The applicant was employed as National Sales Director with the respondent.  His denied contractual benefits claim under s 29(1)(d) of the Industrial Relations Act 1979 (WA) sought recovery of unpaid wages, superannuation and out-of-pocket expenses said to be owing under a written contract with the respondent. The respondent filed no material and did not appear at the hearing.

The contract contained an express clause stating the relationship was not one of employer and employee. However, Commissioner Tsang found that, in substance and practical reality, it was a relationship of employment, having regard to evidence that the applicant reported to the respondent’s sole director, worked fixed hours (including a minimum 40-hour week), was paid a fixed annual salary by weekly payments with payslips and PAYG withholding, used payroll software to apply for leave which was approved by management, and was supplied with the necessary tools and resources.

The Commissioner also found an implied term entitling the applicant to reimbursement of reasonable work-related expenses on provision of invoices. However, Commissioner Tsang was not satisfied that the remuneration schedule created a separate contractual entitlement to superannuation beyond the respondent’s statutory obligations.

The application was granted in part.

The decision can be read here.    

The appellant lodged an appeal with the Public Service Appeal Board against the respondent’s decision to withdraw an offer of part-time employment under a fixed-term contract, following the end of his casual engagement.

Before the appeal was listed for final hearing, the parties reached a settlement in which the appellant accepted a payment and agreed to release the respondent from any claim for relief or remedy relating to any entitlement arising in the course of his employment and the cessation of that employment. The appellant did not discontinue the appeal and later sought that the Board pursue what he characterised as broader compliance and public-interest issues.

The Public Service Appeal Board (The Board) considered whether the appeal should be dismissed under s 27(1)(a) of the Industrial Relations Act 1979 (WA), including because the parties had entered a binding settlement resolving claims arising out of the appellant’s employment and its cessation. The Board also considered its limited statutory function and powers: the appeal did not concern a disciplinary dismissal or a dismissal involving findings of poor performance, and in any event the Board’s powers were confined to adjusting the decision under appeal and did not extend to enforcing industrial instruments, determining alleged contraventions of an industrial agreement or statute, or commencing enforcement or penalty proceedings (which lie elsewhere). The Board treated the appellant’s submissions as raising broader allegations of non-compliance and requests for referral to oversight bodies, but found those matters were outside the appeal’s scope and the Board’s jurisdiction.

The Board was satisfied that further proceedings were not necessary or desirable and that the appeal could not usefully proceed in light of the settlement and the Board’s lack of jurisdiction to grant the relief sought. Accordingly, the appeal was dismissed. 

The decision can be read here.    

The appeal related to a decision refusing the registration of an industrial agreement.  In the initial decision, the Commission found that the employer was a constitutional corporation and as such a National System Employer under s 14 of the Fair Work Act 2009 (Cth). The Commission considered that this placed the agreement outside the State industrial relations jurisdiction that applies to non-national system employers, and it therefore refused to register the agreement.

Community Employers of WA applied to intervene in the appeal.  Under s 27(1)(k) of the Industrial Relations Act 1979 (WA).  The Full Bench noted the settled principles governing intervention, including that a person must demonstrate a “sufficient interest” in the matter; that natural justice requires a hearing for those whose rights will be directly affected; and that an indirect or general interest will not ordinarily justify intervention. The Full Bench emphasised that an appeal is confined to identifying error in the decision under appeal and must be determined on the evidence and matters raised at first instance, subject only to a limited and strictly constrained capacity to admit fresh evidence.

The Full Bench held that the proposed intervenor had not established a sufficient interest to warrant intervention in the appeal. The matters it sought to raise, including general industry education and the desirability of consistent decision-making, did not bear upon the confined appellate question of whether the Commission at first instance made appealable error in concluding the employer was a constitutional corporation. Accordingly, the application for leave to intervene was therefore dismissed.

The decision can be read here.   

The applicant was employed by the respondent as a cook from August 2023 to September 2023.  After a busy service day she was involved in exchanges between staff on a WhatsApp group concerning staffing levels and the respondent’s response to customer complaints.

The applicant contended that, following those exchanges, the respondent terminated the employment relationship during a telephone call. The respondent disputed that any dismissal occurred, asserting that the applicant had ceased attending for work and had thereby abandoned the employment or, in substance, resigned.

The applicant applied to the Commission for relief on the basis of unfair dismissal, with the Commission required to determine whether the employment had been terminated at the initiative of the respondent.

Commissioner Walkington examined contemporaneous communications and surrounding conduct, including the applicant’s removal from the staff WhatsApp group before the telephone call, which supported an inference that the respondent had already decided to end the employment relationship. The Commissioner rejected the respondent’s reliance on the applicant’s later request for a separation certificate as demonstrating resignation and found on the evidence that the applicant had been dismissed.

