The Western Australian Industrial Relations Commission will be closed from 4:00pm on Friday, 22 December 2023, re-opening at 8:30am on Tuesday, 2 January 2024.

During this period, Commission documents can still be lodged via the online lodgement system or by email to registry@wairc.wa.gov.au. 

Please note, in accordance with regulation 4(3) of the Industrial Relations Commission Regulations 2005, where a document is required to be filed or lodged within a prescribed time and the Registry is not open for business on the last day on which it may be filed or lodged, it is taken to have been filed or lodged within time if it is filed or lodged on the next day that the Registry is open for business.

Should you require urgent assistance during this period, please contact the Registrar or Deputy Registrar on the following details:

Registrar Susan Bastian - 0404 044 338 or susan.bastian@wairc.wa.gov.au

Deputy Registrar Sarah Kemp - 0419 822 989 or sarah.kemp@wairc.wa.gov.au

The Industrial Appeal Court dismissed the appellant's appeal, considering it to be ‘moot’, emphasising the Court’s limited jurisdiction under the Industrial Relations Act 1979 (WA) and finding that the grounds presented did not meet the statutory criteria for an appeal.

The appellant appealed to the Court from a decision of the Full Bench of the Western Australian Industrial Relations Commission, which unanimously dismissed four interlocutory applications in an appeal. However, the appeal was considered moot as the Full Bench had already dismissed the substantive appeal, and no appeal had been made against that decision.

The interlocutory applications dismissed by the Full Bench involved various claims, including an application to amend the original claim; a request for discovery of documents; an application to invite the respondent to admit facts; and an application for discovery related to conflicts of interest. The Full Bench in its decision, found that these applications were not able to be dealt with for various reasons, including the limited scope of an appeal defined by section 49(4) of the Act.

The Court emphasised the limited jurisdiction of the Industrial Appeal Court to hear an appeal from a decision of the Full Bench. The right of appeal is given by statute, and the Court’s jurisdiction is restricted to specific grounds outlined in section 90(1) of the Act, such as excess of jurisdiction, errors in law, or denial of the right to be heard.

The appellant's grounds of appeal were not clearly articulated, but the Court identified three potential grounds related to alleged errors in the handling of interlocutory applications. The Court scrutinised each ground and found none fell within the jurisdiction of the Court. The appellant's claims regarding the Registry’s alleged errors in handling online lodgement and transcript editing, did not meet the statutory criteria for an appeal.

According to the Court, none of the four interlocutory applications enlivened the jurisdiction of the Court under section 90(1) of the Act to hear an appeal. The Court concluded that the appeal must be dismissed.

In conclusion, the Court found that the appeal lacked merit and dismissed it, reinforcing the limited scope of the Court’s jurisdiction in hearing appeals from decisions of the Full Bench.

The decision can be read here.

The Full Bench dismissed the appellant's appeal, upholding the Commission's rejection of the claims for reasonable remuneration, on a quantum meruit basis, finding that the appellant's entitlement did not fall within the jurisdiction of s 29(1)(b)(ii) and that the contractual terms did not support the asserted claims.

The Full Bench appeal arose from the dismissal of the appellant's application under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA). The appellant, an electrician, alleged denial of contractual benefits related to overtime and site allowance payments during travel to the Kemerton Lithium Plant site, leading to the central issue of entitlement to payment for travel time. The Commission rejected both primary and alternative claims, prompting the appeal.

A Statement of Agreed Facts (SOAF) established common ground, detailing the appellant's entitlements during specified periods. The appeal centred on contentious contract terms, including whether "work performed" in the overtime clause encompassed travel time. The Senior Commissioner rejected this interpretation, emphasising the physical location of productive work.

The Commission's focus on the appellant's entitlement to reasonable remuneration for travel led to the appeal. The Commission, relying on contract interpretation principles, ruled against the appellant, stating that the claim fell outside the s 29(1)(b)(ii) jurisdiction.

The grounds of appeal challenged the Commission's alleged errors. Ground One questioned the jurisdiction to order a restitutionary remedy. The appellant argued broad powers under s 23(1), supported by sections 26(1)(a) and 26(2). The respondent countered that the claim lacked contractual grounding.

Ground Two dealt with alleged errors in the Senior Commissioner's characterisation. The appellant asserted mischaracterisation, framing the jurisdiction question incorrectly, while the respondent argued accuracy in characterising the claim based on contract voidability.

