Details  Created: 25 June 2020

The Industrial Magistrate Court has upheld a claim for entitlement to pay after an initial 10-hour ‘stand down time’ by a detention service officer (Officer), who worked escorting detainees from a detention centre to a country outside of Australia (International Escort).

The claimant’s time on each International Escort was divided between time spent accompanying the detainee to an airport outside of Australia, and time spent returning to the detention centre (Return Time). The Return Time included time spent by the claimant at local accommodation awaiting his return flight back to Perth (Local Accommodation Time or LAT).

The claimant’s pay for the International Escort is governed by the Serco Immigration Services Agreement 2015 (Cth) made under the Fair Work Act 2009 (Cth). More specifically, his entitlement is found in cl 19(k) of the agreement, which provides that:

‘payment does not apply to periods of up to 10 hours duration in any 24 hours as a stand down time (i.e. overnight accommodation time) but does not include travelling time, time in transit time waiting to travel or time otherwise worked on Serco duties’.

The claimant contended that the effect of the clause provides for payment to him at normal rates (without overtime) for each hour of LAT after 10 hours had elapsed.

The respondent argued that, as the clause was silent on whether the claimant had to be paid for any subsequent period of LAT, the claimant had no entitlement to pay for any period of LAT other than time spent while working at the express request of the respondent.

Industrial Magistrate Flynn considered the meaning of the clause in light of the facts, the ordinary meaning of the words, and the context, purpose and objective of the whole agreement and found that the claimant’s interpretation of the clause was correct.

Flynn IM found that after handing over a detainee during an International Escort, the claimant was entitled to be paid for the whole time spent returning to the detention centre excepting only the first 10 hours spent at local accommodation waiting for the first available transport.

Flynn IM determined that the claimant was entitled to have that time applied in calculations of his entitlement to overtime under the agreement.

The claim was upheld.

The decision can be read here.

Details  Created: 25 June 2020

The Industrial Magistrate has dismissed a claim for additional redundancy pay by a union acting on behalf of two members who worked at Racing and Wagering Western Australia.

Background

Both members were employed by the respondent for over 23 years, until their positions were made redundant on 30 November 2018. They were entitled to a redundancy payment in accordance with cl 28 of the RWWA General Staff Agreement 2015 (Cth), made under the Fair Work Act 2009 (Cth).

Clause 28(4)(b) of the Agreement states that employees who had commenced service before 1 September 2009 (pre-September 2009 Employees), which included both the members, are entitled to redundancy pay for service up to 31 August 2012, calculated on the basis of 3 weeks per year of service with a maximum of 52 weeks’ pay (preserved calculation).

The parties were in dispute on whether cl 28 results in additional redundancy pay for service after 31 August 2012. Clause 28(4)(b) states that, for pre-September 2009 Employees, additional redundancy pay for the period after 31 August 2012 is based on cl 28(2)(a).

Clause 28(2)(a) sets out a table by which entitlement to severance pay is determined for an employee whose role is made redundant. The table sets out the number of weeks salary applicable to each year of the employee’s period of continuous service with the respondent on termination, with a maximum of 16 weeks’ pay for 9 years of service or over.

Submissions

The claimant contended that the result of the application of cl 28(2)(a) to pre-September 2009 Employees is for additional redundancy pay to be calculated for the portion of service after 31 August 2012 as if service commenced on 31 August 2012 and ended on the date of redundancy. The result is that the members are each entitled to additional redundancy pay of 11 weeks for their 6 years of service between 2012 and 2018.

The respondent argued that additional redundancy pay is calculated for only the portion of the whole period of service that occurs after 31 August 2012, where the whole period of service is 30 years for the first member, and 23 years for the second member.

The respondent contended that a consequence is that the maximum entitlement to redundancy pay is reached 9 years after the commencement of the actual date of service. This means that any further service, including service after 31 August 2012 does not, under cl 28(2)(a), attract any further redundancy pay.

On this view, Flynn IM noted that because the members reached a maximum of 9 years or over before 31 August 2012, cl 29(2)(a) did not provide for any additional redundancy pay for service after that date.

Analysis and conclusion

In his analysis, Flynn IM considered the meaning of the clause in light of the facts, the ambiguity of the clause, the ordinary meaning of the words, a similar agreement made in 2009, and the context, purpose and objective of the whole agreement. Flynn IM found that the respondent’s interpretation of the clause had the meaning that best conformed to the intention of the parties.