Having found that a dismissal occurred, the Commissioner determined whether it was harsh, oppressive, or unfair. The Commissioner held that the dismissal was unfair because the applicant was not provided with a fair opportunity to respond to the matters relied upon to justify termination and had not been warned that the conduct in issue might lead to dismissal. Accordingly, the application was upheld, and final orders for compensation were to be determined.

The decision can be read here.   

The applicant applied to the Commission in Court Session for an order revoking Mr Margjini’s right of entry permit under the Industrial Relations Act 1979 (WA). Mr Margjini was issued the permit in October 2022 following an application by his union, and it continued under the current statutory scheme after the 2025 amendments to the Act commenced. The application followed an inquiry begun in August 2025 after media reporting drew attention to an incident involving Mr Margjini at a construction site in May 2025. During that inquiry, the applicant obtained CCTV footage, witness statements, and other material, and formed the view that Mr Margjini might no longer be a fit and proper person to hold a permit.

The applicant relied on both Mr Margjini’s conduct at the site in May 2025 and his criminal history between 2003 and 2017. It was alleged that, during the incident, Mr Margjini engaged in threatening and physically intimidating conduct towards another worker, pushed aside a person who attempted to intervene, and impeded persons at the site during working time. The applicant submitted that this conduct was aggressive and menacing, and inconsistent with the restraint required of a permit holder. The applicant also relied on Mr Margjini’s substantial criminal record, including convictions for assault, assault occasioning bodily harm, intentional property damage, dishonesty offences involving stolen property and a motor vehicle, unlawful entry, weapons and firearms-related offending, breaches of bail and restraining orders, and repeated failures to comply with legal restrictions, including driving while disqualified. The applicant submitted that, taken together, those matters showed Mr Margjini was no longer a fit and proper person to hold the permit.

The CFMEUW and Mr Margjini contended that the right of entry provisions should be construed beneficially and as protective of lawful union representation, rather than as creating exceptional or quasi-investigative powers. They argued that the fit and proper person criteria were not disentitling rules but matters to be considered together, so that the absence of industrial-law contraventions, prior misconduct in exercising entry rights, suspensions, or permit breaches counted strongly in Mr Margjini’s favour. They also submitted that the statutory focus was on whether Mr Margjini remained fit to exercise entry rights, not on punishment for past wrongdoing viewed in isolation.

As to the incident itself, Mr Margjini and the CFMEUW accepted that Mr Margjini’s behaviour was unprofessional, aggressive, and inappropriate, but contended that it occurred in a heated exchange provoked by the conduct of the other worker. They alleged that the other worker had spoken aggressively, used repeated profanity, made a racially tinged taunt about speaking English, and invited a physical confrontation, and that these matters were important in assessing the seriousness of Mr Margjini’s reaction. They further submitted that some earlier authority supported a construction requiring a connection between any hindering conduct and the exercise of right of entry powers, and that the Commission should take into account that Mr Margjini had otherwise exercised entry rights lawfully, had undertaken training, counselling and remedial measures, and was regarded by a number of industry participants as reformed and generally professional. In the alternative, Mr Margjini and the CFMEUW argued that if the Commission considered a sanction necessary, conditions or a suspension would be a sufficient response instead of revocation.

The Commission considered the statutory framework governing right of entry permits, including the requirement that a permit holder be a fit and proper person and the matters that must be taken into account on an application to revoke a permit. It held that the amended provisions required a broad evaluative assessment and were not limited to conduct occurring during the formal exercise of right of entry powers. The Commission found that both Mr Margjini’s criminal history and his conduct at the site were relevant to that assessment, as were broader questions of character, integrity, judgment, and willingness to comply with the law. It emphasised that right of entry powers are significant statutory powers affecting employers, occupiers, and employees, and that the legislative scheme seeks to balance the role of unions in representing workers with the right of others at a workplace to go about their business without undue interference.

On the evidence, including CCTV footage and witness testimony, the Commission found that Mr Margjini engaged in aggressive, threatening, and menacing conduct during the May 2025 incident. It found that he repeatedly used his head to force the other worker backwards, made physical threats, pushed away a person attempting to intervene, and prevented the other worker from walking away, thereby hindering persons at the site during working time. The Commission accepted that Mr Margjini had expressed remorse, undertaken some remedial steps, and had otherwise acted appropriately on other occasions when exercising entry rights. It also accepted that there was evidence of provocation and that another person involved in the incident had used offensive language. However, it concluded that those matters did not excuse the conduct. The Commission also regarded Mr Margjini’s criminal history as significant because it showed repeated offending over many years, including violence, property damage, dishonesty, unlawful entry, weapons-related conduct, and non-compliance with court orders.

The Commission concluded that Mr Margjini was not a fit and proper person to continue holding a right of entry permit. It found that the seriousness of the May 2025 incident, considered together with Mr Margjini’s criminal history, warranted revocation rather than the imposition of conditions or suspension. Accordingly, the Commission ordered that Mr Margjini’s right of entry permit be revoked.

The decision can be read here.