Details  Created: 02 September 2020

The Full Bench has unanimously dismissed an appeal and upheld a decision of the Commission relating to an application for a review of a decision of the Construction Industry Long Service Leave Payments Board (the Board) that required the appellant to register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act).

At first instance

The appellant, who provides maintenance services under contract at established operational locations such as mines and processing plants, argued that it should not be obligated to register as an employer with the Board because they do not engage employees in the “construction industry”.

The principal issue raised in the proceedings at first instance was whether the appellant’s employees, who perform work on its clients’ premises, do so “on a site” for the purposes of the definition of “construction industry” in s 3(1) of the Act.

Chief Commissioner Scott concluded that the work performed by the appellant’s employees was performed “on a site” within the definition of “construction industry”. Scott CC rejected the appellant’s principal contention that “on a site” and “on site”, where used in the Act, means a “building site” or a “construction site”. She held that on its proper construction, the words “on a site” means the site at which the activities in the first part of the definition (e.g. construction, erection, installation) are performed on the buildings, works, roads etc. that follow in sub pars (i) to (vxiii).

The application to review was dismissed.

The decision at first instance can be read here.

Appeal to Full Bench

Ten grounds of appeal were made by the appellant on its appeal to the Full Bench. The grounds were all dealt with by Senior Commissioner Kenner in his decision, and whose findings were agreed with by Commissioner Matthews and Commissioner Walkington.

The appeal grounds related to several contentions that Scott CC erred in law in failing to have regard to the rules of statutory construction in the interpretation of several expressions, including “site”, “construction”, “maintenance of and repairs to” and “construction industry”.

The appellant further argued that Scott CC failed to properly apply and follow the decision in Aust-Amec Pty Ltd t/a Metlabs & SRC Laboratories and Others v Construction Industry Long Service Leave Payments Board (1995) WASC 718. It also contended that Scott CC failed to have regard to the mischief sought to be addressed by the Act.

The main grounds of appeal dealt the meaning of “site”. The appellant argued that Scott CC erred in law in failing to find that the term “on a site” or “site”, when used in the definition of “construction industry” in s 3(1), means a “construction site” or a “building site”.

The appellant contended that having regard to the legislative text, history and purpose, and the mischief sought to be addressed by the Act, the appellant’s submission as to the meaning of “site” being a “construction site” is a more natural constraint on the language used.

The Full Bench considered the legislative history, the rules of statutory interpretation, the process undertaken by Scott CC in reaching her conclusion as to the meaning of “site” and applied relevant legal principle and case law to the facts.

The Full Bench found that no error had been demonstrated in terms of the conclusion reached by Scott CC. It found that Scott CC had regard to the context and purpose of the Act, and correctly concluded that the statutory text must prevail in the case of any inconsistency.

The appeal was dismissed.

The decision can be read here.

Decision issued 2 September 2020

 An applicant in an unfair dismissal claim had entered into a deed of settlement regarding her workers’ compensation claim. The employer at the hearing at first instance said that the deed she entered into at the workers’ compensation conference barred her from bringing an unfair dismissal claim.

The Full Bench has upheld an appeal against the decision of the Commission at first instance ordering that the legal representative of the employee produce to the Commission any notes, not subject to privilege, taken by them at the employee’s workers’ compensation conciliation conference at which the agreement the subject of the deed was reached.

At first instance

At a preliminary hearing in relation to jurisdiction, the employee claimed that she was “forced into resigning” in such a way as to make the ending of her employment a “constructive dismissal”. The Department of Education argued that the resignation was ‘voluntary’ and was part of the settlement of her workers’ compensation claim.

The Department sought, by way of summons directed to the employee’s legal representative for the workers’ compensation matter, documents relating to the workers’ compensation matter. 

The Department argued that the employee, in the furtherance of her case, deployed each of the documents sought and, accordingly, should be taken to have waived legal professional privilege.

Matthews C found that, while any note from the conference that is subject to privilege was not required to be provided, the employee had not impliedly waived privilege in respect of the documents (3) and (4) of the summons.

Matthews C determined that the employee’s state of mind insofar as it was created or influenced by the Department was the relevant factor to determine the issue of ‘constructive dismissal’, not how her state of mind was affected by any advice she did, or did not, receive from her advisors.

The Commission ordered that the legal representative produce to the Commission any notes, not subject to privilege, taken by them at the employee’s workers’ compensation conference.

Appeal to Full Bench

The Full Bench unanimously found that, in accordance with s 49(2a), the appeal is against a ‘finding’ and that the matter is of such importance that in the public interest an appeal should lie.

The Department argued that Matthews C erred in finding that the employee had not impliedly waived privilege over documents within items (3) and (4).

Chief Commissioner Scott and Senior Commissioner Kenner noted that while Matthews C concluded that the employee had not relied on advice, other parts of her evidence indicated otherwise. The majority found that she had given express evidence that she received and acted on her legal representative’s advice, and that she had other things affecting her state of mind other than the effect of the Department’s actions.

The majority found that the employee had impliedly waived privilege by disclosing communications with her lawyers in answers to questions asked by the Commissioner at first instance. They concluded that the employee had received advice from her legal representative, and that her evidence and submissions were inconsistent with her maintaining the privilege to which she was otherwise entitled.

The majority upheld the appeal.

Commissioner Emmanuel (dissenting) found that Matthews C was correct to find that the employee did not impliedly waive privilege over certain documents. Emmanuel C determined that on the evidence, she could not find that the employee’s statements put privileged communications in issue and found that no confidential communications were disclosed in relation to advice received by the employee’s representative.

The decision can be read here.

