A s 66 order was issued to allow the operation of the respondent’s Interim Union Council to continue because the rules of the respondent and its counterpart federal body had fallen out of alignment.

Background

The order issued in Media, Entertainment and Arts Alliance of Western Australia (Union of Employees): [2022] WAIRC 00087; [2022] 102 WAIG 194; [2022] WAIRC 00092; [2022] 102 WAIG 195 on 2 March 2022 established an Interim Union Council of the respondent.  The reason for this was that the rules of the respondent and its counterpart federal body, the Media Entertainment and Arts Alliance, an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth), had fallen out of alignment.  The order operated until 28 February 2023.

Contention

The applicant applied under s 66 of the Industrial Relations Act 1979 (WA), seeking either an extension of the operation date of the 2 March 2022 order or a new order in the same terms, but with an operative date of 31 August 2023.

The respondent required the continuation of the Interim Union Council to register future anticipated agreements under the Act as industrial agreements and to bring an application under s 71 of the Act for a fresh s 71 certificate. 

Findings

The Commission issued a new order under s 66 of the Act.

A variation of the 2 March 2022 order issued in PRES 6 of 2022 was not possible because the operative date of 28 February 2023 has passed, making the Commission functus officio.

The decision can be read here.

The Tribunal stated that it has jurisdiction under the Occupational Safety and Health Act 1984 (WA) regarding any dispute arising from employee’s rights and entitlements in circumstances where they hold a concern for their health and safety at a workplace and the entitlement to payment during such period.

Background

The applicant was employed by the respondent as a stevedore at the Port of Fremantle, Western Australia. On 27 July 2020, the applicant, along with several other stevedores, ceased working on a crane due to concerns for their safety because of a crack that had been found in the crane railing. Later that day, the respondent advised the applicant that he would be stood down and four hours of pay would be deducted from his salary.

Contention

The applicant contended that he refused to work in accordance with s 26 of the Occupational Safety and Health Act 1984 (WA). Thus, pursuant to s 28(1), he was entitled to be paid and applied to the Tribunal for an order pursuant to s 28(2), for the deducted salary.

Opposing the applicant, the respondent said the application should be dismissed on the basis that the Tribunal lacked jurisdiction to determine it.

The respondent is a ‘national system employer’ within the meaning of the Fair Work Act 2009 (Cth) and has been an employer of ‘waterside workers’ at all material times within the meaning of the FW Act and the Workplace Relations Act 1996 (Cth). The applicant’s employment with the respondent was covered by the Patrick Terminals Enterprise Agreement 2016, which was made and approved under the FW Act.

The respondent submitted that the applicant’s refusal to work on the crane was ‘industrial action’ as described in s 19(1)(b) of the FW Act. Therefore, under s 474(1) of the FW Act, this requires a reduction in pay. Thus, sections 26(1), 28(1) and (2) of the OSH Act were inoperative because they were directly inconsistent with a Commonwealth law, namely Part 3-3, Division 9 of the FW Act.

The applicant disputed that the Tribunal lacked jurisdiction, submitting that ss 26 and 28 of the OSH Act were not directly inconsistent with the FW Act.

The respondent contended that the FW Act intends to 'cover the field’ and regulate exclusively and, this being the case, s 109 of the Australian Constitution (Constitution) renders s 28(1) of the OSH Act inoperative.

The applicant contended that the FW Act does not purport to legislate against an employee being entitled to refuse to work in circumstances set out in s 26 of the OSH Act and in particular does not prohibit payment by an employer to an employee in the circumstances covered by s 26 and s 28 of the OSH Act nor preclude an employee referring a dispute to the Tribunal under s 28(2) of the OSH Act.

The Commonwealth Attorney General (intervening) submitted there was no direct inconsistency. Sections 26(1), 28(1) and (2) of the OSH Act do not ‘alter, impair or detract from’ Part 3-3, Division 9 of the FW Act. No ‘real conflict’ arose from the mere co-existence of these laws. The FW Act does not cover the field as contended by the respondent.

