In a matter wherein the applicant claimed that her employer, the respondent, breached her contract of employment by unilaterally reducing her working hours, the respondent applied to the Commission for permission to submit additional evidence and submissions. The applicant opposed this request, arguing that the late submission of the respondent's evidence had compromised her ability to respond adequately, thus affecting the fairness of the proceedings.

Commissioner Walkington noted that the applicant had not provided a witness statement by the due date, and that it was this late submission that prompted the respondent’s request for the opportunity to submit further evidence.

The Commissioner decided to grant the respondent leave to submit further evidence and documents in order to ensure that the respondent had a fair and reasonable opportunity to present its case, in line with the principles of procedural fairness and the requirements of the Industrial Relations Act 1979 (WA).

The decision can be read here. 

The appellant seeks an extension of time to appeal an Industrial Magistrates Court decision under section 84 of the Industrial Relations Act 1979 (WA). The decision upheld the respondent’s Compliance Notice, requiring the appellant to pay accrued long service leave to an employee.

In the original decision, the appellant argued that the employee, who was initially employed as an apprentice under one contract, and then employed as an electrician under a new contract, was not due long service leave as he had not completed the required period of continuous employment. The appellant claimed there was a break in continuous employment between the contracts. The Industrial Magistrate disagreed, finding the employee’s work was continuous for a period of eight years, meaning the employee was entitled to pro rata long service leave upon termination. The Compliance Notice was therefore confirmed.

The appeal was advanced on a number of grounds, many of which were deemed inadequately particularised and unintelligible. Other grounds, including that the Industrial Magistrate had erred in her reasoning when interpreting the Long Service Leave Act 1958 (WA) were found to be without merit. Consequently, the Full Bench determined that the grounds of appeal were inadequate, dismissing the application to extend time for filing the appeal, and dismissing the appeal.

The decision can be read here. 

The applicant sought an order to stay a decision of the Commission, which declared that the respondent was denied a benefit under his employment contract and was entitled to receive $10,000, pending the determination of an appeal against that decision.

Chief Commissioner Kenner raised with the parties the prospect whether an agreement could be reached whereby the monies ordered to be paid in the original decision be paid into a trust account, pending the hearing and determination of the appeal, to which the parties agreed.

As a result, the Chief Commissioner then made an order and declaration that the Commission’s order pertaining to payment be stayed pending the hearing and determination of the appeal, and that the funds be paid by the applicant into a trust account pending the same.

The decision can be read here. 

The applicant, a member of the respondent union, applied to the Commission under section 66 of the Industrial Relations Act 1979 (WA) (IR Act) seeking the establishment of an Interim Union Council for the respondent, pending the obtaining of a section 71 certificate under the IR Act.

Previously, the respondent operated under a section 71 certificate which relieved the respondent of the need to hold general elections for office bearers, as officers elected to office in the union’s federal counterpart were deemed to hold the corresponding office in the respondent. However, after alterations were made to the federal union body’s rules leading to the abolition of offices, the Registrar notified the respondent that the section 71 certificate may no longer have effect, leaving the respondent without duly elected officers.

Chief Commissioner Kenner considered the applicant's standing under s 66 of the Act and determined that the establishment of an Interim Union Council was warranted. The applicant proposed that he, along with two other elected members of the union's Committee of Management, serve as the Interim Union Council. This group would be responsible for reviewing the respondent's rules and ensuring compliance with reporting obligations, with the goal of obtaining a new s 71 certificate.

Counsel for the applicant indicated that both proposed members of the Interim Union Council consented to their roles. The Chief Commissioner found the applicant's request to be reasonable and in line with the necessary governance procedures and issued orders accordingly.

The decision can be read here. 

The applicant agency group requested the Commission to clarify the meaning of an exemption in the scope clause of the Crisis Assistance, Supported Housing Industry – Western Australian Interim Award 2011 (CASHI Award). The CASHI Award's scope is defined in clause 4.1, which adopts an industry coverage approach, referencing the crisis assistance and supported housing industry. Clause 4.2 outlines four exemptions from the scope, including services specifically for aged, infirm, physically, psychiatrically, or developmentally disabled persons, persons suffering from drug or alcohol addiction, or children under twelve years old.

The applicant posed several questions regarding the exemption, including whether "supported and/or related support services" should be read as "supported housing and/or related support services" and whether “services specifically for children under twelve years old” include those provided to such children in their own right or only incidentally to children who are dependents of adults or older youths. The core issue was the breadth of the carve-out, questioning whether an employee engaged in crisis assistance and supported housing services for children both under and over twelve years old is included in the scope or exempt.

Senior Commissioner Cosentino concluded that the phrase "supported and/or related support services" in clause 4.2(3) is nonsensical due to the omission of a word. After considering the text of the CASHI Award and its origins, the Senior Commissioner determined that the missing word is "housing" and ordered the CASHI Award to be varied accordingly. Regarding the phrase "specifically for children under the age of twelve years," the Senior Commissioner found ambiguity and concluded that the services must be intended to be provided to the specified categories of people, with the word "specifically" meaning that the services are targeted towards the described group, and not for that group solely to the exclusion of all others.

The decision can be read here.