The Commission has set aside a summons for a Bishop to give evidence as to the identity of the legal employing authority in a contractual benefit claim.

The applicant, a teacher, issued a summons for the Bishop to give evidence in this matter. He submitted that the ‘legal’ employer needed to be verified before the hearing, as the employment authority changed between the Bishop of Bunbury, the Catholic Education Commission of WA and the College Principal several times. The applicant maintained that the Bishop was aware of the terms of his employment contract and this matter.

The applicant further submitted that the attendance of the Bishop was required because he had been misdirected by the Roman Catholic Bishop of Bunbury (RCBB) on the issue of the legal identity.

The respondent, the RCBB, applied for the summons to be set aside. It submitted that the Bishop had no knowledge about the terms of the employment contract and was not able to respond to questions concerning the employment contract. The respondent contended that it would be inefficient and unnecessary for the Bishop to give evidence in this matter.

Commissioner Walkington found that the employing authority was the RCBB as per an order made on 1 July 2020 to amend the name of the respondent to the “Roman Catholic Bishop of Bunbury”. She found that the issue of the legal employing authority was considered and determined at the time this order was made.

Walkington C also found that the applicant had not provided any evidence to support his assertion that the RCBB had sought to misdirect him as to the legal employing authority.

The summons has been set aside by order.

The decision can be read here.

The Industrial Magistrate has confirmed a Compliance Notice issued pursuant to the Fair Work Act 2009 (Cth) on the basis that the employer failed to pay an employee overtime as required under the Restaurant Industry Award 2010 (Cth) (the Award).

Background

The claimant operated a restaurant called Chocolateria San Churro, Northbridge.

Between July 2011 and May 2016, the employee was employed by the claimant on a full-time basis, including during the period of October 2013 to May 2016 (the Contravention Period). During the Contravention Period, the employee claimed that he routinely worked 50 - 60 hours over 6 days per week but was not paid overtime as required under the Award.

In September 2019, the respondent, being a Fair Work Inspector, issued a Compliance Notice to the claimant in respect to the employee’s employment during the Contravention Period. The Notice alleged that the employee was employed as a ‘Food and beverage attendant grade 3’ (the Attendant) under the Award and required the claimant to calculate and rectify its failure to pay the employee overtime for that classification.

Submissions

The claimant argued that as the employee was a Manager, the Award could not apply to his employment. Alternatively, the claimant argued that if the employee was covered by the Award, the employee would not have been classified as the Attendant. This was because the work performed by the employee included further duties which placed him outside of the Award.

The claimant sought a finding that it did not contravene the Award and said that the Notice should be cancelled.

The respondent said the Notice should be confirmed as the Award applied to the employee’s employment and the appropriate classification under the Award is the Attendant.

Findings

Industrial Magistrate Scaddan found that although the employee was employed as a Manager, the majority of his work involved the duties described under the meaning of the Attendant in the Award. Her Honour noted that whilst the employee performed other duties, some of which could be described as managerial or supervisory, there was no clear evidence that these duties formed the major or substantial part of his work.

Her Honour also found that the employee held the appropriate qualifications and level of training to be classified as the Attendant.

Scaddan IM determined that the Award applied to the employee’s employment during the Contravention Period and he was required to be paid as the Attendant as described in the Award.

The Compliance Notice was confirmed.

The decision can be read here.

The Commission has dismissed a claim for a denied contractual benefit as it found that there was no contractual agreement to vary an employee’s contract so that the employee would receive 2.5% of his employer’s profits in any year, in addition to his ordinary salary.

The employee worked for his employer from June 2013 to July 2018. At various times over the course of his employment, his employer paid him money over and above his ordinary salary. The employee said that the amounts were paid to him pursuant to an oral agreement, having contractual effect, made between him and the employer’s managing director in early 2015.

The employee said that the exact term of the agreement was that he would receive, in addition to his ordinary salary, a sum equating to 2.5% of the employer’s profit in any year, where a profit was made. The employee claimed that for the 2017-18 financial year, he was denied that contractual benefit.

Commissioner Matthews received evidence from the employee, as well as from the employer’s managing director, general manager and administration manager.

Matthews C found that there was no evidence that a contractual agreement had been made to vary the employee’s contract so that he would receive 2.5% of any profits made into the future.

Matthews C’s view was that the employer liked to give his employees some money from time to time. There was nothing predictable or formal about this and it was certainly not contractual in nature.

The claim was dismissed.

The decision can be read here.

The Industrial Magistrate has upheld, in part, a claim for penalty rates for work performed on the weekend, unpaid annual leave and three weeks’ payment in lieu of notice of termination.

The claimant entered into an oral contract with the respondent to undertake work for him as a real estate sales representative until this arrangement was terminated by the respondent.

The claimant claimed:

• penalty rates for work performed on the weekends at the rates claimed for a ‘Grade 6 Administration Officer’ pursuant to the Clerk (Commercial, Social and Professional Services) Award No. 14 of 1972 (WA) (the Award);
• unpaid annual leave pursuant to the Award, or in the alternative, pursuant to the Minimum Conditions of Employment Act 1993 (WA) (MCE Act); and
• three weeks’ payment in lieu of notice of termination of employment.

The role of the claimant’s employment was in dispute. The claimant claimed that he was in an employee/employer relationship with the respondent. The respondent disputed this and maintained that the claimant was an independent contractor.

Industrial Magistrate Hawkins found, after considering the totality of the relationship, that the claimant was in an employee/employer relationship with the respondent and not an independent contractor.

