The Commission has dismissed an application which contended that The Australian Nursing Federation, Industrial Union of Workers Perth (ANFIUWP) breached its Union rules by failing to comply with its Objects.

The applicant said that she was a member of the ANFIUWP and that it did not:

• promote and protect her interests as a member regarding the Enterprise Bargaining Agreement (EBA) with her employer, St John of God in 2018;
• represent her industrial interests with her employer; and
• improve her conditions of employment after numerous complaints to it about work issues, in accordance with the EBA.

The applicant sought a declaration that the ANFIUWP breached r 3 – Objects of its Rules and that the Chief Commissioner investigate why the alleged breaches had been allowed to continue and that her complaints were not dealt with by the union.

The ANFIUWP said that it is a State organisation registered under the Industrial Relations Act 1979 (WA) (IR Act), and that it is jurisdictionally barred from representing the applicant as she and her employer are a national system employee and employer. The ANFIUWP also denied breaching r 3 – Objects of its Rules because the rule is aspirational and not able to be breached.

Chief Commissioner Scott reinforced the separate and distinct identities between State registered organisations and federal organisations with state branches. Scott CC found that applications made under the IR Act, like in the present case, can only be made against a State registered organisation and not the state branch of a federal organisation.

On the limited material before her, Scott CC found that as the applicant was employed by a national system employer and the industrial instrument that covered her employer was an enterprise agreement made pursuant to the Fair Work Act 2009 (Cth), her industrial interests would be covered by the Australian Nurses and Midwifery Federation, a federal organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth), rather than the State registered organisation to which her claim related.

The application was dismissed for lack of jurisdiction.

The decision can be read here.

The Industrial Magistrate has upheld a claim for four weeks’ pay in lieu of notice of termination, untaken paid annual leave, ordinary wages and superannuation by a full-time electrical installer, totalling over $16,000.  

The claimant was employed by the respondent as a full-time installer.

The claimant alleged that the respondent failed to comply with the Electrical, Electronic and Communication Contracting Award 2010 and the Fair Work Act 2009 (Cth) by:

• failing to pay him 4 weeks’ pay in lieu of notice of termination of employment;
• using his accrued annual leave entitlements to pay his ordinary wages without approval (and thus failing to pay untaken paid accrued annual leave upon termination of employment);
• failing to pay him all ordinary wages owed; and
• failing to pay an amount of superannuation for the pay in lieu of notice and ordinary wages owed.

The respondent denied the claims.

Pay in lieu of notice of termination of employment

Industrial Magistrate Scaddan found that the respondent did not give the claimant a written notice of termination of employment and failed to pay him 4 weeks’ pay in lieu of notice.

Ordinary wages and annual leave

Her Honour found, on the evidence, that the respondent was not entitled to withhold payment of the claimant’s ordinary wages on the days the claimant ‘offered’ to take leave without pay. This resulted in an underpayment of $2,416.53.

The claimant also argued that from June 2019 until August 2019, the respondent, without his permission, used his accrued annual leave entitlements to pay his ordinary wages when the company was experiencing a downturn in business.

The respondent contended that it had the claimant’s consent to pay out his accrued annual leave entitlements on a weekly basis.

Scaddan IM found that the company was not entitled to pay or cash out the claimant’s accrued annual leave entitlements where any alleged oral agreement between the parties did not, and could not, comply with the Award. Her Honour found that a total of $7,377 in untaken paid annual leave was to be paid to the claimant.

Superannuation

Her Honour also found that $807.60 was required to be paid by the company to a superannuation fund for the benefit of the claimant.

The decision can be read here.

The Industrial Magistrate has dismissed a claim for redundancy pay by a national system employee on the basis that the respondent was a ‘small business employer’ within the meaning of the Fair Work Act 2009 (Cth) (FW Act) and was excluded from paying the employee redundancy pay.

Under the FW Act, a ‘small business employer’ employs fewer than 15 employees and is excluded from having to pay redundancy pay to an employee. The FW Act also states that any casual employee is not to be counted as an employee unless they are employed on a ‘regular and systematic’ basis.  

