Details 

Created: 25 May 2020

The Occupational Health and Safety Tribunal has revoked the improvement notices issued to the same applicant by the Worksafe Inspector in matters in 2018 and dismissed the applications made in each matter to exempt the applicant from compliance with reg 3.54 of the Occupational Safety and Health Regulations 1996 (WA).  

The Tribunal, however, affirmed the improvement notice issued in 2019 and the WorkSafe Commissioner’s decision not to grant the applicant an exemption from the requirements of reg 3.54 of the Regulations.

The applicant, in all four applications, contended that they should be exempted from reg 3.54 on the grounds that it substantially complied with the regulations or that compliance was unnecessary.

Background

The applicant is a builder of multi-level buildings and has devised a system called the Hanssen Penetration System (HPS) to cover holes in the construction site and manage the risk of falls through the holes when the holes are not covered.

The applicant noted that reg 3.54 requires that a wire mesh be installed over the holes. The applicant conceded that the HPS does not fully comply with reg 3.54 in that there was no installation of wire mesh on any of their sites. However, the applicant argued that an exemption from the regulations ought to be granted because the HPS ‘substantially complies’ with the regulations.

The applicant contended that the HPS provides an equal or greater protection from the risk of injury, and that any risks or hazards associated with not having a wire mesh over the holes are addressed by alternate safety measures of the HPS.

The WorkSafe Commissioner opposed the exemption and submitted that the HPS does not achieve substantial compliance with reg 3.54 because it only complies with two of the three requirements of that regulation.

Improvement Notices

The Tribunal found that all sites subject to the 2018 applications have reached a point where there are no longer any holes or openings to which reg 3.54 applies. Therefore, the Tribunal found that affirmation of the improvement notices cannot be given practical effect and are revoked under s 51(5)(c) of the Occupational Safety and Health Act 1984.

However, the Tribunal found the site subject to the 2019 application still operational and issued orders that the applicant ensure all holes meet the requirements of reg 3.54, including the requirement to embed wire mesh over it.

Exemption Applications

The Tribunal noted that the WorkSafe Commissioner may exempt a person or workplace from the requirements of reg 3.54 if he is satisfied that there is ‘substantial compliance’. The Tribunal also noted that to find compliance with the requirements of the regulations unnecessary, it must be convinced that the HPS is safer or as safe as compliance with those requirements set out in the regulation such that it is not necessary to require compliance.

The Tribunal found, as the sites subject to the 2018 applications has reached a point where there are no longer any holes, no exemption can be granted for the 2018 applications. However, the Tribunal noted that revocation of the notices because of the completion of construction and the passage of time should not infer that the notices were not appropriate or justified.

The Tribunal then found on the evidence that there were significant weaknesses in the administration of the HPS at the operational site subject to the 2019 application. The Tribunal was not convinced that the implementation of the HPS rendered compliance with reg 3.54 unnecessary.

Orders

The Tribunal ordered that:

1. The improvement notices issued in relation to the 2018 Applications be revoked and the applications to exempt each matter be dismissed;
2. The improvement notice in the 2019 Application be affirmed and the applicant is directed to ensure all holes at the site are covered with wire mesh; and
3. The WorkSafe Commissioner’s decision to not grant the applicant an exemption from the requirements of reg 3.54 be affirmed.

The decision can be read here.

Details 

Created: 21 May 2020

The Full Bench has dismissed an appeal against the decision of the Industrial Magistrate on the basis that the appeal had no merit and the appellant, who was previously registered as a medical practitioner, had not challenged any findings of fact made by the Industrial Magistrate at first instance.

At first instance, the Industrial Magistrates Court (IMC) dismissed the appellant’s claim that the respondent, the North Metropolitan Health Service Board, failed to comply with cl 20(5) of the Department of Health Medical Practitioners (Metropolitan Health Services) AMA Industrial Agreement (Agreement) in relation to a contract completion payment. The Industrial Magistrate concluded that on a proper construction of cl 20(5) of the Agreement, to meet cl 20(5), a “medical practitioner” must be registered under the Health Practitioners Regulation National Law (WA) Act 2010 (Act).

As at the time of the cessation of the appellant’s fixed term contract, Scaddan IM found that the appellant was not so registered, ready, willing, and able to seek a new contract of employment with the respondent. Therefore, he did not qualify for a contract completion payment under cl 20(5) of the Agreement.

The appellant’s grounds of appeal were that the IMC made errors in law and facts in reaching the decision and that essential facts of the situation with respect to the appellant’s qualifications were ignored. The appellant maintained that the actions of the respondent were not fair, and the respondent had contravened its duty of good faith under s 42C of the Act.

The Full Bench noted that the appellant did not identify any alleged ‘errors in law and facts’ asserted in the Notice of Appeal and made no attempt to state how it was that the IMC made errors in the interpretation of the Agreement.

On this basis, the Full Bench was not persuaded that the appeal had any merit. It considered that Scaddan IM’s reasoning as to the interpretation of cl 20(5) of the Agreement to be entirely correct and she had made no error of principle.

The appeal was dismissed.

The decision can be read here. 

Details  Created: 15 May 2020

The Industrial Magistrate has dismissed a claim for redundancy payments on the basis that it was an abuse of process to relitigate the same issue against the same party in circumstances where that issue was refused by the Industrial Magistrates Court (IMC) in a previous claim. 

