The Commission has reviewed and updated all Practice Notes. The former Practice Notes have been replaced.

The following Practice Notes have been issued:

• Practice Note 1 of 2021: Delivery of reserved decisions
• Practice Note 2 of 2021: Inspection and search of Commission records
• Practice Note 3 of 2021: Written and oral submissions to the Full Bench and CICS
• Practice Note 4 of 2021: Providing copies of decisions to the Commission during proceedings
• Practice Note 5 of 2021: Appeals and applications before the Full Bench and CICS - want of prosecution
• Practice Note 6 of 2021: Interlocutory proceedings before the Full Bench, CICS or Chief Commissioner
• Practice Note 7 of 2021: Public Service Arbitrator Reclassification Appeals
• Practice Note 8 of 2021: Concurrent expert evidence
• Practice Note 9 of 2021: Witness outlines and witness statements
• Practice Note 10 of 2021: Evidence or submission by telephone or video link
• Practice Note 11 of 2021: Electronic devices in hearing rooms

The Commission’s Practice Notes are also accessible on this page.

(NOTE: Practice Note 12 of 2021, issued on 14 December 2021, replaces Practice Note 3 of 2021)

The Commission has dismissed a claim for denied contractual benefits on the basis that the applicant was not constructively dismissed by his employer. It found that the employer did not repudiate the applicant’s contract of employment and that even if there was a repudiation, the applicant affirmed the contract by continuing in his position for almost five months after the purported repudiation.

Background

In late 2018, the applicant was approached by the respondent, the University of Western Australia, to discuss a possible position with the respondent in relation to a finance transformation project (Project) the respondent was proposing to implement.

The applicant entered into a contract of employment for the position of Project Analyst on a fixed term basis for two years. A significant component of the Project was the ‘Total Accounting System Replacement’ (TASR). To progress the TASR, a business case was required to be approved by the senior executive. However, because of financial constraints, the business case was not approved.

Contentions

The applicant maintained that it was the intention of his engagement to take a lead role in the Project and the non-approval of the TASR led to a substantial reduction in the scope of his duties and responsibilities. He argued that he was then provided with no ‘meaningful work’. The applicant argued that the effect of this was a repudiation by the respondent of the applicant’s contract, which led to his resignation in July 2020.

The applicant claimed that he had no alternative but to resign and maintained that he was ‘constructively dismissed’ because of the respondent’s repudiation of his contract. He sought payment under the termination of employment provisions of his contract, totalling over $100,000.

The respondent contended that the applicant had no entitlement under his contract as he voluntarily resigned from his employment. It denied that the changes made to the Project led to a sufficiently major alteration to his duties to constitute a repudiation of his contract.

The respondent relied upon the express terms of the contract, which it said enabled the respondent to allocate varied duties to the applicant or even no work at all, as long as he was continued to be paid.

Findings

Senior Commissioner Kenner found that the respondent did not repudiate the applicant’s contract of employment. He found that the contract provided express terms that allowed the respondent to designate duties outside the scope of the applicant’s ‘usual role’, and even assign the applicant no work as long as he continued to be paid in full. Kenner SC determined that the applicant’s submission that the respondent had to provide him with ‘meaningful work’ could not be sustained and was contrary to the express terms of the contract.

Kenner SC also found that there was an express ‘entire agreement’ clause and the applicant could not rely on statements made to him before his acceptance of employment.

In addition, Kenner SC found that there was a significant delay in the applicant claiming his contract of employment had been repudiated, constituting a dismissal. He noted that the applicant continued to work in his position for almost five months after the alleged repudiation occurred. Kenner SC found that even if there was a repudiation, it would be open to conclude that the applicant affirmed the contract and lost his right to regard himself as dismissed.

The application was dismissed.

The decision can be read here.

The Commission has dismissed a jurisdictional objection to the Commission hearing and determining an unfair dismissal matter. It found that as the employer was not a trading corporation and therefore not a national system employer, the Commission has jurisdiction to hear and determine the matter.

Contentions

The applicant, an employee of the WA Police Union of Workers (Union), made an application claiming unfair dismissal by the Union.

The Union objected to the Commission hearing and determining the application because it said that the Union is a trading corporation and therefore a national system employer. It argued that its Rules ‘contemplate that trading and financial activities will make up a substantial endeavour and purpose’ of the Union. It also contended that its largest source of income, membership fees, has trading characteristics.

The applicant agreed that the Union engages in some trading activities but contended that those activities are insufficient to justify the Union being characterised as a trading corporation. She argued that the Union’s purpose is to protect and further the industrial interest of its members and that charging membership fees is not a trading activity.

The applicant also said that trade unions are not ordinarily, by their nature, trading corporations and the Union had not established that it was an exception. She argued that the jurisdictional objection should be dismissed.

