Details 

Created: 12 December 2019

The Industrial Magistrate has dismissed a geoscientist's claim for the payment of an incentive bonus for the period of 2001 to the first quarter of 2005 pursuant to the Industrial Relations Act 1979 (WA) (the IR Act) or common law, and, for the payment of overtime hours worked from 4 January 2011 to 3 January 2017 pursuant to the Professional Employees Award 2010 (Cth) (the Cth Award) or the Western Australian Professional Engineers (General Industries) Award 2004 (WA) (the State Award).

Industrial Magistrate Scaddan considered when the cause of action accrued for the incentive bonus and overtime claims. Her Honour found that the incentive bonus was paid when it fell due and that the last date that the payment would have been paid but was not was in 2005. As this claim was lodged 13 years after the last date of non-payment of the bonus and a six year limitation period applied under the IR Act, Fair Work Act 2009 (Cth) (the Cth Act) and Minimum Conditions of Employment Act 1993 (WA) (MCE Act) the claim was barred by statute and consequently dismissed by Scaddan IM. Her Honour added that the Industrial Magistrate's Court does not have jurisdiction to consider the claimant's common law claim.

Turning to the alleged non-payment or underpayment of overtime claim, Scaddan IM found that each instance of the alleged failure to pay overtime was its own separate cause of action. As the claimant's salary was paid on the 15^th of each month, the first offence was on the 15^th of January 2011, being the first month that the claimant alleged that they had been underpaid for, and then the 15^th of each month thereafter. Scaddan IM also held that the same limitation period that applied for the incentive bonus payment would apply to the claimant's claim for overtime and consequently dismissed the part of the claim that related to the payment of overtime prior to 19 December 2012.

As for the remaining part of the claim, for overtime for hours worked in excess of 38 hours per week, Scaddan IM noted that she was only required to consider the terms of the Federal Professional Employees Award 2010 (Cth) (the Cth Award) as this was all that claimant had relied on in evidence and submissions. Her Honour found that the respondent could not have contravened the Cth Award as the claimant's claim had not referred to any clause within the Cth Award, and, the Cth Award does not contain any provision for the payment of an hourly rate for hours worked over 38 hours a week. In the alternative, the claimant had not proven to the requisite standard that he had not been paid the appropriate amount of overtime because he only provided salary estimates and that these estimates were well in excess of the 2019 minimum wage contained in the Cth Award.

Scaddan IM considered that as the claimant's claim related to the Cth Award, and no other industrial instrument or order exists that would enable the IR Act or MCE Act to apply, any claim under the IR Act or MCE Act could not be enforced by the Industrial Magistrate. Further, as the claim for overtime it is not considered a minimum condition of employment the MCE Act does not apply.

The decision can be read here.

Details 

Created: 11 December 2019

The Commission has upheld an application that sought the review of a decision of the Construction Industry Long Service Leave Payments Board (the Board). The Board's decision required that the applicant register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act), an Act providing for paid long service leave to employees engaged in the construction industry. The applicant argued that they should not be obligated to register as an employer with the Board because they do not engage employees 'in the construction industry' but rather engage technicians under the Telecommunications Services Award 2010 (Cth) (the Award).

The obligation on an employer to register under the Act does not depend on the employer being engaged in the construction industry, but instead on the employer employing persons as employees who are engaged in the construction industry.

To determine whether the applicant employs employees in the construction industry, Senior Commissioner Kenner considered this question in two steps. Starting by addressing the second of the two steps, the Senior Commissioner was satisfied that the work of the applicant's employees can be characterised as work in the construction industry because it fell within the meaning of "telegraphic" contained in the Act's definition of construction industry. Returning to the first step, that the applicant's employees are employed in a classification of work in one of the prescribed industrial instruments under the Construction Industry Portable Paid Long Service Leave Regulations 1986 (WA) (the Regs), the Senior Commissioner considered that this step required him to be satisfied that the applicant's employees are employed in a classification of work referred to in the awards contained in Schedule 1 to the Regs. The Senior Commissioner considered the definition of employee in the Act and that it required that the applicant's employees have more than a passing association with the work identified in the list of at least 11 classifications from nine awards that were cited by the respondent as possibly applying to the applicant. The Senior Commissioner concluded that no classifications in any of the awards presented by the respondent covered the work performed by a "telecommunications technician" or "telecommunications trainee" as described and defined in the Award.

The Commission upheld the application to review the respondent's decision after the Senior Commissioner was not satisfied that the applicant was an employer, as defined in the Act, who engaged employees in the construction industry. 

The decision can be read here.

