A ceremonial sitting of the Western Australian Industrial Relations Commission was convened on Thursday, 21 January 2020 to farewell Chief Commissioner Scott on her retirement. The transcript of proceedings can be viewed here.

 Farewell sitting for Chief Commissioner Scott

The Commission in Court Session has cancelled the registration of several organisations on the ground that the organisations are defunct. The organisations are:

• Seamen’s Union of Australia, West Australia Branch;
• The Printing and Allied Trades Employers’ Association of Western Australia (Union of Employers); and
• The Western Australian Branch of the Commonwealth Steamship Owners’ Association, Industrial Union of Employers (Fremantle).

The applications were brought by the Registrar of the Commission under reg 76(3) of the Industrial Relations Commission Regulations 2005 (WA).

Notice of the applications and of the hearing of the matters were published on the Commission’s website on 8 December 2020 and in the Western Australian Industrial Gazette of 23 December 2020.

The Commission in Court Session considered the evidence, including statutory declarations made by the Registrar recording information regarding contact between the Registrar and officers of the Commission with the organisations and associated organisations over a number of years. It found it was satisfied that the organisations are defunct.

The decisions can be read here:

Seamen’s Union of Australia, West Australia Branch

The Printing and Allied Trades Employers’ Association of Western Australia (Union of Employers)

The Western Australian Branch of the Commonwealth Steamship Owners’ Association, Industrial Union of Employers (Fremantle)

The Public Service Arbitrator has dismissed applications for the conversion of two fixed-term contract employees to permanency on the basis that the employees did not meet the requirements of cl 2.1(a) and cl 11 of Public Sector Commissioner’s Instruction No. 23 (CI 23).

The Public Service Arbitrator, Commissioner Emmanuel, noted that CI 23 provides the pre-conditions that must be met for conversion of employees on fixed term contracts.

The employees are research scientists and have been employed by the Director General, Department of Biodiversity, Conservation and Attractions for over seven years on a series of fixed-term contracts, with the latest both due to expire in mid-2021.

The Director General considered whether the employees were eligible to be converted to permanency under the terms of CI 23, and decided they were not eligible for two reasons:

1. the reason for the employees’ engagements on a fixed term contract is a circumstance mentioned in the relevant industrial agreement, the Public Service and Government Officers SCA General Agreement (namely, they are working on projects with finite lives), and thus the requirement in cl 2.1(a) of CI 23 was not satisfied; and
2. the external funding for the employees’ roles could not reasonably be expected to continue beyond the current funding arrangements, and thus the requirement in cl 11(b) was not satisfied.

The employees disputed the Director General’s decision that they were not eligible for conversion to permanency.

Emmanuel C found that the employees were each engaged on a fixed term contract to work on projects with a finite life that were funded only until 2023 or 2024. She found that, as the reason the employees were engaged on a fixed term contract was a circumstance mentioned in the industrial agreement, the requirement in cl 2.1(a) was not satisfied.

Emmanuel C also found that there was no proper basis to ground an expectation that external funding for the roles held by the employees will continue beyond the current funding arrangements, and as such, the requirement in cl 11(b) was not met either.

The applications were dismissed.

The decision can be read here.

Organisations are required, from time to time, to appoint persons (known as board members) to the Public Service Appeal Board (PSAB) under s 80H of the Industrial Relations Act 1979. 

Regulation 120(1) of the Industrial Relations Commission Regulations 2005 (Regulations) provides for a member of a constituent authority (such as a PSAB) to be paid such remuneration as the Chief Commissioner from time to time determines. 

In light of administration and legal implications relating to tax deductions and potential superannuation entitlements, the Chief Commissioner has reviewed the arrangement for the payment of a sitting fee for members sitting as part of a constituent authority. Part of that review has involved consultation with affected organisations.

Having considered all of the circumstances, the Chief Commissioner has determined that, effective from 5 January 2021, payment of sitting fees for all new matters will cease. However, reimbursement for out of pocket expenses incurred under reg 120(6) of the Regulations will remain available. 

S. BASTIAN

REGISTRAR

4 JANUARY 2021

The Occupational Health and Safety Tribunal (Tribunal) has dismissed an application to review the WorkSafe Commissioner’s decision to affirm an improvement notice issued to a company on the basis that the application was made out of time and that it does not have the power to grant an extension.

A WorkSafe Inspector had issued an improvement notice on 20 July 2020 to a company. A request to the WorkSafe Commissioner to review the improvement notice was submitted on 21 August 2020, and on 20 October 2020, the company received notification that the WorkSafe Commissioner had affirmed the notice.

The company then sought a review of the WorkSafe Commissioner’s decision to affirm the improvement notice. It submitted to the Tribunal that it had sought information from an officer of the Department of Mines, Industry Regulation and Safety concerning the process for further review of the decision, but the information was provided outside of the timeframe specified in the Occupational Safety and Health Act 1984 (OSH Act). The company filed its referral with the Tribunal the following day.

The WorkSafe Commissioner advised the Tribunal that it would be seeking an order to dismiss the matter as the company had not referred the matter to the Tribunal within the specified time limit.

The Tribunal noted that the company’s submissions concerned the reasons for the delay. The Tribunal found, however, that it does not have the power to extend the time limit and thus did not have the discretion to consider the reasons for the delay to extend the time limit.

The Tribunal dismissed the application.

The decision can be read here.