The Attorney General also submitted that if there was s 109 inconsistency between these laws, it was more likely an operational inconsistency. However, it was not yet possible to determine whether such inconsistency exists. Absent findings of fact, the issue was hypothetical and may not need to be decided.

Findings

The Tribunal found that it had jurisdiction to hear and determine the application. This was because the OSH Act provides for application to the Tribunal regarding any dispute arising from employees’ rights and entitlements in circumstances where they hold a concern for their health and safety at a workplace and the entitlement to payment during this period.

Where an employee refuses to perform work in accordance with s 26 of the OSH Act, the exception to the meaning of industrial action contained in s 19(2)(c) of the FW Act applies. Thus, the State law is complementary to the Commonwealth law and there is no inconsistency. However, adopting the Attorney General’s approach, the Tribunal refrained from findings concerning whether the applicant’s conduct fell within s 26, because findings of fact or fact and law had not been made.

The decision can be read here.

The Tribunal found that the applicant did not meet the requirements of regulation 5.45B of the Occupational Safety and Health Regulations 1996 (WA) because he provided limited evidence of his work and experience with non-friable asbestos-containing material, which was not satisfactory or verified by a referee.

Background

On 27 May 2021, the applicant applied to WorkSafe for a restricted asbestos removal licence, which was subsequently refused on the basis that his training and experience did not satisfy the requirements of regulation 5.45B of the Occupational Safety and Health Regulations 1996 (WA).

The licence application required that the applicant nominate a person “to provide a detailed description of at least 12 months of verifiable (via referees) experience in asbestos removal that occurred within the last five years from the date of the application”.

The applicant provided four examples of experience. Two examples occurred in March and July 2016. A restricted licence number was not provided for the remaining two examples.

On 2 July 2021, the respondent wrote to the applicant stating that it could only consider one of the examples provided because the others did not meet the application requirements.

In February 2022, a letter sent by the respondent to the applicant stated that his licence application was refused because the applicant had:

1. not provided verifiable evidence and the respondent could not be satisfied that he is able to do asbestos work involving non-friable asbestos-containing materials in a safe and proper manner, or that he has the experience to properly supervise and manage asbestos work done under the licence; and
2. not addressed the respondent’s concerns that his referees did not corroborate the experience he provided.

Contention

The applicant’s grounds of appeal were:

1. the respondent took too long to make its decision;
2. the respondent should have considered all of the applicant’s experience;
3. there is a shortage of people with such licences; and
4. the applicant has organised training with a training service provider so that more people can become qualified to remove asbestos.

The respondent submitted that its decision to refuse the applicant’s licence should be affirmed under s 61A(3)(a) of the OSH Act.  Such decision was made on the basis that the applicant had not provided sufficient evidence of relevant and varied industry experience to demonstrate that he had the skills necessary to supervise and manage asbestos work in a safe and proper manner.

Findings

The Tribunal dismissed the application and affirmed the respondent’s decision because, as contended by the respondent, the applicant had not produced satisfactory evidence.

The applicant provided limited experience, which could only result in a finding that the experience the applicant pointed to in his Licence Application (including the supplementary evidence/example) was not verified by a referee.

The decision can be read here.

The Public Service Appeal Board dismissed the appeal of the respondent’s decision to dismiss the appellant based on the substantiated allegations of excessive use of resources and use of out of service equipment.

While the Board allowed the appeal out of time because the delay was caused by representative error and the appellant presented an arguable case, it found that the appellant's lack of insight into the seriousness of his actions and his refusal to acknowledge the validity of the out of service tag supported the decision for dismissal.

Background

The appellant was employed by the TAFE respondent as a Technical Support Officer – Fabrication, at its Midland campus from 1 September 2007 to 13 April 2022.

On 9 March 2022, the respondent notified the appellant that it was terminating his employment, providing five weeks’ notice, for:

1. contravening the respondent’s Staff Code of Conduct, the Public Sector Code of Ethics, and the respondent’s Information Services Acceptable Use Policy for Staff by using excessive work time and resources on non-work-related matters; and
2. breaching the Code of Conduct, the PS Code, the Occupational Safety and Health Act 1984 (WA), and the respondent’s Occupational Health and Safety Policy by removing an out of service tag from a forklift without authorisation and using the forklift.

