The applicant applied for an enterprise order under s 42I of the Industrial Relations Act 1979 (WA). The application was made because the respondent declined to bargain for an industrial agreement with the Trust, which was establishing a new security services business in Western Australia called Applied Security Force.

The applicant sought the enterprise order to gain flexibilities unavailable under the Security Officers’ Award. Specifically, it aimed to “flatten out” pay rates, reduce administrative burdens, and enhance competitiveness in tendering. The applicant proposed higher base rates in exchange for reduced overtime and penalty rates. However, the respondent opposed the application.

The key issue was whether the Trust qualified as an ‘employer’ when it gave notice to initiate bargaining. The definition of ‘employer’ in the Act was central to this dispute. The applicant argued that having written employment contracts and employing Mr Kourtesis satisfied the definition, while the respondent contended that active engagement of employees in substantive work was essential.

Senior Commissioner Cosentino ultimately decided not to issue an enterprise order. The decision rested on the finding that the Trust was not an ‘employer’ at the relevant time. The evidence did not establish that the Trust had employed Mr Kourtesis, and the employment contracts lacked clarity, creating uncertainty and incompleteness.

Furthermore, Senior Commissioner Cosentino assessed the Trust’s interests and needs for the enterprise order. The Trust’s justifications related to flexibility, confidence in forecasting labour costs, and competition were found to be inadequately supported. There was no evidence that the proposed order would improve productivity or efficiency. Senior Commissioner Cosentino also considered the interests of employees, finding that the proposed order did not guarantee better take-home pay, lacked transparency, and did not provide fair compensation for unsociable hours.

In summary, Senior Commissioner Cosentino dismissed the application for an enterprise order, emphasising the applicant’s failure to meet the statutory criteria and insufficient evidence supporting its claims.

The decision can be read here.

The applicant sought a declaration under s 46 of the Industrial Relations Act 1979 (WA) regarding the interpretation of specific clauses in two agreements: Clause 13.5 of the Education Assistants’ (Government) General Agreement 2023 and Clause 52.4 of the Government Services (Miscellaneous) General Agreement 2023. These clauses outlined casual long service leave entitlements, stipulating 13 weeks' paid leave after 10 years of continuous service, with an additional 13 weeks for each subsequent period of continuous service.

The applicant contended that ‘continuous service’ should be interpreted based on its common-sense, plain English meaning. The respondent argued that it referred only to qualifying service since the registration of the industrial agreement contained the casual Long Service Leave clause.

Senior Commissioner Cosentino found no ambiguity in the references to ‘continuous service’ in either clause. Senior Commissioner Cosentino held that the phrase in the Education Assistants Agreement was not ambiguous and could not have the meaning argued by the respondent.

Senior Commissioner Cosentino issued directions clarifying the interpretation of ‘continuous service’ in the agreements. For the Education Assistants Agreement, Senior Commissioner Cosentino ruled that ‘continuous service’ in Clause 13.5 referred to continuous service under Clause 54 of the Education Assistants' (Government) General Agreement 2023. Regarding the Government Services Agreement, Senior Commissioner Cosentino determined that ‘continuous service’ in Clause 52.4 meant an unbroken period of service with the employer, incorporating specific periods outlined in the agreement, but excluding others.

The decision can be read here.

Under the Industrial Relations Act 1979 (WA), the claimant alleged that the respondent breached entitlement provisions of various industrial agreements applicable to union member Mr Corr during his employment. The alleged contraventions relate to the payment of a 20% loading for night shift and additional annual leave entitlements for continuous shift workers.

Magistrate O’Donnell concluded that the claim should be dismissed for several reasons. Firstly, Magistrate O’Donnell addressed the respondent's ability to be sued, establishing that the North Metropolitan Health Service (NMHS) is a relevant successor to the Metropolitan Health Services Board, and thus the entire claim is properly brought.

