The Commission has dismissed an application for unfair dismissal on the basis that the employer was a national system employer.

Background

On 23 September 2020, the applicant filed an unfair dismissal application with the Commission.

On 8 October 2020, the respondent filed a response and raised a jurisdictional objection, on the basis that it was a trading corporation and thus, a national system employer.  The respondent later provided witness statements and written submissions relating to the jurisdictional objection.

The applicant was invited to provide documentation in response to these objections, however nothing was provided.

Conclusions

The Commission found that the respondent had conclusively demonstrated that the employing entity, Krazy Price Group Pty Ltd, was a trading corporation.

The Commission considered that Krazy Price Group Pty Ltd ran small retail businesses selling homewares, party supplies, art and craft wares, pet supplies, toys, giftware, and similar items direct to the public.

The Commission found that the employer engaged in trade to earn revenue and was a quintessential trading organisation.

The Commission dismissed the application for want of jurisdiction.

The decision can be read here.

 The Public Service Appeal Board (Board) has dismissed an appeal by a government officer against the decision to change his reporting structure on the basis that the Board does not have jurisdiction to hear or determine the matter.

Background

The appellant is employed by the Economic Regulation Authority (ERA) as a Level 7 Project Manager. The appellant accepted the position in January 2018 and reported to an Executive Director. In June 2018, the ERA changed its organisational structure so that all Level 7 employees reported to a Level 8 employee. This decision was communicated to the appellant in November 2018.

The appellant’s health deteriorated following this change, and the appellant has since been on leave without pay. The appellant filed his appeal against this decision (Reporting Structure Decision) on 1 July 2021, outside of the time for the filing of an appeal.  The appellant sought an extension of time.

The appellant raised an additional issue during the hearing. In June 2021, the ERA requested a resignation from the appellant as a condition of its offer to settle the workers compensation claim. The appellant did not provide this resignation and remains employed on unpaid leave. The appellant sought to appeal against this settlement proposal, as a second decision appealed against (Settlement Proposal).

Contentions

The appellant argued that the reporting structure was a material consideration when he accepted the role. The appellant contended that the decision was arbitrary, capricious, and that the ERA failed to consult with staff as required under the Occupational Safety and Health Act 1984 (WA); Public Service Award 1992 (WA); and the Public Sector CSA Agreement 2019 (WA).

The respondent argued that the decisions appealed were not matters within the Board’s jurisdiction. The respondent relied upon statements made in emails to the appellant. In the emails, the respondent told the appellant that the changes to the restructure were made validly under the Public Sector Management Act 1994 (WA) (PSMA) and that the necessary consultation about the changes were carried out.

The respondent argued that the changes were not substantive; did not alter the role; and did not affect employees’ health or wellbeing. Further, the respondent argued that these changes were applied to all Level 7 employees and did not single out the appellant.

Findings

The Board identified three criteria that must be determined in relation to the Reporting Structure Decision and Settlement Proposal for the Board to have jurisdiction to hear the appeal:

• Whether these are “decisions” for the purpose of s 80I(1)(a);
• Whether these are decisions in relation to an interpretation of a provision of the PSMA; and
• Whether the interpretation concerns conditions of service other than salaries and allowances of public service officers.

The Board determined that the Settlement Proposal had no final determinative or operative effect and could not make any changes to the appellant’s employment unless accepted. The Board concluded that Settlement Proposal was not a decision for the purpose of s 80I(1)(a), and the Board did not have jurisdiction to hear this appeal.

The Board was satisfied that the Reporting Structure Decision had an ultimate and operative effect on the organisational structure of ERA and was a decision for the purposes of  s 80I.

The Board proceeded to consider whether the Reporting Structure Decision related to an interpretation of a provision of the PSMA. The Board found that there was no dispute between the appellant and the respondent in relation to the interpretation of the PSMA. The appellant failed to identify a question of interpretation, and accordingly, the Board did not have jurisdiction to hear the appeal.

The Board concluded that it was not material to consider the final question of conditions of service. The Board noted, nonetheless, that it would be inclined to the view that the decision does concern conditions of service. The Reporting Structure Decision determines the environment affecting the appellant’s employment because it involves who supervises his work and who he reports to.

The Board further concluded that there was no need to consider the issue of an extension of time but held that if it was required to determine this issue, it would have declined such an extension.