Details  Created: 18 August 2020

The Commission has upheld a claim for a denied contractual benefit by an operations manager who said that he was denied an annual bonus to which he was entitled to under his contract of employment.

The applicant was employed in April 2019 under a written contract of employment, which provided for an annual bonus of $15,000 on achievement of key performance indicators.

The applicant said that he undertook a performance appraisal with the general manager in March 2020 and testified that he met all the key performance indicators.

On 11 May 2020, the applicant received a letter informing him that his position was to be made redundant. Senior Commissioner Kenner noted that the letter referred to payments upon his departure, including an “annual bonus $15,000”.

However, on 18 May 2020, the applicant received another letter referring to the termination of his employment to be effective on 27 May 2020. This letter referred to what was described as a “discretionary bonus payment”.

The respondent argued that the bonus was only payable on the combination of the achievement of personal key performance indicators and the key performance indicators of the respondent’s business as a whole.

Kenner SC found that the bonus entitlement set out in the contract was plain and clear, and that on a proper construction of the applicant’s contract of employment, he was entitled to a $15,000 annual bonus on the satisfaction of key performance indicators given to him at the commencement of his employment.

The claim was upheld, and the respondent was ordered to pay the applicant the annual bonus of $15,000.

The decision can be read here.

Details  Created: 06 August 2020

The Full Bench has unanimously dismissed an appeal against a decision of the Industrial Magistrates Court (IMC) exercising jurisdiction under the Fair Work Act 2009 (Cth) (FW Act). It found that it had no power to review a decision of the IMC exercising such jurisdiction.  

The appellant’s claims before the IMC sought to enforce entitlements alleged to arise from an award issued under the FW Act and entitlements under the National Employment Standards. He also suggested that one of the matters he pursued related to an employer-employee agreement and therefore fell under the Industrial Relations Act 1979 (WA).

The appellant claimed that the Industrial Magistrate denied him a fair hearing.

Although the appellant recognised that the Full Bench had no jurisdiction to deal with the substance of his claim under the FW Act, he argued that the Full Bench has the characteristics of a court and therefore can deal with his appeal as it relates to procedural fairness.

The Full Bench found that it does not have the power to review a decision of the IMC exercising jurisdiction under the FW Act, whether for the purpose of examining whether procedural fairness applied or for any other purpose.

The appeal was dismissed for want of jurisdiction.

Costs

The respondent sought costs on the basis that the appeal was frivolously and vexatiously instituted when the Full Bench had no jurisdiction to deal with it.

The respondent said it had alerted the appellant to the Full Bench’s lack of jurisdiction, pointed him to the Federal Court of Australia and invited him to discontinue the proceedings.

The appellant submitted there was no option for him to withdraw the application and there was no way out without a Full Bench decision.

The Full Bench found that there was nothing to prevent the appellant from seeking leave of the Full Bench to discontinue the hearing or withdraw the appeal. It noted that it is not in the interest of the parties, the Commission, or the public for matters to proceed to their conclusion merely because it had been commenced.

However, the Full Bench found that there was no suggestion that the appeal was instituted frivolously or vexatiously by the appellant. It considered the difficulty of lay persons to navigate through a less than straightforward appeal process, from a State court to a Commonwealth one.

The application for costs was dismissed.

The decision can be read here.

Details  Created: 30 July 2020

The Industrial Magistrate has dismissed a claim for pay in lieu of notice and other entitlements under the Electorate Officers Award 1986 (WA) (Award) and the Electorate and Research Employees CSA General Agreement 2019 (WA) (Agreement) after finding that, on the proper construction, cl 8(2)(b)(iv) of the Award had no operation to the claimant’s employment.

The claimant, an Electorate Officer, alleged that she was ‘constructively dismissed’ when she resigned from her employment in December 2019. She alleged that upon the expiration of her contract, she was entitled to benefits under the Award and the Agreement.

The claimant argued that the irretrievable break down of her working relationship with a Member of Legislative Council is a circumstance covered by cl 8(2)(b)(iv) of the Award because her ‘constructive dismissal’ occurred through no fault of her own and her employment was ‘deemed’ to have expired.

The respondent denied the claim and argued that cl 8(2)(b)(iv) of the Award had no operation to the claimant’s employment. The respondent lodged an application seeking summary dismissal on the ground that the claim had no real prospect of success.

The respondent also sought costs of the proceedings on the ground that the claim was frivolously or vexatiously instituted.

Consideration

Industrial Magistrate Scaddan noted that cl 8(2) of the Award concerns the expiration of an employee’s contract of employment, having regard to the unique position held by Members of Parliament.

Scaddan IM noted that there are four instances where an employee’s contract will be deemed to have terminated through no fault of the employee’s. Three instances relate to the office held by the Member, with the fourth instance providing for ‘other [unspecified] circumstances as agreed between the employer and the Union’: cl 8(2)(b)(iv) of the Award.

Scaddan IM found that, having regard to the ordinary meaning of the words, unless there is an agreement between the respondent (as employer) and the Civil Services Association of WA Inc. (as Union) as to what ‘other circumstance’ applies, cl 8(2)(b)(iv) has no operation relevant to an employee’s termination.

Scaddan IM found that as the claim for benefits relied upon the application of cl 8(2)(b)(iv) of the Award, and no agreement existed between the respondent and the Union regarding the deemed expiration of the claimant’s employment, the claim ought to be dismissed.

Her Honour also granted the respondent’s applicant for summary judgment but dismissed the respondent’s claim for costs. Scaddan IM found that while the claim was arguably misguided and misconceived, it does not of itself lead to a conclusion that it was frivolously or vexatiously instituted.

The decision can be read here.