The claimant contended that the respondent employed 19 employees at the time she was given written notice of termination of employment and was therefore entitled to redundancy pay of seven weeks at the base rate of pay.

The claimant argued that on top of the 12 employees included in the respondent’s count for the purposes of determining whether it was a ‘small business employer’, another five casual employees and two shareholders should also be included in the count.

Industrial Magistrate Scaddan found, on the evidence, that the other five casual employees were not employed on a ‘regular and systematic’ basis. Scaddan IM also found that there was no contract of employment between the two shareholders and the respondent, and her Honour was not satisfied that they were employees.

Scaddan IM found that, as the respondent only employed 12 employees at the time of the claimant’s termination of employment, it was a ‘small business employer’ and was excluded from paying the claimant redundancy pay.

The claim was dismissed.

The decision can be read here.

The Full Bench has unanimously dismissed an application for leave to file an appeal out of time and for new or fresh evidence to be received.

At first instance

The appellant was employed as a teacher. In 2015, the respondent, the Director-General of the Department of Education, found that the appellant had disobeyed a lawful direction given by the school Principal to not alter his classroom without consulting his line manager and imposed a penalty on him.

Commissioner Emmanuel found that where there was a conflict between the evidence of the Principal and the appellant, she preferred the evidence of the Principal. She also found that it was reasonable and well within the Principal’s rights to direct the appellant not to alter the classroom.

Emmanuel C concluded that, contrary to the appellant’s arguments about the interpretation of the direction and his actions, he disobeyed the lawful order.

The application was dismissed on 19 June 2017.

The decision at first instance can be read here.

Appeal to Full Bench

The appellant said that as a result of a Freedom of Information request, he received documents in 2019 that he did not know existed. His grounds of appeal included that Emmanuel C:

• Erred in law and or fact by finding that his conduct constituted misconduct because she was unaware of fresh evidence that has emerged; and
• Erred in law and or fact in finding that the respondent’s witness, the school Principal, was a credible witness because she was unaware of false statements made by the Principal in respect to an issue that could now be disproven on the basis of fresh evidence that had emerged.

The Full Bench noted that whilst the appellant made submissions about the circumstances relating to the application to file the appeal out of time and to receive fresh evidence, he did not support them with evidence.

The Full Bench found that the length of the delay, which was more than three years, was an inordinate delay. It also noted that there was a lengthy delay in lodging the appeal after the information was discovered.

The Full Bench also found that there was no evidence about why the appellant took a year to utilise fresh evidence and discover their purported significance. It also determined that there was no basis for the argument that if the Principal were wrong, the outcome would be different. The Full Bench found that the findings made by Emmanuel C were correct and that even if the direction was lawful but based on erroneous information, it did not alter the fact that the appellant was obliged to comply but did not.

The Full Bench concluded that, even if the evidence were fresh evidence, its receipt would not change the result. It found that the basis for the appeal was completely undermined.

The Full Bench dismissed the applications to receive new evidence and for the appeal to be received out of time.

The decision can be read here.

The Commission has dismissed an unfair dismissal claim on the basis that it found that a teacher had been negligent in failing to ensure that a student in his class was enrolled in a course and failing to deliver instruction to that student.

The applicant, a computer teacher at a high school, accepted that he did not ensure that the student was enrolled in the course and that he had failed to teach him from February to June 2017. However, the teacher argued that:

• at least part of the period when the student was not enrolled was not his fault, or could not have been avoided by him, because the school changed the registered training organisation which ran the course;
• not allowing students to do private study in his class was “unworkable and totally unjustified” as other teachers were allowed to simply supervise students in their classes while they did “private study”;
• he had been treated unfairly because the principal of the school was biased against him; and
• the applicant had been left to “carry the can” when others had a role in the failure to enrol and teach the student in question.

Commissioner Matthews found that, while the principal and other heads of learning should have examined the deficiencies and addressed the situation, some of the arguments were unsubstantiated and none of them could excuse a failure or diminish the negligence of the teacher to ensure the student was enrolled by mid-year and to teach him.

The application was dismissed.

The decision can be read here.