The Commission made a General Order under s 50 of the Industrial Relations Act 1979 (WA), ensuring that employees required to work on special public holidays, made under the Public and Bank Holidays Act 1972 (WA), were entitled to higher rates of pay.

 The order ensures that all industrial instruments made under the Act treat special public holidays and public holidays consistently.

Background

This application sought a General Order under s 50 of the Industrial Relations Act 1979 (WA) to apply to all awards, industrial agreements, enterprise orders and employer-employee agreements made under the Act. The General Order sought was in relation to special public holidays appointed by proclamation under s 7 of the Public and Bank Holidays Act 1972 (WA).

The application arose from the proclamation made by the Governor of Western Australia under the PBH Act that 22 September 2022 would be a special public and bank holiday in this State, following the declaration of a National Day of Mourning on the passing of Her Majesty Queen Elizabeth II.  The application sought to remedy a gap in awards of the Commission, which prescribe higher rates of pay for working on a public holiday set out in the award, but makes no provision for payments for working on a special public holiday, applying throughout the State.

The application was unopposed.

Contentions

UnionsWA

UnionsWA identified discrepancies in public holiday and overtime clauses in awards issued by the Commission that do not provide higher pay rates for employees working on special public holidays.

It argued that:

1. granting the General Order would align with the objectives of the Act, promote equity and good conscience, and be in the best interests of affected employees and the community;
2. evidence was unnecessary since there were no objections, and the gap in existing awards was self-evident; and
3. granting the application would not create new entitlements but rather extend existing obligations to pay higher rates of pay for working on special public holidays.

The Minister

The Minister supported the application with some amendments and pointed out that the Farm Employees Award 1985 did not contain a clause for penalty rates on public holidays and, thus, would not be affected by the General Order.

WALGA

WALGA disseminated the application widely among its members and allowed individual submissions. None of WALGA’s members opposed the application, with some local governments already paying penalty rates for employees working on special public holidays.

Further, WALGA outlined provisions in three local government awards regarding public holidays and public holiday entitlements, highlighting inconsistencies.

Findings

The Commission was satisfied that a General Order ought to be made because such order would be consistent with the objects of the Act and with the equity, good conscience and substantial merits of the case. Further, given the relative rarity of the proclamation of special holidays under the PBH Act, the cost impact of granting the application would not be of significant magnitude to outweigh the substantial merits of the case.

The order extended the same entitlement to higher rates of pay for working on a public holiday under current terms of industrial instruments made under the Act, to those employees who are required to work on a special public holiday.

The decision can be read here.

The Commission found that it has jurisdiction to hear an employee’s denied contractual benefits claim against an employer, which is a national system employer.

 Sections 26(2)(e) and 27(2)(o) of the Fair Work Act 2009 (Cth) did not prevent a national system employee from bringing a contractual benefits claim against a national system employee under ss 23(1) and 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA).

Background

The applicant is a casual bus driver employed by the respondent, a private bus company in Southwest Western Australia. His hourly rate is $34.61 under a written contract.

The respondent holds contracts with the Public Transport Authority (PTA), including an "Evergreen Contract" for the Bunbury Stratham Capel Route (BSC Route). Under this contract, the PTA pays service fees to ensure bus drivers receive a specified "grossed up" hourly rate.

The PTA's bulletin sets the pass-through rate at $43.31 per hour for the MR Burnside Route.

To guarantee drivers receive this higher rate, the Evergreen contract (Clause 9.12) prevents contractors from profiting excessively from the additional service fees paid by the PTA.

The applicant started driving school buses on the BSC Route around July 2018. After discovering the pay rate discrepancy between his contract and the pass-through rate contained in the PTA’s Evergreen Contract Model Payments Elements, he filed a denied contractual benefits claim.

Contentions

The parties agreed that the applicant is a national system employee and the respondent is a constitutional corporation, which is a national system employer as defined in section 14 of the FW Act.  Further, they agreed that the applicant was not a party to the Evergreen contract.

The respondent contended that the applicant's claim did not pertain to a breach of existing entitlements within his employment contract. Instead, the applicant sought to alter his contract to include the higher rates from the PTA and the respondent’s contract, to which he was not a party. The respondent argued that this would necessitate the Commission making determinations regarding the fairness or legality of the applicant's contract, resembling an "unfair contracts" claim excluded by s 26(2)(e) of the FW Act.

