulations’) as the adverse consequences of denying a license was disproportionate to the breach.
The respondent contended that the requirement to be able to undertake demolition work in a ‘safe and proper manner’ should be understood to mean lawfully and in accordance with the OSH Regulations. The respondent contended that the applicant recurrently carried out unlawful work, and that breaches of the Occupational Safety and Health Act 1984 (WA) (‘OSH Act’) and the OSH Regulations were relevant.
The Tribunal noted that that it must have regard to s 26(1) of the Industrial Relations Act 1979 (WA) (‘IR Act), and when reviewing an OSH Act matter referred to it, must act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form. The Tribunal noted it was not bound by the rules of evidence, may inform itself as it thinks just, and must consider the interests of the persons immediately concerned whether directly affected or not and, where appropriate, the interests of the community as a whole. The Tribunal noted further that it must apply the legal provisions setting out the conditions a person must satisfy to be licensed to undertake a task or activity regulated for reasons of safety.
The Tribunal found that the applicant was notified, and ought to have taken note, that undertaking class 2 work following his license expiry breached the OSH Regulations, and that the applicant agreed that asbestos removal constituted demolition work or at least was a part of it. The Tribunal found that the applicant had contravened his license by engaging others who were not trained in safe demolition by a Registered Training Organisation. The Tribunal found it could not assess non class 2 work experience as the evidence given was general and not supported by specific jobs, referees, or experts.
The Tribunal found it was not satisfied that the applicant could undertake class 2 work in a safe and proper manner, and that the applicant’s individual interest in maintaining a license must be subordinate to the public interest in ensuring public safety. The Tribunal affirmed WorkSafe’s decision.
The decision can be read here.