In relation to the Night Shift Penalty Contravention, Magistrate O’Donnell examined Mr Corr’s work arrangement and working hours, ultimately determining that his schedule did not constitute night shifts as defined in the agreements. Magistrate O’Donnell emphasised that Mr Corr’s long-standing work pattern, which began with the 1990 Agreement, was informal and not governed by rosters, leading to the dismissal of the claim for the Night Shift Penalty Contravention.

Similarly, regarding the Annual Leave Contravention, Magistrate O’Donnell found that Mr Corr did not meet the criteria for being considered a "continuous shift worker" as defined in the agreements, and therefore, the claim for additional annual leave was dismissed.

Magistrate O’Donnell also discussed the doctrine of estoppel, concluding that had the claim been valid, the claimant would have been estopped from 15 December 2017 onwards due to representations made during a meeting and subsequent silence, which induced the respondent to maintain the status quo.

In summary, Magistrate O’Donnell dismissed the entire claim, ruling that Mr Corr was not entitled to the alleged contraventions of night shift penalties and additional annual leave and that the doctrine of estoppel would apply if the claim had been valid.

The decision can be read here.

The Western Australian Industrial Relations Commission will be closed from 4:00pm on Friday, 22 December 2023, re-opening at 8:30am on Tuesday, 2 January 2024.

During this period, Commission documents can still be lodged via the online lodgement system or by email to registry@wairc.wa.gov.au. 

Please note, in accordance with regulation 4(3) of the Industrial Relations Commission Regulations 2005, where a document is required to be filed or lodged within a prescribed time and the Registry is not open for business on the last day on which it may be filed or lodged, it is taken to have been filed or lodged within time if it is filed or lodged on the next day that the Registry is open for business.

Should you require urgent assistance during this period, please contact the Registrar or Deputy Registrar on the following details:

Registrar Susan Bastian - 0404 044 338 or susan.bastian@wairc.wa.gov.au

Deputy Registrar Sarah Kemp - 0419 822 989 or sarah.kemp@wairc.wa.gov.au

The Industrial Appeal Court dismissed the appellant's appeal, considering it to be ‘moot’, emphasising the Court’s limited jurisdiction under the Industrial Relations Act 1979 (WA) and finding that the grounds presented did not meet the statutory criteria for an appeal.

The appellant appealed to the Court from a decision of the Full Bench of the Western Australian Industrial Relations Commission, which unanimously dismissed four interlocutory applications in an appeal. However, the appeal was considered moot as the Full Bench had already dismissed the substantive appeal, and no appeal had been made against that decision.

The interlocutory applications dismissed by the Full Bench involved various claims, including an application to amend the original claim; a request for discovery of documents; an application to invite the respondent to admit facts; and an application for discovery related to conflicts of interest. The Full Bench in its decision, found that these applications were not able to be dealt with for various reasons, including the limited scope of an appeal defined by section 49(4) of the Act.

The Court emphasised the limited jurisdiction of the Industrial Appeal Court to hear an appeal from a decision of the Full Bench. The right of appeal is given by statute, and the Court’s jurisdiction is restricted to specific grounds outlined in section 90(1) of the Act, such as excess of jurisdiction, errors in law, or denial of the right to be heard.

The appellant's grounds of appeal were not clearly articulated, but the Court identified three potential grounds related to alleged errors in the handling of interlocutory applications. The Court scrutinised each ground and found none fell within the jurisdiction of the Court. The appellant's claims regarding the Registry’s alleged errors in handling online lodgement and transcript editing, did not meet the statutory criteria for an appeal.

According to the Court, none of the four interlocutory applications enlivened the jurisdiction of the Court under section 90(1) of the Act to hear an appeal. The Court concluded that the appeal must be dismissed.

In conclusion, the Court found that the appeal lacked merit and dismissed it, reinforcing the limited scope of the Court’s jurisdiction in hearing appeals from decisions of the Full Bench.

The decision can be read here.