The forklift, which was the subject of point 2 above, had been experiencing mechanical issues, including problems with the brakes, emitting a squeaking noise, and other wear and tear. On August 25, 2021, a technician serviced the forklift, identified brake issues, and tagged the forklift as "out of service" due to metal-on-metal brakes and other necessary repairs.

On September 15, 2021, the Senior Supervising Technician observed the appellant driving the tagged-out forklift. The technician informed the appellant that the forklift was tagged out due to brake issues and instructed him to park it. The appellant reportedly dismissed the issue, claiming there was nothing wrong with the brakes and continued to operate the forklift.

The Technician immediately reported the incident to his superior detailing the appellant’s actions and comments. The Technician noted that the appellant claimed the issues with the brakes were "rubbish" and ignored the screeching noise from the brakes during the demonstration. The forklift was retagged and secured to prevent further use.

The Technician also received guidance from a safety consultant regarding the proper procedures for tagging out equipment. The consultant emphasized that tagged-out equipment must not be operated until authorised personnel have removed the tag and ensured safety.

Contentions

The appellant contested his dismissal and appealed to the Board, arguing that he should not have been dismissed.

The appellant's appeal was filed late, on 30 March 2022, approximately four months after it was due on 27 July 2022. He claimed that this delay was due to confusion and representative error. He had sought legal advice but had difficulty securing representation due to financial constraints.

The respondent acknowledged that the appellant's appeal presented an arguable case and did not object to his out-of-time application. They also stated that, aside from defending the appeal, they would not face any specific prejudice if an extension was granted.

 The appellant concedes that he used his work email for personal matters, including sending and receiving personal emails concerning his daughter's legal issue, tenancy matters, the Speedway Commission, movie streaming, cryptocurrency trading, and contesting an infringement. He admits that these emails were not endorsed or approved by the respondent and he should not have utilised his work email for personal matters, instead, he should have refrained from working on personal tasks during work hours.

 The respondent argued that the appellant's use of work hours for personal matters and sending personal emails from his work account were serious actions. The respondent described the allegation against the appellant as "using excessive work time and resources on non-work-related matters," which they equated to time theft, a serious allegation.

 The respondent contended that these actions could undermine the public's confidence in the respondent's responsible use of taxpayer-funded resources and might give the impression that such actions were. It was argued that the appellant's use of the respondent's resources, including his work email, for personal purposes could potentially tarnish the respondent's reputation. External parties might interpret these actions as being carried out on behalf of the respondent, which could negatively affect its image.

 However, the appellant contends that his extensive work conducted from home over 14 years far outweighed the time he spent on personal matters while at work during six months of unauthorised email use. His arguments centre on his belief that his extensive work dedication and personal situation mitigated the alleged misuse of resources.

 Regarding the forklift incident, the appellant contended that he had a deep mechanical understanding and could accurately determine the safety of the forklift. He alleged that the decision to tag out the forklift was influenced by others within the organization, and he claims that the reported issues with the brakes were exaggerated or manipulated to justify servicing. He disputes the notion that the forklift was unsafe and argues that the whole incident was a charade to validate the service of the forklift.

 The respondent contended that the appellant's lack of understanding about the seriousness of his actions demonstrated an absence of insight. It was suggested that this lack of insight was relevant when determining the appropriate penalty for his actions. The appellant argues that he had valid reasons for his behaviour, particularly related to his daughter's situation and that his actions were not as detrimental as portrayed.

 Finding

The Board held that the appellant was blameless for the delay in filing the appeal and found the  representative error was a sufficient reason to extend the time to file the appeal. Further, the Board acknowledged that the appellant had an arguable case in the circumstances. Thus, the appeal was allowed out of time.

The Board found that the appellant did indeed remove an "out of service" tag from a forklift and operated it while knowing it had been tagged out. This conduct was against the respondent's guidelines and procedures. While The appellant contended that the tagging was a façade, the Board did not accept this explanation. It concluded that the tagging was due to genuine concerns about the forklift's safety.

