The applicant, a Level 4 Senior Community Engagement Officer (SCEO) with the Registry of Births, Deaths and Marriages, Department of Justice, was dismissed for non-compliance with a vaccination order issued by the Director General. This order stemmed from a 2021 restructure, which incorporated travel expectations linked to Chief Health Officer (CHO) Directions related to COVID-19 vaccination. The applicant contended that her role did not inherently involve travel to remote communities, and the Employer Direction was not applicable.

The Public Service Appeal Board dismissed the application, stating that the Employer Direction was lawful, fell within the employment contract’s scope, and was reasonable. The Board emphasised that the applicant’s role necessitated attendance at schools and hospitals, requiring compliance with CHO Directions related to vaccination. Non-compliance constituted a breach of discipline. The dismissal was deemed fair, considering the significance of travel in her role, her inability to perform duties due to non-compliance, and the absence of evidence indicating unfair treatment compared to other government employees.

Despite acknowledging the impact of dismissal on the applicant, the Board concluded that the decision was not harsh, oppressive, or unjust. The findings reinforced the legality and reasonableness of the Employer Direction, aligning it with the duties outlined in the employment contract and CHO Directions. The applicant’s refusal to comply with vaccination requirements, essential for fulfilling her responsibilities, justified the disciplinary action taken by the Director General.

The decision can be read here.

The applicant demonstrated a consistent lack of commitment to advancing his claim, evidenced by his non-attendance at multiple conciliation conferences, a directions hearing, and a failure to respond to Commission communications. This behaviour obstructed the expeditious resolution of his claim and impeded the Commission’s operational efficiency. Consequently, Senior Commissioner Cosentino issued an order compelling him to show cause for not dismissing his claim.

Initially filing his claim on 14 February 2023, alleging the denial of a contractual benefit by his former employer, the applicant’s lack of engagement became apparent during the scheduled conciliation conferences. Despite agreeing to a rescheduled date of 4 April 2023, he failed to attend, did not respond to the Commission’s inquiries, and failed to comply with directives to explain his absence. Subsequently, a directions hearing was scheduled for 26 April 2023, during which the applicant participated by phone but displayed reluctance to attend in person, citing potential financial loss. Another conciliation conference was set for 15 May 2023, which the applicant failed to attend without notice or explanation.

Due to the applicant’s persistent non-engagement and failure to respond to orders, Senior Commissioner Cosentino dismissed the claim. The decision was grounded in the understanding that allowing the claim to proceed would not be in the public interest, as it would entail a wasteful allocation of resources and cause undue inconvenience to the respondent. Senior Commissioner Cosentino emphasised the importance of parties actively participating in proceedings to ensure the efficient resolution of matters and maintain public confidence in the Commission’s functions. In summary, the applicant’s lack of diligence and participation led to the dismissal of his claim based on its adverse impact on the Commission’s ability to effectively perform its functions.

The decision can be read here.

The applicant applied for an enterprise order under s 42I of the Industrial Relations Act 1979 (WA). The application was made because the respondent declined to bargain for an industrial agreement with the Trust, which was establishing a new security services business in Western Australia called Applied Security Force.

The applicant sought the enterprise order to gain flexibilities unavailable under the Security Officers’ Award. Specifically, it aimed to “flatten out” pay rates, reduce administrative burdens, and enhance competitiveness in tendering. The applicant proposed higher base rates in exchange for reduced overtime and penalty rates. However, the respondent opposed the application.

The key issue was whether the Trust qualified as an ‘employer’ when it gave notice to initiate bargaining. The definition of ‘employer’ in the Act was central to this dispute. The applicant argued that having written employment contracts and employing Mr Kourtesis satisfied the definition, while the respondent contended that active engagement of employees in substantive work was essential.

Senior Commissioner Cosentino ultimately decided not to issue an enterprise order. The decision rested on the finding that the Trust was not an ‘employer’ at the relevant time. The evidence did not establish that the Trust had employed Mr Kourtesis, and the employment contracts lacked clarity, creating uncertainty and incompleteness.