First Originating Claim

The claimant had initially lodged an Originating Claim in the IMC alleging the respondent failed to comply with the Freo Group Pty Ltd Maintenance and General Services Agreement 2016 (Cth) (EBA 2016) by failing to pay the claimant a redundancy payment under cl 20.8 of EBA 2016 and failing to pay in lieu of notice under cl 18.1 of the EBA 2016.

A preliminary issue was considered by the IMC in relation to the application of EBA 2016 and Reasons for Decision with respect to that preliminary issue were delivered at a later date.  

However, during the directions hearing, the IMC identified a number of issues concerning the application of EBA 2016 and that the application did not concern a claim for redundancy under the relevant provisions of the Fair Work Act 2009 (Cth) (FWA).

The claimant subsequently lodged an applicant to amend the claim (Claimant’s Application), seeking that the following be added:

‘8. In the alternative the respondent failed to pay notice and redundancy to the claim (as particularised above) pursuant to s 117 and s 119 of the Fair Work Act’.

The respondent opposed the Claimant’s Application.

The IMC refused the Claimant’s Application for various reasons, including that the claimant sought to introduce a new cause of action and had given no reason for delay in applying to amend the claim or why the provisions of the FWA had been overlooked.

The claimant then lodged a notice of discontinuance withdrawing the whole claim.  

Second Originating Claim (current application)

The claimant then lodged a second Originating Claim (Second Claim) alleging that the respondent contravened the FWA by failing to pay the claimant a redundancy payment under s 119 of the FWA and failing to a payment in lieu of notice under s 117 of the FWA.

The respondent sought the Second Claim be struck out or dismissed for reasons including that it was frivolous and vexatious, an abuse of the Court’s process, res judicata, and a waste of the Court’s resources where the claim was essentially a resubmission of argument that the claimant has had determined by the Court.

The claimant contended that the subject matter of the first claim had never been finally litigated as the IMC refused to allow the Claimant’s Application to amend the claim and, thus, the claimant’s current claim had not been determined at all.

The Industrial Magistrate found that, whilst acknowledging that from the claimant’s perspective there is no final judgment, the Second Claim ought to be dismissed as an abuse of process as it sought to litigate the same issue against the same party in circumstances where that issue was refused by the IMC in the first claim.

The Industrial Magistrate also found that the Second Claim was oppressive and unfairly revived previous failed litigation, and that it would not be efficient, economical, and expeditious for the claim to continue.

The decision can be read here. 

Details 

Created: 15 May 2020

The Commission has determined it has jurisdiction to hear the substantive claim of the applicant who claimed he had been denied a benefit for payments of a bonus under a previous contract of employment with the respondent.

The applicant’s initial contract, which had commenced in 2013 (2013 Contract), was terminated by agreement in 2017. The applicant and respondent then entered into a second contract in 2017 (2017 Contract), which did not include a term for bonus payment.  

At the termination of the applicant’s employment in 2019, the respondent denied the applicant’s request for bonus payments he submitted were due under the 2013 Contract.

The respondent objected to the Commission hearing on the basis that the applicant’s salary exceeded the prescribed amount found in s 29AA(5) of the Industrial Relations Act 1979 (WA) (Act). Section 29AA provides that the Commission must not determine a contractual benefit claim if the employee’s salary exceeds the prescribed amount.

The respondent also referred to reg 5(2) of the Industrial Relations (General) Regulations 1997 (WA) (Regulations), which sets out the method for calculating an employee’s salary for the purposes of s 29AA(5) of the Act. It argued that on proper construction of the Act and the Regulations, the relevant salary rate for the purposes of this matter was the salary paid at the time of the applicant’s dismissal in 2019, which was the amount under the 2017 Contract and over the prescribed amount.

The applicant argued that the benefit he claimed he was entitled to was provided in the 2013 Contract. He asserted that the relevant salary rate to be considered was the rate paid under the 2013 Contract, which was under the prescribed amount found in s 29AA of the Act.

The Commission rejected the respondent’s contentions that the relevant salary to be considered was the salary at the time of the applicant’s dismissal. Commissioner Walkington found s29AA of the Act to mean it is the employee’s salary under the contract under which the benefit is claimed that is relevant.

The Commission found that as the relevant salary rate provided under the 2013 Contract was under the prescribed amount, it therefore has jurisdiction to hear the substantive claim.

The decision can be read here.

Details 

Created: 15 May 2020

The Industrial Magistrate has dismissed a claim for unpaid wages alleged to be owed under an oral contract of employment as the claimant was found not to be an ‘employee’ of the respondent for the purposes of the Fair Work Act 2009 (Cth) (FWA).

The claimant alleged he was employed by the respondent pursuant to an oral agreement to assist in providing business knowledge for the respondent’s new business and act as a salesperson at the store for an extended period.

The respondent denied the claim and argued that the claimant was never employed by the respondent, but was given a total of $5,500 by the business owner as a goodwill gesture for introducing a customer and providing advice on how to improve the business.

The Industrial Magistrate found, on examination of the evidence provided, there was no employment agreement, written or oral, between the claimant and respondent. Scaddan IM found, therefore, that the claimant was not an ‘employee’ pursuant to the FWA and the Industrial Magistrates Court does not have jurisdiction to make an order for payment of alleged unpaid wages.

Scaddan IM noted that the claimant’s evidence objectively showed that there was no intention to create legal relations between the parties involving the performance of work.

The claim was dismissed.

The decision can be read here.