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.

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.

Discovery of the applicant’s family court documents was ordered because it was deemed relevant to the claims, specifically in assessing the respondent’s allegations of deceit and gaining an advantage, and not considered oppressive.

The applicant filed an unfair dismissal application and denied contractual benefit claim against his former employer, the respondent. The hearing for these claims was scheduled for 15 and 16 November 2023. On 3 November 2023, the respondent filed an application requesting discovery of "Remuneration Documents," specifically those related to the applicant’s divorce and family law proceedings. The respondent argued that these documents were relevant to the issues in the proceedings, particularly to the applicant’s credibility and his motivation for the Pay Banking Arrangement, a matter under contention.

The respondent contended that the applicant voluntarily raised his divorce proceedings during the disciplinary process leading to his dismissal, and this disclosure might explain his motivation for the Pay Banking Arrangement. The respondent asserted that the family court disclosures could be relevant to the appropriateness of reinstatement and whether the applicant deliberately misled the respondent. On the other hand, the applicant opposed the discovery request, arguing that the family court disclosures were irrelevant to the claims and were an invasion of his privacy. He emphasised that his motive for entering the Pay Banking Arrangement was not necessary to establish serious misconduct.

Commissioner Tsang determined that an order for discovery should be made under section 27(1)(o) of the Industrial Relations Act 1979 (WA). Commissioner Tsang found the family court disclosures relevant to the claims, particularly in assessing the respondent’s allegations of deceit and gaining an advantage. Commissioner Tsang deemed the order for discovery not oppressive, noting that the parties agreed it would not delay the upcoming hearing and that any confidential information in the documents could be redacted.

The decision can be read here.

The Commission in Court Session granted the amendment of CICS 5 of 2023, allowing the consolidation of applications CICS 5 of 2023 and CICS 9 of 2023, emphasising efficiency in addressing the broader issue of the capacity to represent industrial interests across local government enterprises.

The applicant sought orders under s 72A of the Industrial Relations Act 1979 (WA) asserting its exclusive right to represent the industrial interests of employees in the outside workforce at the City of Rockingham. Alternatively, the applicant sought orders confirming that the respondent did not possess such rights. The respondent, in response, filed CICS 8 of 2023, seeking orders to represent employees as carpenters, painters, and plant operators if it were determined that they lacked the right to represent them in the main application.

The Commission in Court Session, recognising the commonality of issues, ordered the consolidation of CICS 5 of 2023 and CICS 8 of 2023, with the Local Government, Cemeteries, and Racecourse Employees Union granted leave to intervene. Later, the applicant filed CICS 9 of 2023, extending the scope to 145 local government bodies statewide, maintaining the same orders but with different supporting grounds.

The applicant subsequently applied to amend CICS 5 of 2023 to align with the terms of CICS 9 of 2023 and sought to join and hear both applications together. The intervenor supported the amendment, while the respondent opposed it, arguing it amounted to an abuse of process. The central question was whether the amendment, combining the two applications, would expedite the proceedings and serve the objectives of the Act.

The Commission in Court Session, considering the broad discretion under s 72A, granted the amendment, emphasising that the real controversy involved the respondent's capacity to represent industrial interests broadly. The decision aimed at efficiency, avoiding separate hearings, and expeditiously addressing the broader issue of the respondent's representative role in local government enterprises. The Commission vacated existing directions and ordered the joined hearing of CICS 5 of 2023 and CICS 9 of 2023, finding this approach preferable in terms of time, resources, and overall resolution of the dispute.

The decision can be read here.

The Minister for Corrective Services applied to the Commission under s 46 of the IR Act seeking declarations concerning the meaning of express and implied terms in the Department of Justice Prison Officers’ Industrial Agreement 2020.

Section 46 allows the Commission to declare the true interpretation of an award, general order or industrial agreement while it is in force. Such a declaration is then binding on all courts and all persons with respect to the matter the subject of the declaration.

Minimum conditions of employment contained in the MCEA extend to and bind all employees and employers and are taken to be implied in industrial agreements. The first question the Commission was required to decide was whether s 46 was intended to give the Commission the power to declare the true interpretation of these implied terms.

Senior Commissioner Cosentino concluded that s 46 did not allow the Commission to declare the true interpretation of terms implied by statute. The Senior Commissioner observed that:

1. Section 46 expressly refers to instruments the Commission itself has made.
2. The power in s 46 to vary an instrument to give effect to the provision cannot be exercised in relation to terms implied by statute.
3. There is no policy reason that can be identified as to why the common law position, whereby judicial decisions on the interpretation of legislation in other jurisdictions are not binding on other courts, should be displaced.
4. The power in s 46 is to advance the Act’s object of providing for the observance and enforcement of agreements and awards, not for preventing and settling industrial disputes.
5. The rules that apply when construing an industrial agreement are different to the rules that apply when construing a statute.

The Senior Commissioner noted that this conclusion does not mean that the Commission cannot consider the true meaning of legislation as relevant context, as a step in construing an industrial agreement.

The Senior Commission therefore declined to make any declaration as to the true meaning of provisions of the MCEA but did go on to decide the true meaning of other provisions of the industrial agreement.

The decision can be read here.