The Commission has dismissed an application from an employee made 72 days out of time, finding that the applicant failed to act promptly in filing the application and did not provide a reasonable explanation for doing so. 

Background

The applicant was engaged as an independent contractor by a not for profit. The applicant initially brought an unfair dismissal claim with the Fair Work Commission (FWC), within the 21-day time limit under the Fair Work Act 2009 (Cth). On 29 April 2021, the respondent advised the applicant in its submissions to the FWC that it believed it was not a national system employer. 

The applicant commenced an unfair dismissal claim in the Commission on 2 June 2021. The Commission’s Registry attempted to contact the applicant regarding deficiencies in the application, but did not receive a response until 10 June 2021, on which day the application was formally filed. 

Contentions 

The applicant contended that she had a lack of familiarity with the State system of employment law and the application should be accepted and heard out of time. The respondent contended that it notified the applicant at the earliest opportunity about the issue of jurisdiction, and further, that the claim had no merits as the applicant was a contractor and not an employee. 

Findings 

Commissioner Walkington accepted that an error of jurisdiction may occur in cases as the current, where the identity of the employer is not clear. The Commissioner found, however, that once the applicant decided that her claim was not in the correct jurisdiction, she should have acted promptly on this information, particularly where the applicant had not provided any other explanation for the delay. 

Further, the learned Commissioner, in looking to the merits of the claim, found that the relationship was one of an independent contractor and principal, and that the claim of unfair dismissal could not succeed. The application was dismissed. 

The decision can be read here.

The Commission has found that an employee was not entitled to overtime payments for time spent on an employer provided bus commuting to a work site. The Commission found that while the employee was compelled to take the bus, the employee was not performing work at this time under the terms of the contract of employment. 

Background 

The applicant was employed as an electrician by the respondent. The respondent held a contract with Albermarle Lithium, providing workers for a plant in Kemerton. Albermarle established a transport depot in a carpark 12 kms, or 20 minutes, from the plant. The plant was only accessible by bus from this carpark, and contractors, including the respondent, would transport workers by bus to the plant. As such, the applicant, and other workers, were compelled to commute to the plant in this manner each day. 

The applicant contended that he had a contractual entitlement to overtime pay and a site allowance for the time spent on the bus, and brought a claim under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA). 

Contentions 

The applicant contended that the words ‘work performed’ in the clause of the employment contract referring to overtime payments, should be read broadly to refer to work performed whenever an employee is attending at a place and time as required by the employer. In the alternative, the applicant contended that if this is not the correct construction of the employment contract, that he was entitled to be remunerated for the time spent on the bus and at the plant, prior to commencing, on the grounds of unjust enrichment. 

The respondent contended that the words ‘work performed’ were limited to refer to the time when the employee was engaged in their trade discipline, and that this was supported by looking to the text, context, and purpose of the clauses within the employment contract. 

Findings 

Senior Commissioner Cosentino noted that while relevant authorities pertaining to the meaning of the phrase ‘work’ provided guidance, that whether the bus ride constituted ‘work’, would depend on the construction of the employment contract and facts of the case, citing Seo v Bindaree Food Group and Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470. 

The Senior Commissioner noted that the employment contract referred to work as starting and finishing at the work site, being the location ‘where he performs operational and productive work involving the application of trade skills, and functions associated with the application of trade skills.’  As such, reference to ‘work performed’ in the overtime clause, would similarly refer to activities including skills of the trade, productive work, or associated functions. 

The Senior Commissioner found that the applicant was not entitled to overtime payments for the time spent on the bus. While he was directed to attend the carpark and be transported by bus, he was able to engage in entirely private activities while on the bus, and that he was not performing duties associated with his trade or job functions at that time. 

The Senior Commissioner further concluded that it was not within the Commission’s jurisdiction in a claim for denied contractual benefits under s 29(1)(b)(ii) of the Act, to determine an alternative claim for unjust enrichment. 

The application was dismissed.
The decision can be read here.

The Commission in Court Session has handed down its decision in the 2022 State Wage Case.

The Commission has increased the State Minimum Wage by $40.90 per week, which brings the State Minimum Wage to $819.90 per week from 1 July 2022.  The Commission also increased award rates up to the C10 classification rate by $40.90 per week, and increased rates of pay for award classifications at the C10 classification and above by 4.65%.

The Commission’s reasons for decision and minutes of proposed order were handed down at 3:30pm, Thursday 23 June 2022

The Commission’s statement in relation to its decision can be read here. 

A full copy of the Commission’s Reasons for Decision can be read here.

The Commission has found it had no jurisdiction to hear an appeal by a prison officer against removal action, finding that the officer was instead discharged under a separate statutory scheme.

Background

The appellant was engaged as a probationary prison officer and posted to the Hakea Prison.  During the appellant’s nine-month probationary period, the appellant was discharged from her position by the operation of reg 5(4) Prisons Regulations 1982 (Regulations), due to an improper and unprofessional association with a prisoner.

The appellant previously commenced an unfair dismissal claim in the Commission, however discontinued that application following conciliation. The appellant then brought a claim under Division 3 of Part X of the Prisons Act 1981 (WA), appealing against the decision to remove her as a prison officer.

Contentions

The respondent raised a preliminary issue of jurisdiction. The respondent submitted that there were several ways under the Prisons Act and Regulations that a prison officer’s engagement may be ended. The respondent claimed that the appellant was not subject to removal under Division 3 of Part X of the Prisons Act, as she was discharged under reg 5(4) of the Regulations, which enables the Chief Executive Officer to discharge a probationary prison officer during or at the end of their probation.

The appellant contended that sworn prison officers who are subject to discharge, are only to be discharged under the procedures in ss 101 to 103 of the Prisons Act. The appellant contended that there was no exclusion from the appeal provisions in s 106 for a probationary prison officer, and that a probationary officer must be afforded procedural fairness under ss 101 to 103

Findings

The Commission confirmed that a probationary prison officer who is sworn in under s 13(2) of the Prisons Act is a prison officer for the purposes of the Prisons Act and Regulations.  Further that Division 3 of Part X did not exclude a probationary prison officer from the disciplinary and removal provisions set out under that legislation. The Commission considered, however, that there were multiple ways that a prison officer may be removed from their engagement, and Division 3 of Part X did not apply to the exclusion of all other legislative schemes.

The Commission noted that while a prison officer’s right to appeal a removal decision or action is conferred by s 106 of the Prisons Act, that such no such removal decision or removal action had occurred in this case.  Rather, the Commission found that the appellant was discharged from her probationary position under reg 5(4) Prisons Regulations 1982 (Regulations), due to an improper and unprofessional association with a prisoner.

The Commission found that there was no jurisdiction to hear and determine the appeal. The appeal was dismissed. 

The decision can be read here.