In an ongoing matter regarding an unfair dismissal claim, the applicant sought to submit video recordings made without the knowledge and consent of those recorded. These are video recordings made on the applicant’s mobile phone, which was then placed in his pocket, provide audio only content of dialogue in French, for which an English transcript was required.

The respondent objected to the admission of the recordings on the grounds that the recordings were in breach of the Surveillance Devices Act 1998, that the applicant had deliberately provoked a reaction from another person for the purpose of the recording, and because the recordings omit vital information. The applicant acknowledged that the recordings were made without the knowledge or consent of those recorded but contended that the recordings were permissible under ss 9(1) and 9(2) of the Surveillance Devices Act 1998. 

Commissioner Walkington considered that the law clearly prohibits publication and communications of recordings of conversations made without the knowledge and consent of those being recorded, barring limited circumstances, and that there would need to be a compelling reason to admit the recordings. The applicant submitted that the recordings should be admitted as they show the truth of events. However, after reviewing the content of the recordings, including the audio of a physical altercation, the Commissioner determined that the recordings did not provide any further information than is already provided for in oral and documentary evidence, and did not assist in determining whether the applicant had been provoked into the altercation.

Finding that the recordings were not reasonably necessary to protect the lawful interests of the applicant and that no compelling reason to admit them had been established, Commissioner Walkington ruled that the recordings were not to be admitted.

The decision can be read here. 

New state employment laws commenced on 31 January 2025.

Key changes, which were introduced by the Industrial Relations Legislation Amendment Act 2024, include:

• Abolishing the Commission constituent authorities of the Public Service Arbitrator (PSA) and the Public Service Appeal Board (PSAB), and transferring the jurisdiction of the PSA and PSAB to the general jurisdiction of the Commission.
• A new prohibition on sexual harassment in connection with work.
• An increase to the state statutory minimum casual loading from 20% to 25% and a new test to determine if a worker’s employment is casual employment. When determining if a person is an employee or a casual employee, the focus is to be placed on the practical reality and real substance of the working relationship and not just the terms of a contract of employment.
• A new enforceable minimum condition enabling employees to request a flexible working arrangement in certain circumstances.
• A fit and proper person test for a union official to obtain a state right of entry permit.
• Increased civil penalties for contravening state employment laws.
• A prohibition on misconduct before the Commission including insulting, obstructing or hindering a Commissioner in the performance of their functions.

Some changes to be introduced by the Industrial Relations Legislation Amendment Act 2024 have a later commencement date which has not yet been set. These changes will involve:

• Public sector employees having access to the Commission for alleged breaches of specified public sector standards.
• Improved regulation of registered industrial agents.

We are in the process of updating our website to reflect these changes where relevant. Please email registry@wairc.wa.gov.au if you have any queries about the law changes.

NOTICE is given that an application has been made to the Commission in Court Session by the Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch pursuant to section 72A of the Industrial Relations Act 1979 (WA). This application is matter no. CICS 3 of 2025 (section 72A application).

The Notice can be read here.

The Commission, of its own motion, initiated proceedings to vary the Building Trades (Construction) Award 1987 and the Building Trades Award 1968. The variations aim to simplify and modernise the scope clauses of the Awards while largely maintaining their existing coverage.

The Building Trades (Construction) Award 1987 now defines scope by reference to the ‘on-site building and construction industry,’ and the Building Trades Award 1968 extends coverage to all industries employing workers in the occupations covered by the award, unless they are covered by another award. Other variations include adding a classification for tradespersons with an apprenticeship in concreting, clarifying the application to labour hire businesses and group training services, and ensuring the awards do not apply to employees covered by another State award or the national industrial relations system.

Several unions, employers, and industry groups were notified of the proposed variations, and no individual, organisation, or employer advised the Commission of any opposition to the proposed variations. Accordingly, The Commission in Court Session ordered the awards be amended as proposed.

The decision can be read here.

The appellant employer appealed the decision of an Industrial Magistrate, who found that the employer was required to pay overtime payments to the respondent Union’s member for work performed on a public holiday.  In his decision, Industrial Magistrate Kucera ordered the employer to pay the overtime pay owed to the employee as well as a $15,000 fine.

The appeal grounds related broadly to the Industrial Magistrate’s interpretation of the Industrial Agreement. The employer argued that the Agreement was unambiguous on the matter of public holiday pay being included in the annualised salary and the employee’s rostered hours including the public holiday. Other grounds challenged the penalty imposed, including by alleging the Industrial Magistrate incorrectly applied the maximum penalty for a body corporate to the employer, when the employer was an individual (the Minister).

The Union cross appealed the penalty decision, contending that the penalty was inadequate and that costs should have been awarded to the Union.

The Full Bench, by a majority comprising Commissioner Emmanuel and Commissioner Tsang, upheld the first and second grounds of the appeal, finding that Industrial Magistrate Kucera erred in finding that the construction of the Industrial Agreement was ambiguous on the matter of overtime and public holidays, and in finding that the employee was entitled to a paid day off on the public holiday. The majority relied on the terms of a clause in the Industrial Agreement which provided that the Annualised Salary compensates officers for working on public holidays ‘except where specifically provided for in this Agreement.’ The majority considered this meant that there must be express provision made in the Industrial Agreement itself. There being no such express provision, the Industrial Agreement did not entitle the employee to overtime pay for hours worked on a public holiday or a paid day off.

As a result of upholding the first two grounds of the appeal, it was not necessary for the majority to consider grounds 3-8.

The Senior Commissioner dissented in relation to the construction of the Industrial Agreement. She agreed with the Industrial Magistrate’s construction. She also considered the Industrial Magistrate was correct to have assessed the penalty for contravention on the basis that the employer (being the State) was a body corporate.

The Full Bench unanimously dismissed the Union’s cross-appeal for reasons including the fact that the Union had not claimed costs in the proceedings at first instance and so could not raise that matter on appeal.

The decision can be read here.