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Employer reasonably withheld approval of study application

The Commission has dismissed an application made by a seafarer who alleged that he had been denied a contractual benefit when his employer did not approve his request to study and sit for an AMSA Chief Mate Certificate of Competency. The applicant alleged that his entitlement to this request was contained in clause 13.9 of the Svitzer Australia Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2010 (the Agreement) which was referred to in his contract of employment with the respondent. The Commission considered whether cl 13.9 was a contractual entitlement and, if so, was it breached.

Commissioner Matthews determined that cl 13.9 conferred a contractual entitlement on the applicant because the parties' contract of employment included language of contractual incorporation and it was reasonable to consider that the Agreement was incorporated into the contract.

Matthews C observed that cl 13.9 included a qualification, that the entitlement must not be unreasonably withheld by the employer. The respondent's financial situation and the fact that there was no pressing need for the applicant to become a chief mate was considered by Matthews C who concluded that the applicant had not established that the respondent had withheld their consent unreasonably.

The applicant claimed that a deal had been made in 2016 that if he did certain things the employer would fund his chief mate certificate. Matthews C determined that this claim did not need to be determined because the applicant had not raised this deal in his cl 13.9 application to the respondent.

The Commission dismissed the application.

The decision can be read here.

State Shop Award does not apply to the retail pharmacy industry

The Full Bench of the Western Australian Industrial Relations Commission has upheld appeals against a decision of the Commission interpreting the scope of The Shop and Warehouse (Wholesale and Retail Establishments) State Award 1997 (the Award) as to whether it applies to the retail pharmacy industry (the first instance decision can be found here).

When the Award was made in 1977 it named a number of retail pharmacies as respondents. In 1995, the last of those named respondents engaged in the retail pharmacy industry was removed from the respondency schedule to the Award.

Earlier this year, the Commission at first instance interpreted the Award and declared that it still applies to the retail pharmacy industry in Western Australia.

The Pharmacy Guild of Western Australia (Pharmacy Guild) and Samuel Gance t/as Chemist Warehouse Perth appealed against this decision.

The majority of the Full Bench, Chief Commissioner Scott and Senior Commissioner Kenner, found that the Commission at first instance had erred in finding that there was ambiguity in the Award and in taking into account clauses in the Award beyond the scope clause and schedule of respondents. They found that there was no ambiguity in the scope clause and respondency schedule and rather that the determination of the scope clause required a fact finding exercise.

Scott CC and Kenner SC rejected an argument that the process for the 1995 amendment to the schedule of respondents did not comply with the requirements of section 29A of the Industrial Relations Act 1979 (WA) (the Act) after they found that the application to remove the named respondent from Schedule C was made by the Commission acting on its own motion. Further, as all parties to the Award listed in Schedule C had been served a copy of the claim, the legal consequence of the 1995 decision was the removal of the retail pharmacy industry from the scope of the Award from that time.

Commissioner Walkington, dissenting, found that the Commission at first instance did not err in taking into account clauses beyond the scope clause and respondency schedule in determining the scope of the Award and disagreed with the appellants contention that the learned Commissioner's reasons for decision were inadequate. Walkington C also agreed with the learned Commissioner's conclusion that the 1995 amendments were not made according to the requirements of the Act.

The decision can be read here.

Appointments may be either on a permanent or fixed term basis

The Commission has dismissed an application made by The Civil Service Association of Western Australia Incorporated on behalf of its member. The applicant's member alleged that she was still a permanent public service officer. The applicant’s member was informed her permanent position was to be abolished in 2014, following which she was then seconded to the respondent who subsequently entered into a fixed-term contract of employment with her.

Commissioner Matthews considered that the applicant's member's claim must fail because clause 1 of the contract stated that her appointment with the respondent was done in accordance with section 64(1)(b) of the Public Sector Management Act 1994 (PSM Act). Under s 64(1) of the PSM Act, appointments may be made on either a permanent or fixed term basis and consequently a person cannot be appointed for both an indefinite period and a finite term. The applicant argued that she is a permanent public service officer because all of the parties to the contract intended for her to maintain that status, however, this argument could not be established because as a matter of law and without more Matthews C could not simply ignore the legal effect of clause 1.

Turning to the question of fairness, the applicant claimed that it would not be fair for its member to suffer an effect of the contract which no one involved in its formation intended. On the balance of probabilities, Matthews C found that it is not now unfair for the respondent to assert that the applicant's member was employed by it on the terms set out in the contract of employment. This is because the parties’ intentions were, for the most part, not relevant to the question of fairness and any of the intentions that were relevant were not enough to make the respondent now relying upon the contract unfair.

The decision can be read here.

Applicant entitled to reasonable period of notice

The Commission has partially granted a claim made by a restaurant manager who was summarily dismissed from his employment with The Local Shack Mandurah.

The applicant had been dismissed following an incident that occurred on 27 January 2019 where a shortage of rostered staff caused wait times at the restaurant to be blown out, and, because the applicant had not completed a required set of computer manuals or modules.

Commissioner Matthews considered that a summary dismissal by an employer is justified in instances where an employee's behaviour is so serious that dismissal without notice is appropriate. The Commissioner considered whether the applicant's summary dismissal was an appropriate response in all of the circumstances and determined that it was not. However, Matthews C concluded that the evidence suggested that the applicant could not have survived the six-month probation period.

Matthews C then found that a clause in the contract, relating to notice periods, would not apply because the applicant had not completed his probation period and resolved that the applicant was entitled to reasonable notice of one week.

The decision can be read here.

Anglican Schools Commission Support Staff Enterprise Agreement 2015 interpreted

The Commission has issued an interpretation of the Anglican School Commission Support Staff Enterprise Agreement 2015 (the Agreement) after the applicant sought clarification on what remuneration applied to one of its members.

Commissioner Matthews noted that prior to the Agreement being registered on 21 March 2017 the member, and some of the respondent's other employees, were subject to the Independent Schools' Administrative and Technical Officers' Award 1993 (the Award).

Matthews C considered evidence that some employees who were previously subject to the Award were paid over the Award rate. Matthews C found that if, prior to the Agreement's registration, those of the respondent's employees that were paid at Levels 1 to 4 under the Award should be paid in accordance with table 1 of the Agreement, and, that table 2 would apply for employees that were previously being paid above the Award rate.

The decision can be read here.

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