Alternatively, the respondent claimed that the applicant aimed to enforce higher pay entitlements originating from the Evergreen contract, which was neither an employment contract nor an instrument to which the applicant was a party. The respondent contended that pursuing the enforcement of the Evergreen contract did not fall within the Commission's jurisdiction because it did not constitute a claim for the enforcement of an employment contract as defined by s 27(2)(o) of the FW Act.

The respondent argued that because the “source” of the applicant’s rights is not the applicant’s employment contract, but something outside it, the Commission did not have the jurisdiction to deal with the matter. According to the respondent, this would require the applicant to demonstrate that his claim fell under an exception to the privity rule, enabling him to enforce the Evergreen contract against the respondent to his benefit. The respondent maintained that both cases would involve claims excluded by ss 26(2)(e) and 27(2)(o) of the FW Act.

The applicant contended that under settled law, a denied contractual benefits claim under the Industrial Relations Act 1979 (WA) (IR Act) is in practicality, a claim for the enforcement of an employment contract, for which an order for damages to remedy the denial of the contractual benefit may be made.

Moreover, the applicant argued that his claim falls under a State or Territory law concerning "claims for the enforcement of contracts of employment," thereby not being excluded from the Commission's jurisdiction by the exception in s 26(2)(e) of the FW Act because of the application of ss 27(1)(d)(iii) and 27(2)(o).

The applicant asserted that the respondent's jurisdictional objection is not a novel issue and has been consistently rejected in previous cases. Contrary to the respondent's characterisation, the applicant clarified that his claim does not involve seeking to challenge the fairness of the employment contract, nor is it an attempt to enforce the Evergreen contract between the respondent and the PTA. Instead, the issue was whether he was entitled to a contractual benefit within his employment contract, specifically the minimum rates outlined in the Evergreen contract when operating buses on the BSC Route. The applicant argued that the Commission possessed jurisdiction to adjudicate and resolve this issue in a denied contractual benefit claim.

Findings

The Commission found that it does have jurisdiction to hear the claim.

This matter is not excluded by operation s 26(2)(e) of the FW Act because there is no unfair contracts law or jurisdiction in WA of the type that s 26(2)(e) is intended to exclude.

The Commission's jurisdiction to deal with industrial matters, including compelling the fulfilment of employment contract benefits, is found in common law principles, not the IR Act. The Commission's role is to identify the terms of the contract, whether explicitly stated, incorporated, or implied.

Section 27(2)(o) of the FW Act does not exclude the applicant’s claim. The applicant has made it clear that he is not seeking to enforce the Evergreen contract. Furthermore, s 27(2)(o) of the FW Act is directed at whether the law under which the claim is being made is excluded, not the content of the claim itself.  The identification of the contract upon which the applicant relies is one of the elements the applicant will have to establish at a substantive hearing of his claim.

The decision can be read here.

The Public Service Appeal Board dismissed an employee’s claim for the payment of salary during a period in which the employee was not attending work because it did not have jurisdiction.

The Public Service Appeal Board found that the employer’s decision not to grant the employee’s work from home request and subsequently not pay the employee during the period he did not attend work, but wished to work from home, was not a decision to suspend him without pay under s 82 of the Public Sector Management Act 1994 (WA).

Background

On 24 December 2021, the Chief Health Officer issued the Booster Vaccination (Restrictions on Access) Directions (No 2), which, subject to certain exceptions, restricted ‘vaccination directed persons’ from entering and remaining at certain sites if they had not complied with booster vaccination requirements on and from 12.01 am on 5 February 2022.

On 20 January 2022, the Director‑General, Department of Health issued a further direction to Department employees, requiring that they receive a booster vaccination against COVID‑19, unless they have an exemption under the Booster Directions and provide evidence.

The respondent incorporated the directions into its policies.

On 1 March 2022, the applicant received a letter referring to the 20 January 2022 direction. The applicant received a further letter on 15 March 2022 in similar terms.

On 23 March 2022, the respondent formally confirmed that the applicant was prohibited from accessing facilities in connection with his employment from 29 March 2022, on the basis that he had not complied with the directions.

In response, the applicant requested to work from home temporarily, which the respondent denied on 29 March 2022.

