The Commission upheld the Minister's decision to demote and transfer the applicant, finding his conduct during the night shift fell short of the expected standard for a Senior Prison Officer, and his lack of contrition and insight rendered him unsuitable for the role.

The applicant, a Senior Officer at Wandoo Rehabilitation Prison, appealed against the Minister's decision to demote and transfer him, based on allegations of breaching the Department of Justice Code of Conduct during a night shift on 30 January 2021. The Minister contended that the applicant failed to remain alert and vigilant, pointing to instances of not monitoring phone calls and appearing as though he was sleeping.

In his defence, the applicant argued that his actions, including briefly removing his shoes and closing his eyes in a dimly lit staff room, were minor violations and that he was sufficiently alert during the shift. He emphasised his 30 years of service without prior misconduct, and questioned the severity of the penalty, suggesting a lack of insight on the Minister's part.

Commissioner Emmanuel found the penalty of demotion and transfer to be proportionate and fair, noting that the applicant failed to meet the expected standard for a Senior Prison Officer during night shift. Despite being an isolated incident, the Commission deemed the applicant's conduct sufficiently serious to warrant the imposed penalty, expressing concern over his lack of contrition and insight. The decision emphasised that even with a lengthy work history, the applicant demonstrated his unsuitability for the Senior Officer role based on his own evidence and submissions.

The decision can be read here.

The Commission ruled in the applicant's favour, ordering the reinstatement of the applicant to her position, and compensation, citing inconsistent treatment based on timing as arbitrary and unfair in comparison to another non-compliant employee.

The applicant, a Drug Detection Officer at Bunbury Regional Prison, was summarily dismissed for refusing to comply with the vaccination directive issued during the COVID-19 pandemic. Despite conceding her failure to comply, she contested her dismissal on the grounds of perceived unlawfulness of the directive, her genuinely held but mistaken belief, and alleged unfair treatment compared to other non-compliant employees, particularly citing the case of Ms Beere, another employee.

Senior Commissioner Cosentino found in favour of the applicant, ordering the employer to pay the applicant for lost remuneration and to reinstate her to the position she held as of 26 May 2022. The Commission compared the applicant's case to that of Ms Beere, noting similar circumstances, understanding of the vaccination directive, breach, charges, and preliminary findings proposing dismissal. The key distinction leading to inconsistent treatment was the delay in recommencing the disciplinary process for Ms Beere, allowing her to return to work after the vaccination directive was lifted. The Commission deemed this timing-based inconsistency arbitrary and unfair, emphasising the need for fair and consistent treatment in disciplinary matters, irrespective of the ultimate outcomes for individual cases.

The decision can be read here.

The Commission dismissed the application, stating that with the revocation of reprimands, there was no longer a decision for him to refer to the Commission, and he lacked standing to pursue an application under the relevant section of the Act.

The respondent accused the applicant of misconduct as a relief teacher at Butler Primary School, leading to disciplinary proceedings. After initially proposing a reprimand, the respondent later revoked the reprimands, deciding to take no further action on the allegations due to concerns about the potential stress on student witnesses and resource implications. The respondent then applied for the dismissal of the proceedings, raising a jurisdictional objection regarding whether the matter qualified as an industrial matter.

The applicant, acknowledging the revocation of reprimands, withdrew his application to refer the matter to the Commission but argued that the Commission's jurisdiction still applied for several reasons, including potential violation of the Industrial Relations Act 1979 (WA) and being harshly, oppressively, or unfairly treated. The respondent contended that, with the revocation of reprimands, there was no longer a decision to take disciplinary action, and the endorsement on the applicant's employment record was not disciplinary but an administrative part of the employment process.

Commissioner Tsang dismissed the application, citing that when the respondent revoked the reprimands, there was no decision left for the applicant to refer to the Commission. It clarified that s 23(3)(e)(ii) of the Act was not relevant to the question of jurisdiction and that the applicant lacked standing to pursue an application under s 29(1)(c) of the Act, as he had not been dismissed. The Commission emphasised that neither estoppel nor the parties could grant jurisdiction in the absence of grounds, and there was no evidence of a promise made by the respondent that the applicant relied upon to his detriment.

The decision can be read here.

The Full Bench concluded that registering the Agreement, including Clause 5, which asserted the Agreement's superiority over inconsistent award terms, aligns with legislative intent; while Clause 6, allowing Individual Flexibility Arrangements, would be inconsistent with the Industrial Relations Act, rendering it invalid if registered. Additionally, the Full Bench found that the Commission's power to require variation of an agreement is limited to section 41(3).