Furthermore, Senior Commissioner Cosentino assessed the Trust’s interests and needs for the enterprise order. The Trust’s justifications related to flexibility, confidence in forecasting labour costs, and competition were found to be inadequately supported. There was no evidence that the proposed order would improve productivity or efficiency. Senior Commissioner Cosentino also considered the interests of employees, finding that the proposed order did not guarantee better take-home pay, lacked transparency, and did not provide fair compensation for unsociable hours.

In summary, Senior Commissioner Cosentino dismissed the application for an enterprise order, emphasising the applicant’s failure to meet the statutory criteria and insufficient evidence supporting its claims.

The decision can be read here.

The applicant sought a declaration under s 46 of the Industrial Relations Act 1979 (WA) regarding the interpretation of specific clauses in two agreements: Clause 13.5 of the Education Assistants’ (Government) General Agreement 2023 and Clause 52.4 of the Government Services (Miscellaneous) General Agreement 2023. These clauses outlined casual long service leave entitlements, stipulating 13 weeks' paid leave after 10 years of continuous service, with an additional 13 weeks for each subsequent period of continuous service.

The applicant contended that ‘continuous service’ should be interpreted based on its common-sense, plain English meaning. The respondent argued that it referred only to qualifying service since the registration of the industrial agreement contained the casual Long Service Leave clause.

Senior Commissioner Cosentino found no ambiguity in the references to ‘continuous service’ in either clause. Senior Commissioner Cosentino held that the phrase in the Education Assistants Agreement was not ambiguous and could not have the meaning argued by the respondent.

Senior Commissioner Cosentino issued directions clarifying the interpretation of ‘continuous service’ in the agreements. For the Education Assistants Agreement, Senior Commissioner Cosentino ruled that ‘continuous service’ in Clause 13.5 referred to continuous service under Clause 54 of the Education Assistants' (Government) General Agreement 2023. Regarding the Government Services Agreement, Senior Commissioner Cosentino determined that ‘continuous service’ in Clause 52.4 meant an unbroken period of service with the employer, incorporating specific periods outlined in the agreement, but excluding others.

The decision can be read here.

Under the Industrial Relations Act 1979 (WA), the claimant alleged that the respondent breached entitlement provisions of various industrial agreements applicable to union member Mr Corr during his employment. The alleged contraventions relate to the payment of a 20% loading for night shift and additional annual leave entitlements for continuous shift workers.

Magistrate O’Donnell concluded that the claim should be dismissed for several reasons. Firstly, Magistrate O’Donnell addressed the respondent's ability to be sued, establishing that the North Metropolitan Health Service (NMHS) is a relevant successor to the Metropolitan Health Services Board, and thus the entire claim is properly brought.

In relation to the Night Shift Penalty Contravention, Magistrate O’Donnell examined Mr Corr’s work arrangement and working hours, ultimately determining that his schedule did not constitute night shifts as defined in the agreements. Magistrate O’Donnell emphasised that Mr Corr’s long-standing work pattern, which began with the 1990 Agreement, was informal and not governed by rosters, leading to the dismissal of the claim for the Night Shift Penalty Contravention.

Similarly, regarding the Annual Leave Contravention, Magistrate O’Donnell found that Mr Corr did not meet the criteria for being considered a "continuous shift worker" as defined in the agreements, and therefore, the claim for additional annual leave was dismissed.

Magistrate O’Donnell also discussed the doctrine of estoppel, concluding that had the claim been valid, the claimant would have been estopped from 15 December 2017 onwards due to representations made during a meeting and subsequent silence, which induced the respondent to maintain the status quo.

In summary, Magistrate O’Donnell dismissed the entire claim, ruling that Mr Corr was not entitled to the alleged contraventions of night shift penalties and additional annual leave and that the doctrine of estoppel would apply if the claim had been valid.

The decision can be read here.