On 13 April 2022, the applicant was advised by letter that he had allegedly committed a breach of discipline by failing to comply with the 20 January 2022 direction to receive a booster vaccination. The letter gave him the opportunity to respond by 27 April 2022, but made no mention of the applicant’s working arrangements, suspension or payment during the disciplinary process.

On 28 April 2022, the respondent informed the applicant by letter that the discipline process will cease because the applicant contracted COVID-19 on 16 April 2022 and qualified for an exemption.

On 3 June 2022, the respondent stated in an email to the applicant that from 13 April 2022 to 28 April 2022 he had been “placed on an Access Restriction Period (ARP) and during this period, be legally unable to attend your workplace and not paid”. Further, the respondent confirmed that disciplinary proceedings commenced at the conclusion of the Access Restriction Period in accordance with their guidelines (‘no work as directed, no pay’ principle).

Contention

The applicant contends his pay was wrongly withheld from 13 April 2022 to 28 April 2022.

The applicant’s Form 8B ‑ Notice of Appeal describes the decision he is appealing as being dated 3 June 2022. He refers to an email chain concerning ‘…my request to have my leave without pay reversed as per s82(5) of the PSMA 1994’. In the section about remedies, the applicant stated that he is seeking a “reversal of the withholding of salary. Reversal of automated leave without pay”.

The respondent submitted that none of the correspondence expresses that a decision was made to suspend the applicant without pay as part of the disciplinary process or under the PSMA.

The applicant disputed the respondent’s right to withhold pay under the ‘no work as directed, no pay’ principle. Essentially, he says that it was the respondent that precluded him from working and because he was able to work remotely, he remained willing and able to work. He says the principle does not apply when an employee tenders service but is prevented by the employer from working. He says the respondent’s refusal to permit him to work remotely had this effect because its guidelines allow approval to be given for employees to work from home. He had been working from home until that point. The respondent chose to withdraw further approval.

Findings

The Appeal Board dismissed the appeal because it found that it had no jurisdiction in this matter.

The applicant did not persuade the Appeal Board that, as a matter of fact, a decision was made by the respondent to suspend him without pay under s 82 of the PSMA. This is because the applicant’s exclusion from the workplace commenced before the disciplinary process started and independently of the disciplinary process.

The applicant’s grievance, in substance, concerns the respondent’s policies and guidelines and the refusal to permit him to work remotely. However, no appeal lies under s 78 of the PSMA from any of these kinds of decisions.

The Appeal Board found that it did not need to make any findings about whether or not the respondent was legally entitled to withhold the applicant’s pay.

The decision can be read here.

The Public Service Appeal Board dismissed an employee’s application for an extension of time to appeal against her employer’s decision to terminate her because she had committed two breaches of discipline by not being vaccinated against COVID-19 or having a medical exemption.

The Public Service Appeal Board dismissed an application to accept the appeal out of time because the employer took all reasonable steps to inform the appellant of the termination decision, despite the appellant denying that she knew of the decision. Thus, there was no adequate explanation for the significant delay of 36 days.

Background

The appellant was dismissed as a Level 2 Support Office for the Department of Justice on 21 June 2022, after the Director General found that she had committed two breaches of discipline by not being at least partially vaccinated against COVID-19, or providing evidence of a medical exemption, by 5 February 2022.

The respondent notified the appellant of the disciplinary process before 18 May 2022. On 18 May 2022, the appellant emailed a temporary medical exemption to the respondent but did not respond to the allegations of breach of discipline.

On 26 May 2022, the respondent sent the appellant a letter stating that the breach of discipline allegations were substantiated and dismissal was the proposed disciplinary action. On 21 June 2022, the respondent confirmed, by letter to the appellant, that she was dismissed with immediate effect. Such emails also stated that the respondent left the appellant voice messages on her phone.

On 25 July 2022, the appellant wrote to the respondent querying her return-to-work date. On 26 July 2022, the respondent emailed the appellant stating once again, in effect, that she had been dismissed.

The time to file an appeal expired on 12 July 2022 (21 days after the decision to dismiss). Thus, the appellant filed her appeal 57 days after the respondent dismissed her, which was a delay of 36 days.

