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Full Bench Upholds Commission's Decision on Contractual Claims.

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.

Appeal Board Upholds Dismissal over Vaccination Non-Compliance.

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.

Dismissal of Appeal: Appeal Board Cites Non-Compliance and Incomplete Case.

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.

Commission Defines 'Continuous Service' for Two Health System Awards

The Commission found that references to 'continuous service' for casual employees mean a period of unbroken service to an employer.

The matter concerned the interpretation of long service leave (LSL) clauses in two industrial agreements covering Western Australian health system employees: the Enrolled Nurses Agreement and the Hospital Support Workers Agreement. Clause 44 of the Enrolled Nurses Agreement and clause 39A of the Hospital Support Workers Agreement pertain to long service leave for casual employees, providing 13 weeks' paid leave after 10 years of continuous service, with additional leave for subsequent periods of seven years.

The applicant sought a declaration from the Commission regarding the true interpretation of the casual LSL clauses under section 46 of the Industrial Relations Act 1979 (WA). The applicant contended that 'continuous service' includes all qualifying service with the employer before the registration of the industrial agreements. In contrast, the respondent argued that 'continuous service' should only encompass service provided from the date the entitlement first appeared in an industrial instrument applicable to the casual employees.

The Commission found the casual LSL clauses to be ambiguous, emphasising that a reasonable person reading them would interpret continuous service as unbroken service to an employer for calculating long service leave entitlement. The Commission issued declarations clarifying that in both agreements, references to 'continuous service' mean a period of unbroken service to an employer by an employee.

In summary, the Commission resolved the dispute by affirming the ordinary and common-sense meaning of 'continuous service' in the context of calculating long service leave entitlements for casual employees under the respective industrial agreements.

 

The decision can be read here.

Appeal Board dismisses appeal in settlement agreement dispute

The Public Service Appeal Board dismissed the appellant's appeal, citing the inconsistency of pursuing the appeal with a prior Settlement Agreement and expressing concern about the potential effect on employer settlement discussions.

The appellant, employed as an Executive Officer Level 5 by the Department of Communities, faced disciplinary action initiated by the Acting Assistant Director General on 9 February 2022. The allegations involved breaches of the Code of Conduct, specifically related to misleading information in recruitment processes and inappropriate use of emails. Displeased with the Department's decision, the appellant appealed to the Appeal Board on 3 July 2022. Concurrently, she sought orders from the Commission to address bullying conduct under the Industrial Relations Act 1979 (WA).

However, on 20 April 2023, the Commission dismissed the appellant's application for stop bullying orders. The Department contended that the appeal should be dismissed as the appellant had allegedly agreed, as part of a Settlement Agreement, to discontinue the appeal under s 51BM of the Act. The appellant, on the other hand, argued that the Department failed to fulfill its commitment to finding her a suitable position within a specified timeframe.

The Appeal Board, upon evaluating the situation, found that the terms of the Settlement Agreement implied an agreement to dismiss the appeal by consent. Additionally, the Appeal Board noted that continuing the appeal contradicted the agreement's provision that disciplinary findings and reprimands would remain in place. The Appeal Board considered the appellant's pursuit of the appeal inconsistent with the Act, emphasising that the matter had been settled by agreement.

Furthermore, the Appeal Board considered that allowing the appeal to proceed after a settlement would set a precedent, effecting employers engaging in settlement discussions. The dismissal of the appeal under s 27(1)(a) of the Act was based on the Appeal Board's conclusion that, in light of the settled resolution and the absence of exceptional reasons, it would not be justifiable or equitable for the appellant to seek a review of the employer's decision.

 

The decision can be read here.

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