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Created: 20 December 2019

The Full Bench has unanimously found that the Industrial Magistrates Court had no jurisdiction to enforce the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Award) under s 83(1)(e) of the Industrial Relations Act 1979 (WA) where the Industrial Magistrate relied on a declaration of the Commission that has since been varied. 

The appellant had appealed against the dismissal of her claim for overtime payments on the contention that she was entitled to be paid overtime for additional hours of work. The appellant argued that the Industrial Magistrate erred in her construction of the relevant provisions of the Award. Despite the grounds of appeal being limited in scope to this issue, another matter arose for consideration by the Full Bench. 

The Industrial Magistrate’s decision at first instance proceeded upon the understanding that, at that time, the Commission had issued a declaration in another matter (Samuel Gance) that the Award applied to both employers and employees in the retail pharmacy industry, which meant both the appellant and respondent were covered by it.  

The declaration in Samuel Gance was subject to a separate appeal to the Full Bench. The Full Bench upheld the appeal and the declaration made by the Commission, that the Award applied to the retail pharmacy industry, was reversed. The effect of the reversal is that from April 1995, the Award must be taken to have ceased to have application to the retail pharmacy industry.

Due to this, the Full Bench considered the effect of the Samuel Gance Full Bench decision on the decision of the Industrial Magistrate and this appeal.

The appellant contended that an appeal to the Full Bench under s 49 of the Act, which refers to appeals from the Commission’s decisions, is to be heard as a strict appeal. An appeal in the strict sense, in determining whether the court made an error, is limited to considering the evidence and law as it stood at the time of the proceedings at first instance before the court and at the time of court’s decision. It does not, except in rare circumstances, consider any changes of law or new evidence.

The respondent submitted that the effect of the decision of the Full Bench in Samuel Gance in reversing the declaration does apply to the case at hand. The respondent contended that the Full Bench is to hear the appeal as a rehearing, which means it can consider other material and is required to apply the law as it stands when it hears and determines the appeal. The respondent relied on s 84(4) of the Act, which empowers the Full Bench to vary or amend the decision of the Industrial Magistrates Court.

In its consideration of s 49 of the Act, the Full Bench noted that existing case law did not expressly conclude whether an appeal under s 49 is a strict appeal or a rehearing. On application of existing case law and legal principle, the Full Bench ultimately concluded that, whilst not expressed in the statute, an appeal to the Full Bench under s 49 involves a rehearing. It is for the Full Bench is to reach its own view on all the evidence and the materials before the Commission, subject to error at first instance being established.  

In the Full Bench’s consideration of s 84 of the Act, it was noted that appeals to the Full Bench under that section from a decision of the Industrial Magistrates Court proceed largely in the same manner as do appeals from the Commission. As with appeals to the Full Bench under s 49 of the Act, appeals to the Full Bench under s 84 should also be considered as a rehearing. Importantly, as with s 49, on an appeal under s 84, error, of either law or fact or both, must be established for the Full Bench to invoke its powers under s 84(4).

The Full Bench found that the current law, in terms of the application of the Award to the retail pharmacy industry, must now be taken to be in accordance with the declaration made by the Full Bench and to operate in accordance with its terms. The Full Bench was bound to apply the declaration to the effect that the Award does not extend to the retail pharmacy industry, and therefore that the Award did not apply to the appellant and the respondent at all material times. The Full Bench found that the appellant had no standing to seek enforcement of the Award.

The decision can be read here.

Details 

Created: 20 December 2019

The Commission has dismissed a denied contractual benefits claim made by a Store Manager who alleged that she was entitled to the payment of commissions and a salary increase.

The Store Manager claimed that the salary increase was discussed at her interview for the position as well as contained in an email to the applicant from the recruitment agency. Walkington C also considered the respondent's unchallenged evidence that the recruitment agency was a third party and not able to make representations on its behalf. Walkington C determined that a review of salary does not guarantee an increase and that this benefit was not contained in the contract of employment.

Walkington C also dismissed the Store Manager's claim for a commission payment. She decided that it was not an implied term of the employment contract, a variation to the contract of employment or a collateral contract. Walkington C found that there was no evidence before the Commission to suggest that the payment of commissions was an implied term based on widely-known industry practice or that commissions were paid based on the gross profit per week. Walkington C then dismissed the contention that the contract of employment was varied to include a term for in circumstances where a table for commission payments was provided to the Store Manager.

Finally, Walkington C dismissed the claim that there was a separate collateral contract and she found that there was no evidence before the Commission that either established an intent to create legal relations, or, set out the arrangements between the respondent and the recruitment agency.

The Commission dismissed the application.

The decision can be read here.

Details 

Created: 18 December 2019

The Commission has dismissed an unfair dismissal application where the applicant alleged that the conduct of the respondent and its staff forced her to resign from her employment.

On 14 January 2019, the applicant attended a meeting with the respondent's practice manager to discuss complaints about her behaviour. Following this meeting the applicant left the workplace and later provided medical certificates that stated she was unfit for work until 3 February 2019. On 22 January 2019 the applicant sent a letter of resignation with immediate effect to the respondent. Commissioner Walkington considered a jurisdictional question raised by the respondent about whether the letter of resignation sent by the applicant was a voluntary resignation.

