The Commission found that it lacked jurisdiction to hear the applicant’s unfair dismissal claim because the employer was an incorporated body and a trading corporation, based on an overall assessment.

The applicant, a former Retail Manager, was dismissed based on allegations of misconduct and contended that her termination was harsh, oppressive, and unfair. While the respondent argued that her actions constituted a clear breach of duties and responsibilities not in line with the organisation's policies and values.

Additionally, the respondent asserted its status as a national system employer under the Fair Work Act 2009, contending that the Commission lacked jurisdiction to hear the claim. The applicant explained that she initially applied to Fair Work Commission but was redirected to the Commission.

The applicant claimed that the retail and distribution centre sales, which she argued were not trading because the items were donated, were a significant part of the organisation's activities. However, she failed to provide evidence to support this assertion.

Commission Walkington determined that the respondent, as an incorporated body registered under the Association Incorporation Act 2015 (WA), became a corporation in accordance with that Act. Furthermore, the Commission found that the respondent qualified as a trading corporation based on an overall assessment of its operations, including retail and distribution centre sales. Consequently, due to its status as a trading corporation, the Commission lacked jurisdiction to hear the matter and dismissed the application.

The decision can be read here.

The Commission upheld the applicant's dismissal, deeming a mask mandate lawful, reasonable, and a valid reason for termination.

The applicant, an ICT Coordinator, was dismissed for refusing to comply with a mask mandate issued under COVID-19 public health orders. The respondent contended that his dismissal was not unfair, harsh, or oppressive due to his refusal to follow a lawful and reasonable direction.

The applicant sought compensation, an apology, a reference, and accountability for senior management staff, while the respondent argued that the mask mandate was lawful and reasonable as a COVID-19 protective measure.

Commission Walkington dismissed the claim, determining that the mask mandate was lawful and reasonable, serving as a protective measure during the pandemic, and the applicant's refusal to follow the directive without providing an exemption constituted a valid reason for his dismissal. Consequently, the Commission found that the respondent's termination of the applicant's employment was not unfair, harsh, or oppressive, and it was within their right to enforce the mask mandate.

The decision can be read here.

NOTICE is given that an application has been made to the Commission in Court Session by the Western Australian Municipal, Administrative, Clerical and Services Union of Employees for orders pursuant to section 72A(2) of the Industrial Relations Act 1979 (WA) regarding the right of an employee organisation to represent, to the exclusion of another employee organisation, the industrial interests of all outside employees employed in specified local government enterprises.

This matter will be listed for hearing before the Commission in Court Session on a date to be fixed, which is not to be before the expiration of 30 days from the day on which this notice is first published. 

This application may be inspected by appointment at Level 17, 111 St Georges Terrace, Perth by any interested person without charge.

The full Notice, which includes the list of all local government enterprises proposed to be covered by the orders sought, is available here.

Under s40B of the Industrial Relations Act, the Commission can review an award’s provisions if they are “obsolete or in need of updating.”  The Commission initiated proceedings under this section to review clauses in 2 local government awards, headed “Enterprise Flexibility” and “Facilitative Provisions.” The Commission considered whether the clauses were invalid, and so should be removed.

The parties to the proceedings agreed that the Enterprise Flexibility clauses of the awards were invalid. Those clauses purported to permit an agreement to be made with employees at the enterprise level to vary the awards’ provisions, without a mechanism for either the union to be party to such an agreement, or the Commission to register it. Accordingly, the agreement contemplated by the clause was outside the scheme of the Industrial Relations Act. Under the IRA, awards can only be varied by application to the Commission to which a union is party.

Turning to the facilitative provisions in the award, Senior Commissioner Cosentino observed that facilitative provisions are features in many awards, and have been since the 1980s. The purpose of facilitative provisions is not to enable avoidance of award obligations, but rather to allow for a departure from a default or standard method of satisfying an award obligation. Accordingly, a true facilitative provision was not contrary to the Act’s scheme, as it did not involve permitting agreement to vary a provision in the award having the effect of altering award obligations.

Having found that the concept of facilitative provisions in a general sense was not inconsistent with the scheme of the IR Act, the Senior Commissioner went on to consider whether particular provisions of the awards were true facilitative provisions or whether they did more than a facilitative provision, to have the effect of varying award obligations. The Senior Commission found that some of the clauses of the awards did go beyond the limits of a permissible facilitative provision. The Senior Commissioner therefore varied the awards, to remove both the enterprise flexibility clauses and the impermissible facilitative provisions.

In the course of the hearing, the unions argued that the facilitative provisions were obsolete and should be removed because they were rarely if ever used. However, the Senior Commissioner was not persuaded that this was a proper basis to remove the clauses under s40B.

Decision APPL 26/2023 can be read here and decision APPL 27/2023 can be read here.

The appellant’s dismissal was upheld because the Board determined that the vaccination order was legal, reasonable, and necessary for her role.

The appellant, a Senior Community Engagement Officer (SCEO) in the Department of Justice, was dismissed for failing to comply with a vaccination order under Chief Health Officer (CHO) Directions, which were considered necessary for her role involving travel to remote communities, schools, and hospitals.

The appellant disputed the legality of the Employer Direction, arguing that it did not apply to her role, which she believed was Perth-based, and that the duties mentioned in the direction were unclear. The respondent defended the legality and reasonableness of the Employer Direction, stating that it aligned with the SCEO role and that compliance with CHO Directions was essential for fulfilling her responsibilities.

The Board ultimately dismissed the application, finding that the Employer Direction was legal, reasonable, and within the scope of the appellant’s role, which occasionally required travel to remote communities, schools, and hospitals. Her failure to comply with the vaccination order constituted a breach of discipline, and her dismissal was deemed fair and not harsh, oppressive, or unjust in light of the role's travel requirements and the lack of evidence indicating unfair treatment compared to other government employees.

The decision can be read here.