The Industrial Magistrate has determined, as a preliminary issue, that the Educational Services (Post-Secondary Education) Award 2010 (the Award) covers two truck driving instructors and assessors and applies to their employment with the respondent.

The respondent operates a business which provides training and practical driving assessments for heavy vehicle drivers.

The employees alleged that the respondent contravened the Award and the Fair Work Act 2009 (Cth).

Industrial Magistrate Scaddan determined that two preliminary issues required resolution. The first was whether the Award covers the employees and the respondent, and the second whether the Award applies to the employees’ employment.

Clause 4.3 of the Award lists a number of industries which encompass post-secondary educational services. The employees relied upon ‘(a) vocational education and training (VET) teaching leading to a qualification recognised within the AQF’ to support their contention that the respondent is an industry employer in the ‘post-secondary educational services’.

Meaning of ‘vocational education and training’ (VET)

Scaddan IM first determined the meaning of VET under the Award. Her Honour noted that common characteristics of VET throughout jurisdictions included:

• skills or work or vocation-based training;
• in a wide range of occupational areas generally outside of secondary and tertiary academic institutions;
• with courses or units of competency referrable to the AQF; and
• where statements of attainment demonstrate satisfactory completion.

Her Honour also added to the above indicia that VET is undertaken by people or organisations that are subject to a regulatory regime or oversight body.

Preliminary issues

Scaddan IM found, on the application of the evidence to the indicia, that the respondent was an employer within the ‘post-secondary educational services industry’ where it provides VET in respect of heavy vehicle truck driver training.

Her Honour also found that the Award covered the employees where they were employed by the respondent in the classification of tutors/instructors under the Award. Scaddan IM determined, as a consequence, that the Award applied to the employees and the respondent.

The decision can be read here.

The Commission in Court Session (CICS) has authorised the Registrar to alter the Rules of United Voice WA to allow the organisation to change its name to United Workers Union (WA). The CICS has also authorised the alteration of the name of its counterpart federal body from United Voice to United Workers Union.

The CICS considered the evidence provided by the Secretary of United Voice WA. The evidence recorded that the process undertaken by the organisation to make the alterations had been in accordance with the requirements of Rule 28 – ALTERATION OF RULES. The evidence was that no objections were made in regard to the proposed alterations and that the alterations were authorised by the Branch Council on 14 July 2020.

The CICS also noted that the Registrar received no objections to the application after it was published.

The CICS found that the requirements of the Rules for the alteration of those rules and requirements of the Act had been met.

The CICS has authorised the Registrar to make the name changes in accordance with the terms of the application.

The decision can be read here.

The Commission has determined that it is unable to hear an unfair dismissal claim because the applicant was employed by a national system employer and the Commission does not have jurisdiction to hear the matter.

The applicant was employed by Albany Community Radio Inc. He claimed that he was unfairly dismissed when his employer purported to make his position redundant.

The respondent objected to the application on the basis that it is a national system employer and the Commission does not have the necessary jurisdiction to hear and determine the claim.

Commissioner Walkington considered whether the respondent was a trading corporation as defined under the Fair Work Act 2009 (Cth). Walkington C found that, while the purpose of the respondent may not be commercial in nature, it clearly engaged in substantial trading activities such as subleasing and sponsorship activities.

Walkington C concluded that the respondent was a trading corporation and the applicant was employed by a national system employer. She found, therefore, that the Commission did not have jurisdiction to deal with the applicant’s claim for unfair dismissal.

An order was issued dismissing the application for lack of jurisdiction.

The decision can be read here.

The Industrial Magistrate has dismissed an application to cancel a Compliance Notice issued pursuant to the Fair Work Act 2009 (Cth) on the basis that the claimant failed to pay an employee his redundancy pay when his employment was terminated by the claimant.

The claimant sought a review of a Compliance Notice issued by a Fair Work Inspector, which alleged that the claimant did not pay the employee redundancy pay under the Joinery and Building Trades Award 2010 (Cth) when his full-time employment was terminated by the claimant.

The claimant sought a cancellation of the Compliance Notice. It argued that the employee’s employment was not terminated as he was offered casual employment by letter or accepted casual employment with the claimant.

The respondent, the Fair Work Ombudsman, argued that the Compliance Notice should be confirmed.

Industrial Magistrate Hawkins found that the employee’s employment was terminated by letter at the initiative of the claimant. Hawkins IM found that it could not be inferred that by signing the letter to confirm receipt of the notice, the employee accepted the proposal of casual employment. Her Honour also found that the claimant’s proposal of casual employment lacked particularity as to the conditions of the offer and was incapable of acceptance.

The application to cancel the Compliance Notice was dismissed.

An order was issued to correct the period of redundancy pay.

The decision can be read here.

The Commission has determined that it is unable to hear an unfair dismissal claim as the applicant was a public service officer whose termination must be dealt with by the Public Service Appeal Board (PSAB).

The applicant alleged he was unfairly terminated from his employment with the Rottnest Island Authority. He argued that s 80I(1)(d) of the Industrial Relations Act 1979 (WA) expressly excludes the PSAB from hearing an appeal concerning a ‘dismissal’ of a government officer. The applicant contended that, as a public service officer which is a subgroup of a government officer, he was precluded from appealing the decision to dismiss pursuant to the Act and had to apply to the general unfair dismissal jurisdiction of the Commission.

The respondent contended that s 80I(1)(d) of the Act provides that the PSAB has exclusive jurisdiction to hear and determine an appeal of the dismissal of a government officer. It claimed that the applicant’s claims should be dealt with by the PSAB.

Commissioner Walkington found that the applicant’s construction of s 80I(1)(d) of the Act was not correct. She found that all claims of dismissal by a government officer are to be dealt with by the PSAB, not the Commission.

Walkington C found that the Commission had no jurisdiction to deal with the applicant’s claim.

The applicant had also contended that the Public Service and Government Officers CSA General Agreement (Agreement) provides for unresolved disputes to be referred to the Commission. He submitted that he had followed the dispute resolution procedure in the Agreement and that since the dispute had not been resolved, he purports to refer the dispute to the Commission.

Walkington C found that the dispute resolution procedure contained in the Agreement could not confer jurisdiction on the Commission to deal with the matter where it was ousted by the jurisdiction of the PSAB.

The application was dismissed.

The decision can be read here.