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Commission Dismisses the Australian Nursing Federation’s Application to Dismiss Application Alleging Rule Violations

Background

Members of the respondent union, the Australian Nursing Federation (ANF), filed applications under s 66 of the Industrial Relations Act 1979 (WA) alleging the respondent’s non-compliance with its rules. The applicants sought relief under s 66(2)(a) of the Act for their claim that the respondent breached its rules. The claims were initially unspecified and similar, leading to a consolidation and further directions for particulars.

Procedural History

After a directions hearing, the applicants were directed to provide specific details of their claims, and the respondent filed an amended response contesting the allegations. The respondent subsequently sought dismissal of the claims under s 27(1)(a) of the Act, arguing that the grievances presented by the applicants were not within the scope of s 66 and amounted to a complaint about the respondent’s management rather than a breach of rules.

Contentions of the Parties

The respondent, in its application to dismiss, contended that the claims were trivial, lacking substance, and essentially represented a challenge to legitimate decisions made by the respondent’s Council. It argued that the applicants, who were unsuccessful candidates for election, were attempting to involve the Commission in the day-to-day management of the union.

Specifically addressing the individual claims:

  1. Claim 1: The respondent argued that Ms Reah, the Secretary, met the eligibility criteria for membership.
  2. Claim 2: The respondent contended that Ms Reah was a financial member, and her eligibility was not in question.
  3. Claim 3: The respondent asserted that the persons mentioned were not members of the union and not eligible, contradicting the applicants' claims.
  4. Claim 4: The respondent argued that this claim was an attempt to re-litigate issues already addressed in a previous case.
  5. Claim 5: The respondent defended its actions related to annual general meetings, citing pandemic-related restrictions and logistical challenges.
  6. Claim 6: The respondent disputed allegations of improper exercise of powers, including the authorisation of signatories.

 

 

Consideration

The Chief Commissioner noted that Claims 1, 2, 3, 5, and 6 raised substantial issues that required examination on their merits. The Chief Commissioner expressed scepticism about the triviality of the claims and emphasised the importance of addressing serious questions of compliance with the respondent’s rules. The Chief Commissioner dismissed the application to dismiss these claims.

However, regarding Claim 4, which alleged non-compliance with Rule 3 of the respondent’s rules, the Chief Commissioner found that it had no prospect of success and dismissed this particular claim. The claim concerned orders that the Chief Commissioner made in Registrar WAIRC v Australian Nursing Federation Industrial Union Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315; [2022] WAIRC 00684; (2022) 102 WAIG 1327, which were the subject of proceedings in Fenn v The Australian Nursing Federation, Industrial Union of Workers Perth and Ors [2023] WAIRC 00806; (2023) 103 WAIG 1793

The Chief Commissioner ordered that the applications, except as to Claim 4, proceed to be heard on a date to be fixed, with a directions hearing to facilitate the hearing of the applications on their merits.

The decision can be read here.

Farm Employees’ Award Scope Varied

The Commission in Court Session has varied the Farm Employees’ Award’s scope clause under s37D of the Industrial Relations Act.

The award’s scope clause contained exclusions that referred to repealed or obsolete industrial instruments, and organisations who no longer exist.

The award’s scope clause defined its scope by reference to “farms” and specified activities conducted on farms, but the definition was not comprehensive. This means that there was no State award coverage for some farm workers.

The variations contemporise the definition of “farming industry”, based on the definition in the federal Pastoral Industry Modern Award 2020. The variations mean that, for the first time, the dairy industry and the aquaculture industry will be covered by the Award.

The Commission in Court Session has deferred the commencement of the variations as they apply to the dairy industry, to a later date still to be announced. This is to allow the dairy industry time to implement any changes necessary as a result of award coverage.

The decision can be read here.

Commission Dismisses Prison Officer's Claims Against Union Expulsion

The Commission dismissed the applicant's claims, emphasising the validity of the expulsion, as the respondent acted within its rules and the applicant failed to utilise available avenues for his defence and appeal.