Background:

The City of Cockburn Enterprise Agreement 2019 – 2022, initially registered under the Fair Work Act 2009 (Cth), became a new State instrument on 1 January 2023, on the transfer of local government from the federal to the State industrial relations system.  Section 80BB(2) of the Industrial Relations Act 1979 (WA) treats the Agreement as registered under section 41 of the Act. The City of Cockburn negotiated the City of Cockburn Enterprise Agreement 2022 (Agreement) to replace the existing instrument, seeking registration under section 41 of the Act. The Agreement, under consideration for registration, faced questions over two clauses.

Clause 5 of the Agreement aimed to establish a comprehensive framework, excluding certain awards and intending to govern all employee terms and conditions. The specific issue concerned clause 5.2, which asserted the Agreement's superiority over inconsistent award terms. The question is whether the registration of the Agreement, including clause 5, would be inconsistent with the Act.

Clause 6 introduced Individual Flexibility Arrangements, allowing employers and employees to mutually vary specific terms of the Agreement. The central issue was whether the registration of the Agreement, including clause 6, would be inconsistent with the Act.

With the Chief Commissioner's consent, the following questions of law regarding these clauses were referred to the Full Bench under section 27(1)(u) of the Act.

Question 1: Clause 5 – Operation of the Agreement

The City of Cockburn argued that clause 5 aligned with the Act's goal of promoting collective bargaining, emphasising its comprehensive coverage of employee terms and conditions without relying on other industrial instruments. The Full Bench concluded that registering the Agreement, including Clause 5, would not be contrary to the Act.  Section 41(9) underscores the equal standing of awards and industrial agreements, with no hierarchical relationship. The legislative intent supports parties' autonomy in crafting enterprise-level agreements.

Question 2: Clause 6 – Individual Flexibility Arrangements (IFA)

The City of Cockburn argued that clause 6 was consistent with the Act. Others, including the Minister, contended that the IFA clause undermined the statutory scheme by allowing individual agreements without adequate protection, potentially circumventing fairness standards. The Full Bench determined that the IFA clause, as proposed, was inconsistent with the Act's scheme, purporting to enable individuals not party to the industrial agreement to vary its terms, contrary to the legislative scheme. Registering the Agreement with clause 6 would be inconsistent with the Act.

Question 3: Validity of Clauses if Registered

WASU, LGRCEU, and CFMEUW asserted that clause 6 would be invalid if registered, with the Minister contending it could also be void under section 114 of the Act. The Full Bench concluded that if clause 6 was included for registration, it would be invalid and have no effect.

Question 4: Commission's Power to Require Variation

The City of Cockburn, WASU, LGRCEU, and CFMEUW presented arguments on the Commission's power to require variation to an agreement under the Act. The Minister argued against the Commission's authority beyond section 41(3). The Full Bench determined that the Commission cannot require variation beyond the requirements of section 41(3), aligning with the legislative history, which supports the Commission’s minimal role in registration of industrial agreements. The Full Bench noted that provisions like those in clause 6 could result in contraventions of the Act, exposing employers to enforcement action.

The decision can be read here.

The Full Bench permitted the Civil Service Association's amendment to the grounds of appeal, enabling the CSA to proceed with clarified challenges to the Industrial Magistrate's findings on the breach of clause 36A(4) of the Award.

The Full Bench considered the appeal by the Civil Service Association of Western Australia Incorporated (CSA) against a decision of the Industrial Magistrate's Court, which dismissed the CSA's claim that the Director General Department of Justice breached clauses 36A(4), (5), and (6) of the Public Service Award 1992. The appellant sought an amendment to its grounds of appeal.  The respondent opposed the application on the grounds of lack of specificity and a lack of prospects of success on the appeal.

The CSA's original claim before the Industrial Magistrate arose from the Director General's failure to communicate directly with the CSA regarding disciplinary matters involving two employees represented by the CSA. The Industrial Magistrate dismissed the CSA's allegations, focusing on the failure to communicate directly as outlined in clause 36A(4). The proposed amendments to the grounds of appeal aimed to challenge the Industrial Magistrate's construction of clause 36A and sought clarification on the CSA's right to be informed and involved in significant matters.

The Full Bench, in considering the application to amend, emphasised the discretionary power to grant leave and outlined factors such as the timing of the notice, the reason for seeking the amendment, the clarity of the grounds, and potential prejudice to the respondent. The CSA explained that the amendments aimed to narrow and clarify the grounds, addressing deficiencies in the original formulation. The Full Bench accepted the explanation and granted the amendment, noting that the issues raised were of general importance regarding members' representational rights. The Director General's concerns about potential prejudice were considered but not deemed sufficient to outweigh the importance of clarifying the issues in the appeal.

The decision can be read here.