The Board noted that the appellant lacked insight into the seriousness of his conduct. He failed to acknowledge the validity of the out-of-service tag and the potential risks associated with operating a tagged-out forklift. The Board considered this lack of insight as relevant when determining an appropriate penalty.

Despite mitigating factors such as the appellant's age, length of service, and financial situation, the Board found that these factors did not warrant altering the respondent's decision to dismiss him. The Board concluded that the appellant's conduct in both the excessive use of the respondent resources and the out-of-service incident justified his dismissal. The Board ordered that the appeal be dismissed, thereby upholding the respondent's decision to terminate the appellant's employment.

The decision can be read here.

The Commission, under s 40B of the Industrial Relations Act 1979 (WA), implemented several variations to the Farm Employees Award 1985 to align it with contemporary standards, improve clarity, and ensure fairness for farm employees in Western Australia.

 Key changes included adjustments to wages, leave entitlements, and definitions, as well as the inclusion of provisions related to parental leave and domestic violence leave.

Background

The Commission provided notice of its intention to vary the Award to Unions WA, the Chamber of Commerce and Industry, the Australian Resources and Energy Employer Association, the Minister for Industrial Relations, the Western Australian Farmers’ Federation (Inc) and each of the parties to the Award being the Australian Workers’ Union and all named individual employers.

 The commission subsequently convened a conference to seek input from interested parties about the issues with the Award, and the appropriate drafting revisions to address them. Representatives for the Minister and AWU attended the conference.

 The Commission then published notice of the proposed variations to the Award, pursuant to s 40B(2). The Commission also gave notice to the parties named in s 40B(2) and to the Pastoralists and Graziers Association of Western Australia of a hearing to afford them an opportunity to be heard in relation to the proposed variations.

WA Farmers and PGA applied for and were granted permission to intervene on the basis they each had a sufficient interest in the matter.

Contentions

PGA raised concerns about some of the new requirements in the proposed clause 5 'Hours of Work,' particularly the impact on employers, especially concerning minimum hours for part-time workers and written agreements to vary part-time hours. PGA requested a 12-month transitional period to educate its members and allow employers to make necessary changes.

 WA Farmers, representing the Dairy Council, acknowledged that the Award did not currently cover the dairy farming industry. However, they raised concerns about the potential future coverage of dairy farms and the suitability of the proposed 'Hours of Work' provisions for dairy farming activities like milking and calf rearing.

Findings

The Commission implemented several variations to the Award.

 The Award had not been reviewed or substantively varied in over 25 years, with the most recent substantial variation occurring in 1998. Several clauses of the Award referred to laws and industrial instruments that have since been repealed, superseded or have become obsolete. The Award also referred to persons and organisations no longer in existence and contained gendered language. The variations rectified these issues.

 The Commission made the following specific variations to modernise and align the Award with current legislation and industrial practices while ensuring clarity and consistency in its provisions.

1. Title of the Award: The title of the Award was updated to remove the year of the Award, following current naming practices for awards. Additionally, the reference to the Award replacing a 1946 Award was removed for brevity since it no longer served a useful purpose.
2. Term Clause: The term clause, which defined the duration of the Award, was deleted as it was no longer relevant.
3. Definitions Clause: A new definitions clause was inserted, and definitions from other parts of the Award were moved here for clarity.
4. September 1989 State Wage Principles: Clause 2A of the Award, which dealt with the application of the September 1989 State Wage Principles, was deleted because these principles are no longer in effect.
5. Employment Relationship: Clause 5, previously titled 'Contract of Service,' was renamed 'Employment Relationship.' It was modified to align with the provisions of the Pastoral Industry Award 2020 and includes information about types of employment, employment status, and employment conditions.
6. Wages Records (Clause 10): Clause 10, which dealt with wages records, was modified to align with the requirements of the Act. Additionally, Clause 10(2) was made consistent with the provisions of s 49J of the Act concerning entry to investigate breaches.
7. Farm Tradesman Definition: The definition of 'farm tradesman' has been updated to refer more generally to a person who holds a qualification under the Vocational Education and Training Act 1996 (Cth) since there are no specific prescribed vocational education training qualifications for 'farming' under this Act.
8. Trainee Rates of Pay: A new clause was inserted to include trainee rates of pay and conditions of employment derived from the AWU National Training Wage (Agriculture) Award 1994, consolidating conditions for trainees in one place.
9. Parental Leave: The parental leave provisions of the Award were updated to align with the National Employment Standards under the Fair Work Act 2009 (Cth), which apply to all employers and employees in Australia.
10. Long Service Leave: The Long Service Leave Provisions were varied to refer to the provisions of the Long Service Leave Act 1958 (WA).
11. Superannuation (Clause 19): Clause 19, which dealt with superannuation, was updated to remove references to defunct and deregistered superannuation schemes and to address potentially discriminatory clauses. The variations aim to align the superannuation provisions of the Award with the requirements of the Act.
12. Arrangement of the Award: The arrangement of the Award was updated for clarity, logic, and consistency with contemporary industrial instruments.
13. Other Variations: Various substitutions and variations have been made throughout the Award to improve clarity without altering the substantive operation of the clauses.