The decision can be read here.

The Road Freight Transport Industry Tribunal has made orders that a hirer pay an owner driver an amount for work performed under an owner-driver contract.

Background

The applicant is engaged in the business of transporting goods in heavy vehicles.

On 12 July 2019, the applicant entered into an oral agreement with the respondent to transport the respondent’s scaffolding.   On 5 August 2019, the applicant entered into a second agreement with the respondent to transport an all-terrain forklift.  On both occasions the work was performed by the applicant for the respondent.  

The applicant provided invoices to the respondent for each delivery. The respondent failed to pay the invoices and did not respond to further written communication from the applicant.

Contentions

 The respondent failed to appear at the hearing.  However, the Tribunal was satisfied the respondent had been duly served with notice of the proceedings and accordingly, proceeded to hear and determine the applicant’s claim.

 The applicant gave evidence that it performed the work as agreed and when request for payment was made, the respondent refused to pay, because the respondent had not been paid by another contractor.  The Tribunal noted that the respondent’s director had previously made contact with both the Registry and the Associate to the Tribunal, to advise that the applicant had not been paid for this reason.

Findings

 The Tribunal concluded that the applicant was an owner-driver for the purposes of the Owner-Drivers (Contracts and Disputes) Act 2007 (WA), and the agreements between the parties were owner-driver contracts.  The Tribunal found that the applicant had performed the services as agreed and that the respondent had failed to pay the applicant for the services.  The Tribunal further concluded that the respondent could not refuse to pay the applicant on the ground of not being paid by another contractor, as such is prohibited under s 9 of the OD Act.

The Tribunal ordered the respondent to pay the debt of $1305.75 and interest amounting to $139.00.

The decision can be read here.

The Ceremonial Sitting of the Commission for the presentation of Commission by Chief Commissioner Stephen Kenner and speeches of welcome for Senior Commissioner Rachel Cosentino has been rescheduled to Monday, 9 August 2021 at 8:30 am.

The Full Bench has unanimously found that the $2,000 maximum penalty in s 83(4) of the Industrial Relations Act 1979 (WA) (IR Act) for the contravention of industrial instruments should apply to each individual contravention rather than the maximum applying regardless of the number of contraventions.

 The appellant, an industrial inspector, appealed against the decision of the Industrial Magistrate on the following grounds:

 (1) The learned Industrial Magistrate made an error of law in holding that on the proper construction of s 83(4)(a) of the IR Act, the maximum penalty that can be imposed by the Court for multiple proven contraventions of an instrument to which s 83 applies is $2,000, regardless of the number of proven contraventions;

(2) The penalty of $1,700 for the 282 proven contraventions imposed by the learned Industrial Magistrate was manifestly inadequate; and

(3) The learned Industrial Magistrate made an error of law in holding that the costs incurred by the appellant for a process server and Landgate search fees were costs “for the services of any … agent” of the appellant within the meaning of s 83C(2) of the IR Act.

 The learned Industrial Magistrate considered that in the context of s 83(1), which her Honour viewed as contemplating multiple contraventions or failures, because of the expression “contravenes” and “fails” in that subsection, s 83(4) should be construed as referable to multiple contraventions attracting a maximum penalty of $2,000. Her Honour, therefore, imposed a single penalty for the 282 admitted contraventions.

The Full Bench considered this approach to the construction of s 83(4) was wrong, having regard to the natural and ordinary meaning of the words in the section. The Full Bench considered the alternative and correct construction, that the maximum applied to each contravention, was consistent with the objects of the enforcement regime of the IR Act and the context generally including the legislative history.

 The Full Bench reconsidered the penalty to be imposed, including the application of course of conduct principles. The Full Bench assessed the individual penalties for each of the 282 contraventions and considered whether any adjustment should be made to ensure that, to the extent of any overlap between separate contraventions that can be considered part of a single course of conduct, there is no double penalty imposed. The Full Bench was satisfied that the contraventions were part of a single course of conduct, and as such, it was appropriate to make an adjustment, but as a separate stage after individual penalties are assessed.

 The Full Bench upheld the appeal and set aside the decision of the Industrial Magistrates Court, substituting an increased penalty.

 The Full Bench also confirmed that the disbursements claimed by the industrial inspector were recoverable costs and not excluded from recovery as costs of an “agent”.

 The decision can be read here.