Details 

Created: 14 April 2020

The Western Australian Industrial Relations Commission (Commission) will issue a General Order under s 50 Industrial Relations Act 1979 (WA) amidst the COVID-19 pandemic that allows state system employees to take unpaid pandemic leave, annual leave on half pay and annual leave in advance.

The Commission has implemented these flexible leave arrangements to assist businesses to continue to operate and to preserve employment and the continuity of employment for the benefit of those businesses, their employees and the economy generally.

The terms of the General Order will provide flexibility and leave options to be available to employees for:

1. Unpaid pandemic leave of up to two weeks if the employee is required, by government or medical authorities or acting on the advice of a medical practitioner, to self-isolate or is otherwise prevented from working by measures taken by the government or medical authorities in response to the COVID-19 pandemic;
2. Double annual leave at half pay, by agreement between the employer and employee; and
3. Annual leave to be taken in advance, by agreement between the employer and employee.

These measures will operate from today until 31 July 2020 and may be extended.  

The General Order will apply to all private sector employers and employees in the State system, whether covered by an award or not. State system employers generally include sole traders, partnerships, some trusts, some local government agencies and some non-for-profit organisations.

Where an award or industrial agreement contains a more beneficial term than the General Order, the award will apply. Otherwise, where there is conflict between the terms of the General Order and the award, the terms of the General Order will apply.

The Commission issued the Reasons for Decision and the Minutes of Proposed General Order at 10.00am on 14 April 2020.

The Commission has invited any submissions in writing by 2.00pm on 14 April 2020 as to whether the Minutes reflect the Reasons for Decision.

The Reasons for Decision can be read here.

The General Order can be read here. 

Details 

Created: 31 March 2020

The Public Service Appeal Board (Board) has unanimously dismissed an appeal and found that the appellant was not dismissed from her employment, but rather that her fixed term contract had ended in accordance with the parties’ agreement.

The appellant, a government officer, was employed on a series of fixed term contracts. After her final contract ended, the appellant filed an appeal under s 80I(d) of the Industrial Relations Act 1979 (WA) against what she said was the respondent’s decision to dismiss her. She argued that she was unfairly dismissed because the respondent did not offer her a further fixed term contract or a permanent position.

The respondent argued that the appellant was not dismissed but was employed on a fixed term contract that came to an end by the effluxion of time. The respondent claimed there was no dismissal and the Board did not have jurisdiction to hear and determine the appellant’s appeal.

In deciding whether it had jurisdiction to hear the appeal, the Board had to determine whether the appellant was dismissed.

The Board applied relevant legal principle and found that it was not persuaded that the appellant was dismissed. It found that the failure to offer a subsequent contract was not a dismissal and that the employment ended in accordance with the final fixed term contract. The Board found that it was the effluxion of time in accordance with the parties’ agreement, and not any action on the part of the respondent, that resulted in the contract and the employment relationship ending.

The Board dismissed the appeal for want of jurisdiction.

The decision can be read here. 

Details  Created: 27 March 2020

The Full Bench has unanimously dismissed an appeal against a decision of the Road Freight Transport Industry Tribunal (Tribunal) that found that the respondent lawfully terminated a Cartage Agreement (Agreement) with the appellant after the appellant’s conduct was found to constitute serious misconduct as well as a serious safety breach of the Agreement.

At first instance, the Tribunal found that by continuing to move his truck towards another driver when he was, or should have been, aware that the driver was in front of his truck, the appellant’s conduct constituted serious and wilful misconduct or alternatively, reckless indifference.

The Tribunal found that the appellant’s conduct constituted a serious safety breach for the purposes of the Agreement and that the respondent’s ground for the termination of the Agreement was justified at the time the decision was made and it was not unlawful.

On appeal, the appellant argued that the Tribunal’s findings were not supported by the evidence or did not take account of certain matters. The appellant also argued that certain conclusions made by the Tribunal were in error.

Upon viewing the footage of the incident, the Full Bench unanimously observed that the appellant had provoked the other driver, and then, after being infuriated at being gestured to, deliberately drove in the direction of the other driver with his truck contacting the other driver. He was not in a blind spot. The Full Bench found that there was no error in the Tribunal’s findings nor in the acceptance and rejection of certain evidence. The Full Bench determined that they were findings that were open to the Tribunal to make based on all the evidence. Further, it found the conduct was serious misconduct and wilful.

The appeal was dismissed.

The decision can be read here.

Details  Created: 17 March 2020

The Full Bench has unanimously granted an extension of time for an appellant who filed a Notice of Appeal out of the time limit prescribed by the Industrial Relations Act 1979 (WA) (Act) and had not filed appeal books as required by the Industrial Relations Commission Regulations 2005 (Regulations).

At first instance, the Industrial Magistrate’s Court dismissed the appellant’s claim that the respondent 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 learned Industrial Magistrate concluded that on a proper construction of cl 20(5) of the Agreement, the appellant did not qualify for a contract completion payment under the clause.

The appellant lodged a Notice of Appeal against the decision of the Industrial Magistrate’s Court three days outside the time limit of 21 days under s 84(3) of the Act. The Notice of Appeal was defective and was not accepted for filing by the Registry until 18 days outside of the 21-day time limit.

The Full Bench noted that, for the Full Bench to consider the appeal, the appellant must persuade the Full Bench that it should extend the prescribed 21-day limit, under s 27(1)(n) of the Act.

The appellant also failed to file appeal books, as required by reg 102(10) the Regulations.

The appellant then filed a Form 1A – Multipurpose Form in which he sought an “extension of time”. In his reasons for the request, the appellant cited medical reasons and that he required assistance to complete forms as he could not afford a lawyer. At the hearing, the appellant clarified to the Full Bench that the Form 1A was filed in order to seek an extension of time for both the Notice of Appeal and to file the appeal books.

The Full Bench applied legal principles applicable to extensions of time to appeal and found that having regard to the relatively short period of the delay in filing the Notice of Appeal, the reasons for the delay and that there may be an argument as to the proper construction of cl 20(5) of the Agreement, it would grant an extension of time.

The Full Bench issued an order that the appellant file the appeal books within seven days.

The decision can be read here.

Details  Created: 06 March 2020

The Occupational Health and Safety Tribunal (Tribunal) has reviewed and revoked an improvement notice issued to the applicant for contravening the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations).  Details  Created: 06 March 2020

The applicant contended that they ought not to be held totally responsible for the actions of their crane driver in parking the crane on the road which resulted in a major road being closed.

Upon being issued an improvement notice by a Worksafe Inspector, the applicant applied to the Worksafe Commissioner for a review of the improvement notice, which was affirmed by the Commissioner. The applicant then referred a request for a review of the improvement notice by the Tribunal.

The respondent, Worksafe, submitted in the proceedings before the Tribunal that the improvement notice ought to be revoked on the basis that neither its affirmation nor affirmation with modification can be given effect.

The applicant sought the continuation of the proceedings so that the Tribunal may determination the requirements of the OSH regulations and the obligations of them as employers should a similar situation occur in the future.

The Tribunal found that the improvement notice ought to be revoked on the basis that it was not possible to affirm or modify the requirements of the improvement notice as the site for which the improvement notice concerned no longer existed.

The Tribunal also found that it ought to refrain from further hearing as it does not have the power to inquire generally into similar circumstances that may arise in the future.

The improvement notice was revoked.

The decision can be read here.