The Commission made the further variations to ensure compliance with the Minimum Conditions of Employment Act 1993 (WA).

1. Family and Domestic Violence Leave: A new clause was added to address Family and Domestic Violence Leave.
2. Hours of Work (Clause 7): The existing Clause 7 of the Award dealt with hours of work and required that working hours be agreed upon between the employer and the employee, with the condition that all employees should be allowed one full day off each week while also ensuring necessary attention to stock. However, this provision was considered potentially less favourable than s 9A of the MCEA, which restricts employees from being required or requested to work more than 38 hours per week, with reasonable additional hours determined under s 9B. As a result, Clause 7 was modified to align with s 9A of the MCEA.
3. Holidays and Annual Leave (Clause 8): The original Clause 8 of the Award covered both public holidays and annual leave. It had omitted Easter Sunday as a public holiday and referred to Foundation Day instead of Western Australia Day as a public holiday. The clause has been split into two separate sections: one dealing with public holidays and the other with annual leave. The public holiday provisions were updated to reflect current gazetted public holidays, and special public holidays proclaimed under the Public and Bank Holidays Act 1972 (WA) are recognized as public holidays for Award purposes. Additionally, Clause 8(3)(a) was removed because it was found to be inconsistent with the MCEA.
4. Annual Leave (Clause 8 Continued): The provisions regarding annual leave were updated to align with the MCEA. Under the original Award, annual leave accrued after 12 months of continuous service, whereas the MCEA allows for weekly accrual. The Award did not provide for the payment of annual leave in advance, unlike the MCEA, which allows for such payments under s 44. The Award also did not permit annual leave to be taken in one or two periods unless there were special circumstances and mutual consent from the employer, employee, and relevant union. A new clause was inserted to address these differences while preserving other conditions associated with annual leave, including leave loading.
5. Personal Leave (Clause 9): Clause 9, previously titled "Sick Pay," was updated to refer to personal leave rather than sick pay. The changes aligned this clause with the MCEA. Personal leave under the Award was limited to reasons related to personal health or injury, whereas the MCEA allows for personal leave to be taken for illness or injuries affecting a household member of the employee as well as for unexpected emergencies. The Award also accrued personal leave monthly, unlike the MCEA's weekly accrual. Additionally, the Award provided only five days of sick leave in the first year of service, whereas the MCEA allows for two weeks of leave or 76 hours in the first year of service. The Award had restrictions on taking periods exceeding 10 weeks in a year of service as sick leave and did not provide for unpaid personal leave. The modifications aimed to align the Award with the MCEA while retaining more favourable conditions from the Award.
6. Bereavement Leave (Clause 11): Clause 11, which pertained to bereavement leave, was found to be less favourable than s 27 of the MCEA. The changes incorporated the provisions of the MCEA related to bereavement leave.
7. Junior Rates of Pay: The rates of pay for junior employees aged 19 years, 18 years, and 17 years as specified in the Award were found to be 5% less than the junior rates of pay outlined in s 13 of the MCEA. As a result, the junior rates of pay in the Award were increased to align with the legislated minimum rates of pay in the MCEA.

The decision can be read here.