Ground Three focused on an allegation of a void and unenforceable Deemed To Be Working Clause in the contract. The appellant claimed voidness and uncertainty, citing the lack of evidence on the intent of the Composite Hourly Rate of Pay. The respondent argued that the contractual terms, as construed, did not support the claim.

Ground Four addressed entitlement to reasonable remuneration for travel. The appellant argued entitlement and unconscionability, asserting an error by the Senior Commissioner. The respondent opposed the quantum meruit claim, maintaining the Contract's terms and agreed arrangements.

Consideration

Ground One: Commission's Jurisdiction

The Full Bench upheld the Senior Commissioner's decision, stating that the appellant's claim, seeking restitution for reasonable remuneration, does not align with the statutory provision (s 29(1)(b)(ii)). The claim did not seek to enforce a contract but rather, attempted to invalidate its terms, making it beyond the scope of the provision.

Ground Two: Validity of Deemed To Be Working Clause

The Full Bench rejected the appellant's argument that the Deemed To Be Working clause was void due to uncertainty. Emphasising the clarity of the clause within the context of the contract, the Full Bench affirmed the Senior Commissioner's decision on this matter.

Ground Three: Clarity of Deemed To Be Working Clause

In the alternative, the appellant contended that the Deemed To Be Working clause was void for uncertainty. The Full Bench disagreed, concluding that the clause was clear in its terms, within the overall context of the contract. The clause was considered neither illusory nor unacceptably uncertain.

Ground Four: Entitlement to Travel Remuneration

In considering the possibility of reasonable remuneration for travel, the Full Bench suggested that the Composite Hourly Rate of Pay would serve as a reasonable measure. However, the appeal was ultimately dismissed on all grounds.

The decision can be read here.

The Public Service Board dismissed the appeal, upholding the decision to dismiss him for non-compliance with vaccination requirements, deeming the dismissal fair and rejecting his request for reinstatement as beyond the Appeal Board's power.

The appellant, an Engineering Associate at Main Roads Western Australia, was dismissed for non-compliance with an Employer Direction requiring vaccination under the Building and Construction Industry Worker (Restrictions on Access) Directions (BCIW Directions). The appellant argued that his dismissal was unfair, contending that he could have negotiated a rotation to perform duties in areas not subject to BCIW Directions and sought reinstatement.

The respondent asserted that the dismissal was justified as the Employer Direction was a reasonable and lawful order, necessary for the applicant's duties requiring attendance at construction sites. The respondent argued that the applicant's refusal to be vaccinated prevented him from fulfilling key duties, and justified the decision as fair.

The Appeal Board dismissed the appeal, noting that the appellant's duties involved construction site access, and his upcoming rotation required attendance at Pilbara construction sites. Non-compliance with vaccination requirements hindered his ability to perform essential duties, rendering his dismissal justifiable. The Appeal Board rejected the appellant's reinstatement request, deeming it an attempt to formulate new contractual terms beyond the Appeal Board's power and constituting jurisdictional error. Additionally, such an order would be inconsistent with the Appeal Board's obligations under the Industrial Relations Act 1979 (WA), as the applicant could not fulfill all duties.

The decision can be read here.

The Public Service Board dismissed the appellant's appeal against dismissal due to his failure to comply with directions, resulting in an incomplete case that prevented the respondent from adequately responding.

The appellant, a former Memorial Services Officer at the Metropolitan Cemeteries Board, appealed against his dismissal on the grounds of perceived severity, seeking reinstatement. Despite referencing documents in his notice of appeal, the appellant failed to submit any supporting materials. The respondent argued against adjusting the dismissal decision, asserting that the appellant's disregard for lawful instructions had eroded trust and confidence.

Subsequently, the appellant notified the Appeal Board and the respondent of perceived inaccuracies in the respondent's response but failed to specify or provide evidence. Despite directions, the appellant did not submit an outline of submissions. In response, the respondent sought dismissal of the appeal, citing the appellant's non-compliance with the Appeal Board's directions and a lack of prosecution of his case.

The Appeal Board, acknowledging the appellant's self-representation, deemed that adequate assistance was provided. However, it found the appellant's failure to diligently comply with directions resulted in an incomplete case, preventing the respondent from responding effectively. As a result, the Appeal Board concluded that the appellant had not met the onus on him to diligently pursue his case, resulting in an injustice to the respondent. The appeal was dismissed the appeal under s 27(1) of the Industrial Relations Act 1979 (WA).

The decision can be read here.