However, her Honour found that the Award did not apply to the claimant’s employment as the claimant’s role did not wholly or principally require him to carry out the clerical duties outlined in the Award classification relied upon by the claimant or any of the classifications in the Award. Her Honour found, accordingly, that the claimant had no entitlement to claim penalty rates and annual leave pursuant to the Award.

However, Hawkins IM found that the claimant was entitled to annual leave pursuant to s 23 of the MCE Act as he was engaged as a permanent part-time employee and not a casual worker.

Her Honour also found that since there was no written notice given to the claimant of the date of termination of his employment, the claimant was entitled to be paid three weeks’ wages in lieu of notice.

The decision can be read here.

The Western Australian Industrial Appeal Court (IAC) has dismissed an appeal against the decision of the Full Bench of the Commission on the basis that the Full Bench did not err in its construction or interpretation of s 23 of the Industrial Relations Act 1979 (WA) (the Act).

Background

The appellant, the Director General of the Department of Education, summarily dismissed a teacher following an incident involving a primary school student that resulted in a criminal charge bring brought against the teacher. The teacher was also issued with an interim negative notice under the Working with Children (Criminal Record Checking) Act 2004 (WA) and his teacher’s registration was cancelled.

Eventually, the teacher’s criminal charge was discontinued, his negative notice was withdrawn and he had his registration reinstated.

However, despite requests, the Director General refused to re-employ the teacher. The Director General advised the teacher that she was satisfied that he had acted in a manner inconsistent with the Code of Conduct, that he had engaged in excessive physical contact with a student, that his employment file would remain marked ‘not suitable for future employment’ by the Department and imposed a reprimand.

At first instance

The State School Teachers’ Union brought an application seeking an order that the Director General reinstate or re-employ the teacher.

Senior Commissioner Kenner held that s 23(2a) of the Act did not exclude the jurisdiction of the Commission to enquire into and deal with the matter.

Kenner SC also found that it was unfair for the Director General to have refused to employ the teacher. Kenner SC made orders requiring the Director General to offer the teacher a contract of employment as a schoolteacher, and to pay the teacher an amount reflecting the salary and benefits he would have otherwise earned if he had remained employed.

Appeal to the Full Bench and the Industrial Appeal Court

The Director General appealed to the Full Bench on 8 grounds. Grounds 1 and 8 were appealed to the IAC. Only these grounds will be discussed in this summary.

The summary of the Full Bench matter can be read here.

Ground 1 – Full Bench

The Director General submitted that Kenner SC erred when he found that the Commission had jurisdiction to hear the application, given the exclusion set out in s 23(2a) of the Act. This exclusion is that s 23(2a), which relates to the filling of vacancy as covered by the Employment Standard, ousts the Commission’s jurisdiction to hear the matter.

Chief Commissioner Scott, with whom Commissioner Emmanuel and Commissioner Walkington agreed, held this ground was not made out, on the basis that the Commission’s jurisdiction was not excluded because the circumstances of this case did not relate to the filling of a vacancy as covered by the Employment Standard.  They noted that what was sought was, instead, the re-establishment of the employment relationship.

Scott CC found that the matter excluded by s 23(2a) relates to procedures prescribed for the filling of a vacancy. It is to be distinguished from the creation or re-establishment of the employment relationship. In effect, the Director General may employ (including re-employ) a person without filling a vacancy, that is, without appointing the person to a vacant post or position.

Scott CC found that as the Employment Standard did not apply to the Director General’s refusal to employ the teacher, s 23(2a) did not apply to exclude the jurisdiction of the Commission to deal with the matter.

Ground 1 – IAC

On appeal, the IAC found that it was not satisfied that the Full Bench erred and agreed with the reasoning of Scott CC. It emphasised that the Employment Standard applies to filling a vacancy, yet there was no vacancy to fill in the circumstances.

The IAC concluded that the claim was not limited to the assertion that the teacher be appointed to fill a particular vacancy, but more broadly that the Director General had unfairly refused to employ the teacher and should employ him.

The IAC found that the Full Bench made no error in construing s 23(2a) of the Act and did not uphold ground 1.

Ground 8 – Full Bench

Ground 8 alleged that Kenner SC erred in law in ordering the Director General to pay the teacher an amount of compensation for what he would have earned if he had remained employed, on the basis that there was no power for the Commission to make such an order absent a legal right to compensation.

The Full Bench, by majority, held that ground 8 was not made out. In dissent, Scott CC held that the Commission had no power to award compensation to the teacher.

Ground 8 – IAC

On appeal, the Director General submitted that the Commission has no power to award compensation for the unfairness of the refusal to employ a person under s 23(1) of the Act.

In its reasoning, the IAC closely considered the principle considered in the Pepler case, which is that any order made by the Commission must be sufficiently related to the jurisdictional fact enlivening the Commission’s jurisdiction, in this case, the refusal of the Director General to employ the teacher.

The IAC concluded that an order to pay compensation is sufficiently related to the refusal of the employer to employ a person if it ‘deals with’ the refusal to employ the person by ordering the employment of the person and, upon the person becoming employed, to pay the person an amount representing their loss, arising from the employer’s refusal to employ them.

The IAC noted that in Pepler’s case, the Court did not doubt the power of the Commission to order compensation incidentally to an order for employment of a worker unfairly refused employment.

The IAC found, in the circumstances of the case, there was a sufficient relationship between the compensation order and the refusal of the Director General to employ the teacher, so that the compensation order was within the Commission’s power to ‘deal with’ the relevant industrial matter: the refusal of the Director General to employ the teacher.

The IAC did not uphold ground 2.

The appeal was dismissed.

The decision can be read here.