Flynn IM found that the members were only entitled to the preserved calculation pay of 52 weeks as a redundancy payment, and not the additional redundancy pay of 16 weeks for service after 31 August 2012.

The decision can be read here.

Details 

 Created: 17 June 2020

The Director General of the Department of Education WA applied to the Commission for an order to stay orders pending a Full Bench decision where special circumstances justifying the stay were found to have been made out.

The applicant sought a stay of orders 1 and 2 in the order made on 29 May 2020 by the Commission. Those orders were that:

(1) the union’s member, a teacher, be returned to employment with the Department of Education WA within 21 days of the date of this order and, as soon as is practicable, be returned to work at a school other than Busselton Senior High School; and

(2) the service of the union’s member with the respondent be deemed continuous for all relevant purposes.

Chief Commissioner Scott noted that the orders sought to be stayed would have returned the union’s member to employment with the applicant within a matter of days. The Commission also noted that the grounds of appeal relate to issues of the union’s member’s fitness to work and issues of trust and confidence in the employment relationship. Scott CC found that, in those circumstances, to not stay the orders would render the appeal nugatory.

Scott CC also found, in considering the prospects of success of the appeal, that the grounds of appeal raise some arguable issues.

Scott CC found that orders 1 and 2 of the Commission’s order of 29 May 2020 ought to be stayed and has issued an order to that effect.

The decision can be read here.

Details 

 Created: 15 June 2020

The Western Australian Industrial Relations Commission has issued a General Order under s 50 of the Industrial Relations Act 1979 (WA) to adjust the part of each location allowance representing prices, effective from 1 July 2020.

In accordance with the Commission’s usual practice, the Commission of its own motion has undertaken a review of the prices components. State private sector awards generally provide for a location allowance. Each allowance has three components, namely climate, isolation and prices.

The s 50 parties under the Act were notified of the review and informed that the Commission intended to increase the part of each location allowance representing prices by 2.32% to reflect the increase in the Consumer Price Index for Perth (excluding housing) for the year to March 2020.

All parties agreed to the proposed adjustments to location allowances.

Accordingly, the Commission in Court Session has now issued a General Order to reflect these changes.

The Reasons for Decision can be read here.

The General Order can be read here.

Details 

 Created: 11 June 2020

The Industrial Magistrate has ordered that the respondent, a financial services provider, pay the claimant a pecuniary penalty of $11,000 in respect of several contraventions of the Fair Work Act 2009 (Cth) (FWA).

Substantive decision

On 15 May 2020, the Industrial Magistrate found that the respondent contravened s 44 of the FWA in failing to pay the claimant untaken paid annual leave upon termination of employment, and in doing so, failed to comply with the National Employment Standards and contravened a civil remedy provision.

The respondent was ordered to pay $33,244 in accrued untaken annual leave.

Further, the respondent was found to have contravened s 535(1) and s 536(1) of the FWA in failing to keep and maintain certain prescribed records of employment and failing to provide pay slips during the course of the claimant’s employment, and contravened a civil remedy provision.

Supplementary Reasons for Decision

The claimant made an application for a pecuniary penalty pursuant to s 546(1) of the FWA in relation to the respondent’s failure to pay untaken annual leave, keep and maintain employment records, and provide payslips.

The claimant alleged that the respondent’s failure to keep and maintain the employment records and provide payslips went to the heart of the failure to regulate employment as contemplated by the National Employment Standards.

The claimant also contended that the respondent’s failure to provide pay slips extended beyond the individual and was a matter of public policy and public interest and supports a finding that it was a ‘serious contravention’.

The respondent argued that the contraventions were not deliberate but arose out of a lack of understanding and appreciation of certain obligations under the FWA.

Scaddan IM found that there was no evidence that the respondent either exploited the claimant or profited from its exploitation of the claimant. Scaddan IM also considered the small size of the respondent’s business, the fact that the respondent no longer employs employees and that the respondent did not attempt to hide any contraventions.

Scaddan IM found that the respondent’s contravention of s 535(1) and s 536(1) of the FWA was not a serious contravention and found that the following pecuniary penalties were proportional to the gravity of the respondent’s contravening conduct:

• $5,000 for the failure to pay untaken paid annual leave;
• $4,000 for failing to provide pay slips; and
• $2,000 for failing to keep and maintain employment records.

The substantive decision can be read here. 

The supplementary decision can be read here.