Contention

The appellant sought an extension of time to file her appeal on the ground that the Director General did not provide her with information relating to her disciplinary proceedings until 9 June 2022, and she did not know that she had been dismissed until 26 July 2022.

The respondent opposed the extension of time, particularly as the Director General made several attempts to contact the appellant about the outcome of the disciplinary proceedings.

The factors considered when determining whether an appeal should be accepted out of time include:

1. the length of the delay;
2. the reasons for the delay;
3. the prospect of the appellant succeeding in the appeal; and
4. the extent of any prejudice to the respondent.

The respondent submitted that a 36-day delay is significant where the appeal period is 21 days.

 The reasons for the delay

The appellant stated that she did not know that she had been dismissed until the respondent’s email on 26 July 2023. She stated that she had not checked her emails for a month before 25 July 2022 and had not received any letters or voice messages. 

The respondent contended that there was no reasonable explanation for the delay, on the basis that it is implausible that the appellant had not checked her emails for a month unless she was attempting to avoid receiving a dismissal letter. Further, the respondent had taken contemporaneous notes regarding the attempted phone calls and voice messages left for the appellant. Thus, the Appeal Board should accept that the telephone calls were made.

Whether the appellant has an arguable case

The appellant maintained she had an arguable case because she held a valid medical exemption before and at the time of dismissal, which meant that her dismissal was unlawful and that it was harsh or disproportionate.

The respondent submitted that the appellant did not comply with the Employee Direction, only submitting a medical exemption three months after she was required to do so, on 18 May 2022.

The extent of any prejudice to the respondent

The respondent conceded that an extension would not create any particular prejudice, beyond that experienced by any respondent.

Findings

The Appeal Board dismissed the appeal because the appellant had no good reason for the delay and the delay was significant. Thus, it was not in accordance with equity and good conscience to extend the time for appeal.

The length of the delay

The Appeal Board considered the delay significant.

The reasons for the delay

The appellant did not provide a reasonable explanation for the delay.

The respondent attempted to ensure that the appellant was aware of and received the communication. The Appeal Board found that the respondent did everything reasonably necessary to communicate with the appellant. Further, the appellant was trying to avoid communication from the respondent.

Whether the appellant has an arguable case

Although the appellant’s Notice of Appeal did not expressly contend that the dismissal was harsh or disproportionate, taking the case at its highest, the Appeal Board considered that the case may be arguable.

The decision can be read here.

An employee was entitled to two months’ notice under the employment contract, having only received one week’s notice, and the equivalent monetary value of seven weeks’ notice was awarded.

The Commission ordered an employer to pay $22,884.62 to a former employee, after finding that the employee was entitled to seven weeks’ notice under their employment contract because the termination provision did not distinguish between a trial or probation period and ongoing employment and there was no ambiguity in the contract.

Background

The applicant commenced work with the respondent on 1 November 2021 as the General Manager. On 27 October 2021, the respondent sent the applicant a letter titled ‘Contract of Employment’, by which the respondent offered the applicant employment and set out the terms of the employment contract. Relevantly, the contract stated that the employment may be terminated by the applicant or the respondent by “providing a minimum of 2 months [sic] notice”. In a different part of the letter, it also stated that the applicant’s employment contract was “subject to a trial period of 6 months”. The respondent terminated the employment contract on 8 April 2022, providing the applicant with the equivalent of one week’s notice.

Contentions

The applicant sought an order for the respondent to pay him the equivalent of a two months’ notice period, less the one week’s notice he received, being $22,884.62. The applicant contended he was entitled to such amount under the employment contract.

The respondent opposed the application, stating that the applicant was only entitled to one week’s notice, in accordance with the Fair Work Act 2009 (Cth), because the applicant’s employment was terminated during the probation period and he was on a probationary agreement.

Findings

The Commission found that the term of the employment contract concerning notice of termination provided for a minimum notice period of two months and did not distinguish between the trial or probation period and ongoing employment. There was no ambiguity surrounding the notice of termination term and therefore, the provisions of the FW Act concerning minimum notice periods were not implied into the employment contract.

As such, the applicant was entitled to the benefit of the contractual term requiring two months’ notice of termination of his employment contract.  Having already received the equivalent of one week’s pay at the time of termination, the Commission awarded the applicant the equivalent of seven weeks’ notice, being $22,884.62.

The decision can be read here.