The case centred around an incident at Wandoo Rehabilitation Prison on 26 November 2020, involving the applicant, a prison officer accused of threatening a colleague who was the partner of the respondent's Secretary. The applicant, seeking clarification, wrote to the respondent on 23 December 2020, but the response lacked detail. An investigation was reopened on 11 January 2021, with the applicant alleging the respondent's Secretary influenced it. On 2 March 2021, the respondent's President informed the applicant of his expulsion as a union member for non-attendance at a State Council meeting on 20 January 2021.

The applicant argued denial of natural justice, accusing the Secretary of misusing his influence. He claimed the respondent failed to observe its rules and sought an acknowledgment of the expulsion's unfairness and $80,000 in legal costs. The respondent contended the applicant’s claims were without merit   and he failed to adhere to its rules.  It contended the State Council, after investigating, upheld the complaint, leading to the expulsion. The respondent argued the applicant had sufficient information, was given an opportunity to defend himself and failed to appeal within the stipulated time.

The Chief Commissioner dismissed the applicant's claims, citing a lack of jurisdiction to award compensation under s 66(2) of the Act. The decision emphasised that the State Council had discretionary power to provide a member with legal assistance, and the applicant's expulsion rendered him ineligible. The Commission found the expulsion valid, concluding that the respondent acted within its rules, and the applicant failed to utilise available avenues for his defence and appeal.

The decision can be read here.

Commission Upholds Demotion and Transfer of Senior Prison Officer for Night Shift Misconduct

The Commission upheld the Minister's decision to demote and transfer the applicant, finding his conduct during the night shift fell short of the expected standard for a Senior Prison Officer, and his lack of contrition and insight rendered him unsuitable for the role.

The applicant, a Senior Officer at Wandoo Rehabilitation Prison, appealed against the Minister's decision to demote and transfer him, based on allegations of breaching the Department of Justice Code of Conduct during a night shift on 30 January 2021. The Minister contended that the applicant failed to remain alert and vigilant, pointing to instances of not monitoring phone calls and appearing as though he was sleeping.

In his defence, the applicant argued that his actions, including briefly removing his shoes and closing his eyes in a dimly lit staff room, were minor violations and that he was sufficiently alert during the shift. He emphasised his 30 years of service without prior misconduct, and questioned the severity of the penalty, suggesting a lack of insight on the Minister's part.

Commissioner Emmanuel found the penalty of demotion and transfer to be proportionate and fair, noting that the applicant failed to meet the expected standard for a Senior Prison Officer during night shift. Despite being an isolated incident, the Commission deemed the applicant's conduct sufficiently serious to warrant the imposed penalty, expressing concern over his lack of contrition and insight. The decision emphasised that even with a lengthy work history, the applicant demonstrated his unsuitability for the Senior Officer role based on his own evidence and submissions.

The decision can be read here.

Commission Rules in Favor of the Applicant, Citing Unfair Treatment in Vaccination Directive Compliance

The Commission ruled in the applicant's favour, ordering the reinstatement of the applicant to her position, and compensation, citing inconsistent treatment based on timing as arbitrary and unfair in comparison to another non-compliant employee.

The applicant, a Drug Detection Officer at Bunbury Regional Prison, was summarily dismissed for refusing to comply with the vaccination directive issued during the COVID-19 pandemic. Despite conceding her failure to comply, she contested her dismissal on the grounds of perceived unlawfulness of the directive, her genuinely held but mistaken belief, and alleged unfair treatment compared to other non-compliant employees, particularly citing the case of Ms Beere, another employee.

Senior Commissioner Cosentino found in favour of the applicant, ordering the employer to pay the applicant for lost remuneration and to reinstate her to the position she held as of 26 May 2022. The Commission compared the applicant's case to that of Ms Beere, noting similar circumstances, understanding of the vaccination directive, breach, charges, and preliminary findings proposing dismissal. The key distinction leading to inconsistent treatment was the delay in recommencing the disciplinary process for Ms Beere, allowing her to return to work after the vaccination directive was lifted. The Commission deemed this timing-based inconsistency arbitrary and unfair, emphasising the need for fair and consistent treatment in disciplinary matters, irrespective of the ultimate outcomes for individual cases.

The decision can be read here.

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