Details 

Created: 06 December 2019

An employer whose employees do maintenance and repairs of established and operating plant, equipment and structures, on the premises of clients, which include mines and processing plants, engages these employees "on a site" or "on site", for the purposes of the definition of "construction industry" in an Act providing for a portable paid long service leave scheme.

The Commission has answered preliminary questions relating to an application for a review of a decision of the Construction Industry Long Service Leave Payments Board (the Board) that required the applicant to register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act). The applicant argued that they should not be obligated to register as an employer with the Board because they do not engage employees 'in the construction industry'.

Chief Commissioner Scott found that 'on a site', when read in context, meant the site which the works listed in the Act's definition of construction industry are performed, that is the site at which they are constructed, erected, repaired, installed, reconstructed, re-erected, renovated, altered, demolished, or maintained or repaired, and, that work performed away from where these works are located is not construction work. The term "construction industry" under the Act is not limited to building or construction sites where new buildings or structures are being built. Therefore, employees may perform work 'on a site' if this was at a location away from the employer's premises.

An employer may be exempted from the scheme set up by the Act if the employer is "not substantially engaged" in the "construction industry" as defined in the Act. In this case, although the employer said that it was engaged in providing maintenance services to the mining and resources industries, the Commission found that it was substantially engaged in the industry covered by the Act, because of the breadth of the definition of construction industry.

The decision can be read here. 

Details 

Created: 28 November 2019

The Industrial Magistrate’s Court has dismissed part of a claim for entitlement to a contract completion payment. A medical practitioner employed in the Western Australian public health system claimed before the Industrial Magistrate’s Court that he was entitled to a contract completion payment at the completion of a fixed term contract. Payment of a contract completion payment was alleged to be an entitlement under clause 20(5) of the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement 2013 (the Agreement).

Scaddan IM considered that the purpose of a contract completion payment is to compensate a practitioner who genuinely wants to, and can, be employed in the public health service but the service is unable to provide future employment.

The claimant’s limited registration as a medical practitioner under s 65 of the Health Practitioner Regulation National Law (WA) Act 2010 (the National Law) expired on 20 November 2015. The claimant applied unsuccessfully on three occasions for renewal or reinstatement of his ‘public registration by AHPRA (Australian Health Practitioner Regulation Agency).’ Shortly after, AHPRA provided the claimant with a Certificate of Registration Status noting the claimant was unregistered and his registration had expired on 20 November 2015.

The claimant argued that because he was not ‘struck off’ any register, he was eligible for restoration to the ‘public register’ provided he remained registered for the purposes of the National Law and payment of the contract completion payment. That is, until he was ‘properly removed’ from the register, he was still registered or on the register.  

Scaddan IM did not accept the claimant’s characterisation of his registration status, and found that the claimant ceased being registered in any of the categories of registration in Part 7 of the National Law. Scaddan IM found that, from 20 November 2015, he was no longer registered as a registered health practitioner in the medical profession.

Her Honour found that it was a term of the claimant’s fixed term contract to be registered under the National Law, and that without registration, the National Law does not permit him to work as a medical practitioner. Her Honour found that it cannot have been contemplated that cl 20(5) of the Agreement be intended to compensate unregistered practitioners for being unable or ineligible to do the work that the Agreement provides they do.

Scaddan IM ultimately found that because the claimant was an unregistered practitioner at the time of the expiry of his fixed term contract, he was not eligible for a contract completion payment. Her Honour dismissed the part of the claimant’s claim relation to payment of the contract completion payment.  

The decision can be read here. 

Details 

Created: 22 November 2019

The Commission has dismissed an application made by a seafarer who alleged that he had been denied a contractual benefit when his employer did not approve his request to study and sit for an AMSA Chief Mate Certificate of Competency. The applicant alleged that his entitlement to this request was contained in clause 13.9 of the Svitzer Australia Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2010 (the Agreement) which was referred to in his contract of employment with the respondent. The Commission considered whether cl 13.9 was a contractual entitlement and, if so, was it breached.

Commissioner Matthews determined that cl 13.9 conferred a contractual entitlement on the applicant because the parties' contract of employment included language of contractual incorporation and it was reasonable to consider that the Agreement was incorporated into the contract.

Matthews C observed that cl 13.9 included a qualification, that the entitlement must not be unreasonably withheld by the employer. The respondent's financial situation and the fact that there was no pressing need for the applicant to become a chief mate was considered by Matthews C who concluded that the applicant had not established that the respondent had withheld their consent unreasonably.

The applicant claimed that a deal had been made in 2016 that if he did certain things the employer would fund his chief mate certificate. Matthews C determined that this claim did not need to be determined because the applicant had not raised this deal in his cl 13.9 application to the respondent.

The Commission dismissed the application.

The decision can be read here.