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Eventually, the teacher’s criminal charge was discontinued, his negative notice was withdrawn and he had his registration reinstated.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

A ceremonial sitting of the Western Australian Industrial Relations Commission was convened on Thursday, 21 January 2020 to farewell Chief Commissioner Scott on her retirement. The transcript of proceedings can be viewed here.

 Farewell sitting for Chief Commissioner Scott

The Commission in Court Session has cancelled the registration of several organisations on the ground that the organisations are defunct. The organisations are:

• Seamen’s Union of Australia, West Australia Branch;
• The Printing and Allied Trades Employers’ Association of Western Australia (Union of Employers); and
• The Western Australian Branch of the Commonwealth Steamship Owners’ Association, Industrial Union of Employers (Fremantle).

The applications were brought by the Registrar of the Commission under reg 76(3) of the Industrial Relations Commission Regulations 2005 (WA).

Notice of the applications and of the hearing of the matters were published on the Commission’s website on 8 December 2020 and in the Western Australian Industrial Gazette of 23 December 2020.

The Commission in Court Session considered the evidence, including statutory declarations made by the Registrar recording information regarding contact between the Registrar and officers of the Commission with the organisations and associated organisations over a number of years. It found it was satisfied that the organisations are defunct.

The decisions can be read here:

Seamen’s Union of Australia, West Australia Branch

The Printing and Allied Trades Employers’ Association of Western Australia (Union of Employers)

The Western Australian Branch of the Commonwealth Steamship Owners’ Association, Industrial Union of Employers (Fremantle)

The Public Service Arbitrator has dismissed applications for the conversion of two fixed-term contract employees to permanency on the basis that the employees did not meet the requirements of cl 2.1(a) and cl 11 of Public Sector Commissioner’s Instruction No. 23 (CI 23).

The Public Service Arbitrator, Commissioner Emmanuel, noted that CI 23 provides the pre-conditions that must be met for conversion of employees on fixed term contracts.

The employees are research scientists and have been employed by the Director General, Department of Biodiversity, Conservation and Attractions for over seven years on a series of fixed-term contracts, with the latest both due to expire in mid-2021.

The Director General considered whether the employees were eligible to be converted to permanency under the terms of CI 23, and decided they were not eligible for two reasons:

1. the reason for the employees’ engagements on a fixed term contract is a circumstance mentioned in the relevant industrial agreement, the Public Service and Government Officers SCA General Agreement (namely, they are working on projects with finite lives), and thus the requirement in cl 2.1(a) of CI 23 was not satisfied; and
2. the external funding for the employees’ roles could not reasonably be expected to continue beyond the current funding arrangements, and thus the requirement in cl 11(b) was not satisfied.

The employees disputed the Director General’s decision that they were not eligible for conversion to permanency.

Emmanuel C found that the employees were each engaged on a fixed term contract to work on projects with a finite life that were funded only until 2023 or 2024. She found that, as the reason the employees were engaged on a fixed term contract was a circumstance mentioned in the industrial agreement, the requirement in cl 2.1(a) was not satisfied.

Emmanuel C also found that there was no proper basis to ground an expectation that external funding for the roles held by the employees will continue beyond the current funding arrangements, and as such, the requirement in cl 11(b) was not met either.

The applications were dismissed.

The decision can be read here.

Organisations are required, from time to time, to appoint persons (known as board members) to the Public Service Appeal Board (PSAB) under s 80H of the Industrial Relations Act 1979. 

Regulation 120(1) of the Industrial Relations Commission Regulations 2005 (Regulations) provides for a member of a constituent authority (such as a PSAB) to be paid such remuneration as the Chief Commissioner from time to time determines. 

In light of administration and legal implications relating to tax deductions and potential superannuation entitlements, the Chief Commissioner has reviewed the arrangement for the payment of a sitting fee for members sitting as part of a constituent authority. Part of that review has involved consultation with affected organisations.

Having considered all of the circumstances, the Chief Commissioner has determined that, effective from 5 January 2021, payment of sitting fees for all new matters will cease. However, reimbursement for out of pocket expenses incurred under reg 120(6) of the Regulations will remain available. 

S. BASTIAN

REGISTRAR

4 JANUARY 2021