The Industrial Appeal Court dismissed a prison officer’s appeal against the decision of the majority of the Commission for want of jurisdiction.

The majority of the Commission dismissed the prison officer’s appeal against his employer’s removal action on the ground that was harsh, oppressive or unfair. This decision did not enliven the Industrial Appeal Court’s jurisdiction to hear an appeal of a decision from the Commission, under s 110E of the Prisons Act 1981 (WA), that removal action was harsh, oppressive or unfair.

Background

The appellant was a prison officer, employed by the respondent under s 13(2) of the Prisons Act, from April 2000 until July 2021. The appellant was dismissed after testing positive for cannabis, during a random drug test at Hakea Prison on 11 August 2020.

The appellant appealed to the Commission pursuant to s 106(1) of the Prisons Act, on the ground that the removal decision was harsh, oppressive or unfair.

On 6 May 2022, the Commission, by majority, comprising Chief Commissioner Kenner and Commissioner Emmanuel, dismissed the appeal. Senior Commissioner Cosentino delivered separate reasons, in which she found that the removal decision was unfair.

Contention

The appellant appealed to the Industrial Appeal Court on the ground that the majority of the Commission erred in law:

1. in deciding that the true meaning of reg 38(2) of the Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 (WA) had the effect of requiring the respondent to take removal action; and
2. by concluding that s 107(1)(a) of the Prisons Act does not require the Commission to consider all of the reasons for the removal decision.

The appellant contended that, in the circumstances of this case, where one of the Commission members who heard the appeal has decided that the decision to take removal action relating to the appellant was harsh, oppressive or unfair, s 110E is enlivened, which in turn enlivens the jurisdiction of the Court to hear an appeal under s 90 of the Industrial Relations Act.

The respondent filed a notice of motion seeking an order that the appeal be dismissed for want of jurisdiction. This was contended on the basis that the Court does not have jurisdiction to hear an appeal from a decision of the Commission under s 110B of the Prisons Act read with s 90 of the Industrial Relations Act on the ground that the majority of the Commission erred in deciding that the removal decision was not harsh, oppressive or unfair.

Findings

The Court dismissed the appeal for want of jurisdiction.

The Court only has jurisdiction to hear an appeal if the Commission has made a 'decision', under s 110E of the Prisons Act, that the removal decision was harsh, oppressive or unfair.

However, no appeal can lie against 'reasons for decision' of the Commission or a member of the Commission given in any proceeding. Section 35(1) of the Industrial Relations Act distinguishes a decision from reasons for decision.

The reasons for decision of the Senior Commissioner do not constitute a decision within the meaning of s 35 or s 90(1), as modified, of the Industrial Relations Act.  Absent a decision that reflects the Senior Commissioner's reasons, the appellant's right of an appeal to this Court is not enlivened.

The decision can be read here.

Improvement notice issued by Worksafe Western Australia, and the subsequent decision of the WorkSafe Commissioner affirming the notice, revoked and ceased to have effect.

The Tribunal revoked an improvement notice issued to the applicant by the respondent for breaching s 19(1) of the Occupational Safety and Health Act 1984, requiring the applicant to implement the use of body-worn cameras, because the applicant provided information, demonstrating that extensive measures were being taken to control the risk identified in the notice and the respondent supported the revocation.

Background

The respondent issued an improvement notice to the applicant because a WorkSafe Inspector formed the opinion that the applicant’s security and emergency department staff were exposed to the risk of occupational violence and aggression, breaching s 19(1) of the OSH Act. The respondent directed that the applicant requires individuals or staff to wear body-worn cameras to reduce the identified risk.

The applicant applied to the WorkSafe Commissioner for a review of the improvement notice, which the WorkSafe Commissioner subsequently affirmed.

The applicant then applied to the Occupation Safety and Health Tribunal for a review of the WorkSafe Commissioner’s decision.

Contentions

The applicant contended that it had not breached s 19(1) of the OSH Act. The applicant submitted information about the controls, policies, and operating procedures in place to ensure safety and mitigate risk against occupational violence and aggression within the Emergency Department. Such measures comprise five pillars: training, communication and management, engineering controls, the security personnel presence and the use of the security personnel within the Emergency Department, and CCTV coverage.

Further, the applicant contended that the introduction of body-worn cameras is not an effective control measure of the risk identified by the improvement notice. Instead, body-worn cameras have insufficient evidence relating to their effectiveness as a control measure, would be a speculative trial control measure and would introduce additional risks, such as privacy issues.

