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Claim for unpaid wages dismissed as claimant was not an employee

The Industrial Magistrate has dismissed a claim for unpaid wages alleged to be owed under an oral contract of employment as the claimant was found not to be an ‘employee’ of the respondent for the purposes of the Fair Work Act 2009 (Cth) (FWA).

The claimant alleged he was employed by the respondent pursuant to an oral agreement to assist in providing business knowledge for the respondent’s new business and act as a salesperson at the store for an extended period.

The respondent denied the claim and argued that the claimant was never employed by the respondent, but was given a total of $5,500 by the business owner as a goodwill gesture for introducing a customer and providing advice on how to improve the business.

The Industrial Magistrate found, on examination of the evidence provided, there was no employment agreement, written or oral, between the claimant and respondent. Scaddan IM found, therefore, that the claimant was not an ‘employee’ pursuant to the FWA and the Industrial Magistrates Court does not have jurisdiction to make an order for payment of alleged unpaid wages.

Scaddan IM noted that the claimant’s evidence objectively showed that there was no intention to create legal relations between the parties involving the performance of work.

The claim was dismissed.

The decision can be read here.

Claim for award wages, annual leave and long service leave partly upheld

The Industrial Magistrate has upheld, in part, a claim for unpaid entitlements including award wages, annual leave and accrued long service leave by an employee of a financial services provider.

The applicant alleged that the respondent contravened the Fair Work Act 2009 (Cth) and the Clerks – Private Sector Award 2010 (Cth) (the Award) by failing to pay him award wages under the provisions of the Award, annual leave not taken during the course of employment, and accrued long service leave.

In relation to the alleged unpaid award wages, Scaddan IM noted that cl 4.1 of the Award provided that:

[t]his award covers employers in the private sector throughout Australia with respect to their employees engaged wholly or principally in clerical work…

On examination of the relevant material and evidence provided, the Industrial Magistrate found that, while the respondent was an employer in the private sector, the applicant was not engaged in wholly, or even principally, ‘clerical work’. The Industrial Magistrate found that the applicant’s duties and tasks extended to providing financial advice and reports to the company’s clients.

Therefore, the Industrial Magistrate concluded that the Award did not cover the respondent’s employment of the applicant and the applicant was not entitled to any award wages.

However, Scaddan IM upheld the applicant’s claim for untaken accrued annual leave on the basis that the respondent could not and did not produce any employment records, and there was no evidence to suggest that the applicant’s allegation concerning the failure to pay untaken annual leave was not bona fide.

In relation to the applicant’s claim for long service leave payment, the respondent argued that by failing to attend an alternative office to undertake work, the applicant refused to carry out a lawful and reasonable direction by his employer. As such, the applicant had engaged in such ‘serious misconduct’ that it was not required to pay the him his entitlements.

Scaddan IM found that, having regard to all the evidence, the applicant’s employment was not terminated for ‘serious misconduct’, but due to either a shortage of work or because the respondent was restructuring its business. Scaddan IM determined that even if the applicant did not attend work at an alternative office, this, of itself, would not amount to such ‘serious misconduct’ to deny his long service leave entitlements.

Scaddan IM ordered that the respondent pay the applicant accrued unpaid leave amounting to $33,244 and long service leave totalling $6,881. Scaddan IM dismissed the applicant’s claim for award wages.


The decision can be read here

COVID-19 General Order allows further flexibility to manage private sector employment arrangements

The Western Australian Industrial Relations Commission will issue a General Order under s 50 Industrial Relations Act 1979 (WA) to provide private sector employers with further flexibility to manage employment arrangements in a manner that supports the JobKeeper Scheme established under the Coronavirus Economic Response Package Omnibus (Measures No.2) Act 2020 (Cth).