Findings

Commissioner Emmanuel considered the evidence and concluded that the Union is not a trading corporation. She noted that the central weakness in the Union’s case was equating the receipt of income (mostly in membership fees) with the Union being a trading corporation, without adequate explanation or identification of the trading or commercial character of the Union’s activities. Further, she observed that the Union’s submissions overstated the commercial nature of its activities.

Emmanuel C found that the sale of memberships lacks a commercial or business character and is not a trading activity. Instead, she found that receiving membership fees is an industrial advocacy activity, carried on with a view to improving the industrial interests of members.

Emmanuel C also found that other trading activities engaged in by the Union, including receiving income in exchange for rental accommodation and selling advertising space and watches, did not form a sufficiently significant proportion of the Union’s overall activities to characterise the Union as a trading corporation.

Emmanuel C found that the Union is not a national system employer. The Union’s objection to the Commission exercising its jurisdiction in this matter was dismissed.

The decision can be read here.

The Commission in Court Session (CICS) has reviewed the operation of the COVID-19 Flexible Leave Arrangements General Order and the JobKeeper General Order and has concluded that they will cease to have effect on 31 and 28 March 2021, respectively.

Leave Flexibility General Order

On 14 April 2020, the CICS issued a General Order amidst the COVID-19 pandemic to provide for flexible leave arrangements that allowed state system employees to take unpaid pandemic leave, annual leave on half-pay and annual leave in advance.

On 22 July 2020, the Commission reviewed the General Order of its own motion and extended its operation until 31 March 2020.

In mid-March 2021, the Commission further reviewed the General Order of its own motion and received responses from the parties. Except for the Chamber of Commerce and Industry of Western Australia, the parties considered that the General Order has served its purpose and ought not to continue in effect.

The CICS concluded that a further extension of the General Order is unnecessary at this time. It will cease to have effect on 31 March 2021.

This Statement can be read here.

JobKeeper General Order

On 15 May 2020, the CICS issued a General Order to provide employers with further flexibility to manage employment arrangements in a manner that supported the JobKeeper Scheme.

In mid-March 2021, the Commission reviewed the operation of the General Order of its own motion and sought responses from the parties. The parties reported that given that the General Order is directly linked to the Federal JobKeeper Scheme which ended on 28 March 2021, it was considered appropriate that the General Order cease to have effect in accordance with its terms.

It ceased to have effect on 28 March 2021.

This Statement can be read here.

The Industrial Magistrate has imposed penalties totalling $53,000 on a finance company and its director for a failure to pay an employee entitlements under the Banking, Finance and Insurance Award 2010 (Cth) (Award).

Background

On 13 June 2019, Industrial Magistrate Scaddan found that the First Respondent, the finance company, contravened the Fair Work Act 2009 (Cth) (Act) by:

• failing to pay the claimant, the employee, an amount under the Award; and
• failing to comply with the National Employment Standards (NES), and in doing so, contravening a civil remedy provision in failing to pay the amount.

Further, the First Respondent was found to have contravened the Award by failing to provide copies of the Award and the NES to the claimant, as well as failing to comply with the Fair Work Regulations 2009 (Cth) by not keeping and maintaining certain prescribed records of employment.

On appeal, the Second Respondent, the director, was found to be involved in, and liable for, the First Respondent’s contraventions of the Act comprising of the failures to pay the claimant his entitlements under the Award and NES. However, he was not found to be involved in, or liable for, the First Respondent’s failure to provide copies of the Award and the NES, and its failure to keep certain employment records.

Following the claimant’s successful appeal to the Federal Court of Australia, the question of penalties was remitted back to the Industrial Magistrates Court for further hearing and determination.

Further Reasons for decision

The claimant contended that the respondents’ conduct was a deliberate exploitation of a young employee, that they lacked contrition, failed to cooperate with the claimant when he raised concerns, and that they profited from the contraventions. He proposed a penalty of $115,000 for the First Respondent and $17,000 for the Second Respondent.

The respondents contended that they did not profit from its contraventions, have no prior contraventions, that the contraventions were not deliberate, that they had demonstrated contrition, and had made a payment for the sum ordered following the decision at first instance. They proposed a penalty of $25,000 for the First Respondent and $5,000 for the Second Respondent.

Industrial Magistrate Scaddan noted that the following considerations were significant in assessing penalties in this case. These included:

• Her Honour did not accept the sinister character of the failures attributed by the claimant, and there was no evidence that the respondents profited from its contraventions;
• The respondents have not been found to have previously contravened the Act;
• The circumstances surrounding the respondents’ failures demonstrate some reliance by the Second Respondent on the erroneous advice of others;
• The business remains in a poor, albeit improving, financial state;
• The Second Respondent has expressed contrition and has taken steps to ensure that, as the First Respondent’s business improves and expands, the contraventions will not occur again; and
• The Claimant overstated the impact of the First Respondent’s actions.

Scaddan IM was of the view that the conduct in all circumstances is properly categorised in the low range.

Her Honour found that imposing a penalty of $44,800 on the First Respondent, and $8,800 on the Second Respondent, was appropriate.

The decision can be read here.