Thus, it is not appropriate nor necessary to introduce body-worn cameras, the applicant contended.

The respondent contended that the improvement notice itself addressed the entirety of the control measures and the safety practices at the applicant’s site and identified a number of key issues other than the use of body-worn cameras. However, the respondent submitted that, based on the evidence that the applicant provided to the Tribunal, it supports the revocation of the improvement notice.

Findings

The Tribunal revoked the decision of the WorkSafe Commissioner and improvement notice, with both ceasing to have effect. This decision was based on the applicant’s evidence and the respondent’s submission.

The decision can be read here.

The maximum salary level for lodging certain claims has been increased. As of 1 July 2023, an employee whose contract of employment provides for a salary greater than $187,800.00 cannot have the Commission decide whether they have been unfairly dismissed or have been denied a benefit to which they are entitled under their contract of employment.

The previous maximum salary level was $181,400.00.

Please see our Resources page for more information.

The Gate, Fence and Frames Manufacturing Award varied in line with the 2022 State Wage Case Statement of Principles, resulting a number of allowances being increased.

The Commission granted an application to vary the Gate, Fence and Frames Manufacturing Award because the proposed variation methodology and calculations, provided by the applicant, were consistent with the 2022 State Wage Case Statement of Principles and not inconsistent with the award itself.

Background

The applicant applied to vary the Award in order to:

1. increase a number of allowances in the Award; and
2. substitute a new Schedule of Respondents to remove the two named respondents.

Application details

The applicant sought to vary the allowances Clause 14 ‑ Special Rates & Provisions and the First Schedule ‑ Wages: Leading Hands and Tool Allowance by 4.75%. This variation was in line with the $40.90 per week increase for classifications at and below C10 in the 2022 State Wage Case.

Additionally, the applicant sought to vary Clause 7 ‑ Meal Allowance and Clause 20 ‑ Distant Work Allowance in line with CPI changes from June 2021 to September 2022.

Finally, the applicant sought to vary Clause 19 ‑ Travel Allowances in accordance with the rates contained in the Building and Construction General On-site Award 2020 on the basis of the nexus between it and the Award.

The application for the variations was unopposed.

The applicant did not press its application to add other respondents to the Schedule of Respondents, in light of the fact that the addition of new parties may have the effect of extending the scope on a common rule basis.

Findings

The Commission granted the application to vary the Award only in respect of the variations to the allowances but held that no variation will be made to the Schedule of Respondents at this time.

The methodology and calculations supporting the variations, which were submitted by the applicant, showed that the variations are consistent with the 2022 State Wage Case Statement of Principles. The Award did not itself specify a method for adjusting allowances which is at odds with the proposed methodology and calculations.

The decision can be read here.

Employee’s termination by employer found unfair because it was not a genuine redundancy and compensation awarded.

The Commission has awarded $39,750.95 as compensation to an employee, following her employer’s decision to terminate her employment. The Commission found the termination was not a genuine redundancy because the employee’s role continued to exist after her termination and another person was employed in the role, undertaking the same duties.

Background

The applicant commenced work with the respondent in March 2020, under an ongoing contract as a Coordinator.

On 26 February 2021, the applicant was informed that her position was no longer required due to a change in circumstances and her employment was terminated effective the same day.

Contentions

The applicant contended her termination was unfair because it was not a genuine redundancy.

A previous employee of the respondent gave evidence in the applicant’s case. This employee held the Coordinator role prior to the applicant, from 2018 to 2020. He gave evidence that the respondent contacted him in December 2020 to inform him that it wished to engage him once again. He recommenced employment with the respondent in the position of Coordinator, deposing that his duties were the same as those he undertook on the first engagement in this role and were the same as the applicant’s duties.

The employer stated that the applicant’s termination was not unfair because the applicant was made redundant as the applicant’s position was no longer required.

Findings

The Commission found that the termination of the applicant's employment was not a genuine redundancy because the applicant’s role continued to exist and had not been changed or been modified in any way, and the respondent engaged another person to undertake the role immediately after terminating the applicant’s employment.

The Commission noted that, on the evidence, it was not practicable to reinstate the applicant. The Commission found the applicant had suffered loss because of the unfair dismissal and should be awarded the sum she would have earned had her employment continued. The Commission awarded the applicant $39,750.95, being the maximum amount available under s 23A(8) of the Industrial Relations Act 1979.

The decision can be read here.