Details 

Created: 09 July 2020

The Commission has dismissed a claim for a denied contractual benefit by an employee of a stevedoring company who contended that by standing him down, the company had breached the implied terms of his contract of employment.

The applicant commenced employment as a Guaranteed Wage Employee in May 2018.

The terms of the applicant’s contract provided that, under the Qube Ports Pty Ltd Port of Dampier Enterprise Agreement 2016 (Agreement):

• he would be offered work on a “totally irregular basis” according to the company’s requirements which varied each day;
• the applicant had to make himself available under the Agreement; and
• his ongoing employment was conditional on work being available, his availability to work and meeting the respondent’s performance standards.

On 1 April 2019, the applicant was stood down from work following a safety incident and was subject to a workplace investigation but returned to work on 17 May 2019. During the time of the stand-down, the applicant continued to receive his minimum guarantee payment under the Agreement.

Contentions

The applicant contended that by standing him down between 1 April and 17 May 2019, the respondent breached the implied terms of the applicant’s contract and was liable for any loss or damage suffered by him. The applicant argued that:

1. it was an implied term of his contract that the respondent had to cooperate with him;
2. the respondent had a general duty of good faith towards him; and
3. it was an implied term of his contract that the respondent would provide him with the opportunity to work and earn remuneration and would not act in a manner to deprive him of the benefit of his contract.

The respondent maintained that no such terms could be implied into the applicant’s contract of employment.

Consideration

Senior Commissioner Kenner rejected the applicant’s claims, distinguished several authorities advanced by the applicant, and noted that the contract was not of a kind where the applicant was to be afforded the opportunity to work, as in the case of an actor or entertainer.

Kenner SC found that there was nothing in the contract to suggest that the employer would be under any contractual duty to do other anything other than pay the employee under the contract and the Agreement.

Kenner SC also found that even if an implied term of good faith did apply to the applicant’s contract, it was not evident how a stand-down (on pay) whilst the employer investigated a workplace safety incident, would breach such a term.

The application was dismissed.

The decision can be read here.

Details 

 Created: 03 July 2020

The Commission has issued an order to remove the requirement for strict compliance with r 13(1) of the rules of the Independent Education Union of Western Australia, Union of Employees (the Union), to enable the Union to delay its Annual General Meeting (AGM) until July 2020.

Rule 13(1) of the Union’s rules requires that the AGM be held no later than six months following the end of the Union’s financial year. The financial year ended on 31 December 2019.

The applicant, the President of the Union, said there were two reasons for the Union being unable to hold the AGM within the required time.

The first was the recent disruptions connected with the COVID-19 pandemic. The second was the sudden departure of the Union’s Secretary in May 2020, who was responsible for the day to day operation of the Union.

Chief Commissioner Scott also noted that the Independent Education Union of Australia, WA Branch, is also required to hold its AGM no later than 30 June each year, and that it is usual practice for the Union and the WA Branch to hold their AGMs concurrently each year. Scott CC observed that the Registered Organisations Commission has granted an extension of time for the WA Branch to hold its AGM before 31 July 2020, for the same reasons as the applicant put to the Commission in respect of the Union.

Scott CC considered the circumstances of the case, including the fact that the WA Branch has received an extension of time, and found that the circumstances clearly made it difficult for the Union to meet its obligation under r 13(1). Scott CC found that the circumstances nor their consequences for arranging the meeting was reasonably foreseeable.

Scott CC has issued an order authorising the Union to not observe r 13(1) by 30 June 2020 and allow it to conduct its AGM by the end of July 2020.

The decision can be read here.

Details Created: 02 July 2020

The Industrial Magistrate has ordered that pecuniary penalties be paid to the claimant, a property manager, in relation to her claim for long service leave entitlement (LSL Entitlement) and wages owed for her last week of employment.  

The claimant was employed by the respondent from December 1996 to March 2016. In May 2016, the claimant made a claim for statutory entitlements totalling $51,848.76 on account of her LSL Entitlement and wages of $1,885.41 owed for her last week of employment.

After the respondent failed to comply with directions to lodge witness statements, a default judgment was entered. In March 2020, orders were made that the respondent pay the amounts claimed by the claimant together with pre-judgment interest.

The claimant’s case also included a claim for pecuniary penalties for contravention of the Fair Work Act 2009 (Cth) (FW Act) against the respondent.

In determining the appropriate pecuniary penalties against the respondent, Industrial Magistrate Flynn considered relevant legal principle, the nature and extent of the contravening conduct, the relatively large size of the entitlement, and the length of delay in payment.

However, Flynn IM also gave significant weight to the fact that approximately two-thirds of the entitlement had already been paid to the claimant, and an amount equating to the balance had been remitted to the ATO.

Flynn IM determined that a penalty fixed in the sum of $13,500 (25% of the maximum penalty) in respect to the LSL Entitlement, and $1,000 for the unpaid wages entitlement, was a proportionate reflection of the gravity of the contravening conduct.

His Honour dismissed the claimant’s applications for pecuniary penalties against the respondent’s director and that he be held to be jointly and severally liable for costs in his individual capacity.

Flynn IM also considered whether the respondent ought to pay costs under the FW Act on the basis that the respondent’s defence of the claim was an ‘unreasonable act that caused the claimant to incur the costs’.

His Honour found that the respondent had demonstrated an unwillingness to consent to an order for payment of the claimant’s entitlements after the determination of a related Supreme Court proceeding in November 2019, which subsequently caused the claimant to incur costs to continue to prosecute the proceedings.

An order was made that the respondent pay the pecuniary penalties and costs totalling $21,043 to the claimant.

The decision can be read here.

Details  Created: 26 June 2020

The Commission in Court Session has delivered its decision in the 2020 State Wage Case. The Commission increased the State Minimum Wage and award rates of pay in the State industrial relations system by 1.75%. However, in noting the high level of uncertainty that has resulted from the impacts of the COVID-19 pandemic, the Commission has concluded that it is appropriate to delay the increases until the first pay period after 1 January 2021.

The Commission has also adjusted the Statement of Principles.

In its decision, the Commission took account of the impact of the COVID-19 pandemic on the Western Australian economy, employers and employees, business levels, and the cost of living. It noted the high level of unemployment and the prospect of reduced inflation. The Commission also considered the capacity of employers as a whole to pay any increase, but also the need to contribute to improved living standards for employees.

The Commission concluded that this increase and its deferral for six months will allow time for the effects of the lifting of restrictions to develop and stabilise.

The Minute of Proposed General Order was handed down at 10.00AM, Friday 26 June 2020.

The Commission’s statement in relation to its decision can be read here.

A full copy of the Commission’s decision can be read here.

Details 

 Created: 25 June 2020

The Commission will deliver its 2020 State Wage decision in the Commission’s Registry at 10:00 AM on Friday, 26 June 2020.

More information about the 2020 State Wage Case can be found here.