The General Order will provide for the following specific temporary measures:

  1. A requirement that where a JobKeeper payment is payable, the employer is to provide eligible employees the value of the JobKeeper payment or the amount owed for work performed;
  2. Ability for an employer to stand down employees (either fully or partially) because they cannot be usefully employed arising from the COVID-19 pandemic or government initiatives to slow the transmission of COVID-19;
  3. Ability for an employer to alter the duties of work of an employee in order to continue employment of one or more employees of the employer;
  4. Ability for an employer to alter the location of work in order to continue the employment of one or more employees of the employer; and
  5. Options for an employer and employee to agree to work being performed on different days and times, provided that the employee does not unreasonably refuse an employer’s request.  

The General Order also sets out the ways employees, organisations and employers can refer disputes about the General Order to the Commission for conciliation and arbitration.  

These measures initially operated until 28 September 2020 and have now been extended to 28 March 2021.

The General Order will apply to all private sector employers and employees in the State system, whether covered by an award or not. State system employers generally include sole traders, partnerships, some trusts, some local government agencies and some non-for-profit organisations.

The Commission issued the Reasons for Decision on Thursday, 14 May 2020.

The General Order was issued on Friday, 15 May 2020.

The reasons for Decision can be read here.

The General Order can be read here.

Commission issued declaration that police bargaining has ended

Details  Created: 12 May 2020

The Public Service Arbitrator has issued a declaration under s 42H(1) of the Industrial Relations Act 1979 (WA) (Act) that bargaining has ended for an industrial agreement to replace the Western Australian Police Industrial Agreement 2017.  

The applicant, the WA Police Union of Workers, made an application to the Commission for assistance in bargaining for the making of a new industrial agreement.

Since the commencement of the bargaining process, the Commission has convened eight compulsory conferences and the parties have met for the purposes of negotiation at least fifteen times. All five offers made by the respondent for a new industrial agreement were rejected by the applicant. Despite the endeavours by the parties and the Commission, the parties were unable to reach an agreement.

The Commission is empowered under s 42H(1) of the Act to declare bargaining between the parties has ended, as long as the Commission is satisfied as to a number of matters.

As the Arbitrator, Senior Commissioner Kenner, found that the applicant had bargained in good faith, bargaining had failed and there was no reasonable prospect of reaching an agreement, the Commission issued a declaration under s 42H(1) of the Act that bargaining had ended between the negotiating parties.

The decision can be read here.

Ex tempore decision was issued at the conclusion of proceedings on 29 April 2020. 

Casual employee entitled to long service leave after satisfying LSL Act requirements

Details  Created: 06 May 2020

The Industrial Magistrate has ordered that an aged care company pay a worker long service leave entitlements under s 8 Long Service Leave Act 1958 (WA) (LSL Act) after finding that the worker was a casual employee continuously employed for more than 10 years with the same employer.

Section 8 LSL Act provides for an employee entitlement to long service leave of 8 2/3 weeks on ordinary pay in respect of continuous employment of 10 years with one and the same employer.

The Claimant, an industrial inspector, contended that the worker fulfilled the requirements under s 8 LSL Act.

The company questioned whether the worker was an employee of the company or an independent contractor and whether the worker had been continuously employed for more than 10 years as required by the LSL Act.

Flynn IM found, after examining the worker’s contract of employment, relationship with the company and her work schedule, that the worker was a casual employee of the company and not an independent contractor. Flynn IM found that she was not an employee of any client of the company where she worked on a varying placements.

Flynn IM also found, after examining and applying s 6 LSL Act to the facts, that the worker was in continuous employment with the company for more than ten years.

The respondent had argued that, by reason of the nature of casual employment, any period of ‘continuous employment’ by the worker was terminated on a ‘ground other than slackness of trade’ at the end of each client placement. However, Flynn IM found that so long as the worker was available for employment, as required by her contract, she was in continuous employment. He also found that all her non-working periods, including holidays, were each an ‘authorised absence’ under s 6 LSL Act, and that these periods did not disrupt the continuous nature of her employment.

Flynn IM then determined the ‘ordinary pay’ of the worker in light of the definition of that phrase under s 4 LSL Act and then found that she worked, on average, 28.4 hours a week.

The decision can be read here.

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