Walkington C considered that the two versions of events from the meeting on 14 January 2019 differed, but that on either version it was not inappropriate for the practice manager to discuss the concerns that colleagues held for the applicant's attitude and conduct. The Commissioner found that the respondent's conduct did not result directly or consequently in the termination of the applicant's employment. Further, Walkington C held that even if the applicant had written the letter of resignation in an emotional state, she had not resigned in the heat of the moment because she had also sent a second letter on 25 January 2019 after she had had time to reflect and consider her options. This second letter did not revoke the previous letter of resignation and did not express any regret that the applicant may have had in resigning.

Walkington C found that although the applicant was clearly unwell and stressed, the respondent was entitled to accept her letter of resignation, particularly as it had been confirmed by the second letter. The Commission dismissed the claim for lack of jurisdiction.

The decision can be read here.

Details 

Created: 12 December 2019

The Industrial Magistrate has dismissed a geoscientist's claim for the payment of an incentive bonus for the period of 2001 to the first quarter of 2005 pursuant to the Industrial Relations Act 1979 (WA) (the IR Act) or common law, and, for the payment of overtime hours worked from 4 January 2011 to 3 January 2017 pursuant to the Professional Employees Award 2010 (Cth) (the Cth Award) or the Western Australian Professional Engineers (General Industries) Award 2004 (WA) (the State Award).

Industrial Magistrate Scaddan considered when the cause of action accrued for the incentive bonus and overtime claims. Her Honour found that the incentive bonus was paid when it fell due and that the last date that the payment would have been paid but was not was in 2005. As this claim was lodged 13 years after the last date of non-payment of the bonus and a six year limitation period applied under the IR Act, Fair Work Act 2009 (Cth) (the Cth Act) and Minimum Conditions of Employment Act 1993 (WA) (MCE Act) the claim was barred by statute and consequently dismissed by Scaddan IM. Her Honour added that the Industrial Magistrate's Court does not have jurisdiction to consider the claimant's common law claim.

Turning to the alleged non-payment or underpayment of overtime claim, Scaddan IM found that each instance of the alleged failure to pay overtime was its own separate cause of action. As the claimant's salary was paid on the 15^th of each month, the first offence was on the 15^th of January 2011, being the first month that the claimant alleged that they had been underpaid for, and then the 15^th of each month thereafter. Scaddan IM also held that the same limitation period that applied for the incentive bonus payment would apply to the claimant's claim for overtime and consequently dismissed the part of the claim that related to the payment of overtime prior to 19 December 2012.

As for the remaining part of the claim, for overtime for hours worked in excess of 38 hours per week, Scaddan IM noted that she was only required to consider the terms of the Federal Professional Employees Award 2010 (Cth) (the Cth Award) as this was all that claimant had relied on in evidence and submissions. Her Honour found that the respondent could not have contravened the Cth Award as the claimant's claim had not referred to any clause within the Cth Award, and, the Cth Award does not contain any provision for the payment of an hourly rate for hours worked over 38 hours a week. In the alternative, the claimant had not proven to the requisite standard that he had not been paid the appropriate amount of overtime because he only provided salary estimates and that these estimates were well in excess of the 2019 minimum wage contained in the Cth Award.

Scaddan IM considered that as the claimant's claim related to the Cth Award, and no other industrial instrument or order exists that would enable the IR Act or MCE Act to apply, any claim under the IR Act or MCE Act could not be enforced by the Industrial Magistrate. Further, as the claim for overtime it is not considered a minimum condition of employment the MCE Act does not apply.

The decision can be read here.

Details 

Created: 11 December 2019

The Commission has upheld an application that sought the review of a decision of the Construction Industry Long Service Leave Payments Board (the Board). The Board's decision required that the applicant register as an employer under the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act), an Act providing for paid long service leave to employees engaged in the construction industry. The applicant argued that they should not be obligated to register as an employer with the Board because they do not engage employees 'in the construction industry' but rather engage technicians under the Telecommunications Services Award 2010 (Cth) (the Award).

The obligation on an employer to register under the Act does not depend on the employer being engaged in the construction industry, but instead on the employer employing persons as employees who are engaged in the construction industry.

To determine whether the applicant employs employees in the construction industry, Senior Commissioner Kenner considered this question in two steps. Starting by addressing the second of the two steps, the Senior Commissioner was satisfied that the work of the applicant's employees can be characterised as work in the construction industry because it fell within the meaning of "telegraphic" contained in the Act's definition of construction industry. Returning to the first step, that the applicant's employees are employed in a classification of work in one of the prescribed industrial instruments under the Construction Industry Portable Paid Long Service Leave Regulations 1986 (WA) (the Regs), the Senior Commissioner considered that this step required him to be satisfied that the applicant's employees are employed in a classification of work referred to in the awards contained in Schedule 1 to the Regs. The Senior Commissioner considered the definition of employee in the Act and that it required that the applicant's employees have more than a passing association with the work identified in the list of at least 11 classifications from nine awards that were cited by the respondent as possibly applying to the applicant. The Senior Commissioner concluded that no classifications in any of the awards presented by the respondent covered the work performed by a "telecommunications technician" or "telecommunications trainee" as described and defined in the Award.

The Commission upheld the application to review the respondent's decision after the Senior Commissioner was not satisfied that the applicant was an employer, as defined in the Act, who engaged employees in the construction industry. 

The decision can be read here.