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Commission Dismisses Application Following Revocation of Employee’s Reprimands

The Commission dismissed the application, stating that with the revocation of reprimands, there was no longer a decision for him to refer to the Commission, and he lacked standing to pursue an application under the relevant section of the Act.

The respondent accused the applicant of misconduct as a relief teacher at Butler Primary School, leading to disciplinary proceedings. After initially proposing a reprimand, the respondent later revoked the reprimands, deciding to take no further action on the allegations due to concerns about the potential stress on student witnesses and resource implications. The respondent then applied for the dismissal of the proceedings, raising a jurisdictional objection regarding whether the matter qualified as an industrial matter.

The applicant, acknowledging the revocation of reprimands, withdrew his application to refer the matter to the Commission but argued that the Commission's jurisdiction still applied for several reasons, including potential violation of the Industrial Relations Act 1979 (WA) and being harshly, oppressively, or unfairly treated. The respondent contended that, with the revocation of reprimands, there was no longer a decision to take disciplinary action, and the endorsement on the applicant's employment record was not disciplinary but an administrative part of the employment process.

Commissioner Tsang dismissed the application, citing that when the respondent revoked the reprimands, there was no decision left for the applicant to refer to the Commission. It clarified that s 23(3)(e)(ii) of the Act was not relevant to the question of jurisdiction and that the applicant lacked standing to pursue an application under s 29(1)(c) of the Act, as he had not been dismissed. The Commission emphasised that neither estoppel nor the parties could grant jurisdiction in the absence of grounds, and there was no evidence of a promise made by the respondent that the applicant relied upon to his detriment.

 

The decision can be read here.

Full Bench Determined Referred Questions of Law Regarding Registration of the City of Cockburn Enterprise Agreement 2022.

The Full Bench concluded that registering the Agreement, including Clause 5, which asserted the Agreement's superiority over inconsistent award terms, aligns with legislative intent; while Clause 6, allowing Individual Flexibility Arrangements, would be inconsistent with the Industrial Relations Act, rendering it invalid if registered. Additionally, the Full Bench found that the Commission's power to require variation of an agreement is limited to section 41(3).

 

Background:

The City of Cockburn Enterprise Agreement 2019 – 2022, initially registered under the Fair Work Act 2009 (Cth), became a new State instrument on 1 January 2023, on the transfer of local government from the federal to the State industrial relations system.  Section 80BB(2) of the Industrial Relations Act 1979 (WA) treats the Agreement as registered under section 41 of the Act. The City of Cockburn negotiated the City of Cockburn Enterprise Agreement 2022 (Agreement) to replace the existing instrument, seeking registration under section 41 of the Act. The Agreement, under consideration for registration, faced questions over two clauses.

Clause 5 of the Agreement aimed to establish a comprehensive framework, excluding certain awards and intending to govern all employee terms and conditions. The specific issue concerned clause 5.2, which asserted the Agreement's superiority over inconsistent award terms. The question is whether the registration of the Agreement, including clause 5, would be inconsistent with the Act.

Clause 6 introduced Individual Flexibility Arrangements, allowing employers and employees to mutually vary specific terms of the Agreement. The central issue was whether the registration of the Agreement, including clause 6, would be inconsistent with the Act.

With the Chief Commissioner's consent, the following questions of law regarding these clauses were referred to the Full Bench under section 27(1)(u) of the Act.

 

Question 1: Clause 5 – Operation of the Agreement

The City of Cockburn argued that clause 5 aligned with the Act's goal of promoting collective bargaining, emphasising its comprehensive coverage of employee terms and conditions without relying on other industrial instruments. The Full Bench concluded that registering the Agreement, including Clause 5, would not be contrary to the Act.  Section 41(9) underscores the equal standing of awards and industrial agreements, with no hierarchical relationship. The legislative intent supports parties' autonomy in crafting enterprise-level agreements.

 

Question 2: Clause 6 – Individual Flexibility Arrangements (IFA)

The City of Cockburn argued that clause 6 was consistent with the Act. Others, including the Minister, contended that the IFA clause undermined the statutory scheme by allowing individual agreements without adequate protection, potentially circumventing fairness standards. The Full Bench determined that the IFA clause, as proposed, was inconsistent with the Act's scheme, purporting to enable individuals not party to the industrial agreement to vary its terms, contrary to the legislative scheme. Registering the Agreement with clause 6 would be inconsistent with the Act.

 

Question 3: Validity of Clauses if Registered

WASU, LGRCEU, and CFMEUW asserted that clause 6 would be invalid if registered, with the Minister contending it could also be void under section 114 of the Act. The Full Bench concluded that if clause 6 was included for registration, it would be invalid and have no effect.

 

Question 4: Commission's Power to Require Variation

The City of Cockburn, WASU, LGRCEU, and CFMEUW presented arguments on the Commission's power to require variation to an agreement under the Act. The Minister argued against the Commission's authority beyond section 41(3). The Full Bench determined that the Commission cannot require variation beyond the requirements of section 41(3), aligning with the legislative history, which supports the Commission’s minimal role in registration of industrial agreements. The Full Bench noted that provisions like those in clause 6 could result in contraventions of the Act, exposing employers to enforcement action.

 

The decision can be read here.

Full Bench Grants Amendment to Civil Service Association’s Appeal Grounds.

The Full Bench permitted the Civil Service Association's amendment to the grounds of appeal, enabling the CSA to proceed with clarified challenges to the Industrial Magistrate's findings on the breach of clause 36A(4) of the Award.

The Full Bench considered the appeal by the Civil Service Association of Western Australia Incorporated (CSA) against a decision of the Industrial Magistrate's Court, which dismissed the CSA's claim that the Director General Department of Justice breached clauses 36A(4), (5), and (6) of the Public Service Award 1992. The appellant sought an amendment to its grounds of appeal.  The respondent opposed the application on the grounds of lack of specificity and a lack of prospects of success on the appeal.

The CSA's original claim before the Industrial Magistrate arose from the Director General's failure to communicate directly with the CSA regarding disciplinary matters involving two employees represented by the CSA. The Industrial Magistrate dismissed the CSA's allegations, focusing on the failure to communicate directly as outlined in clause 36A(4). The proposed amendments to the grounds of appeal aimed to challenge the Industrial Magistrate's construction of clause 36A and sought clarification on the CSA's right to be informed and involved in significant matters.

The Full Bench, in considering the application to amend, emphasised the discretionary power to grant leave and outlined factors such as the timing of the notice, the reason for seeking the amendment, the clarity of the grounds, and potential prejudice to the respondent. The CSA explained that the amendments aimed to narrow and clarify the grounds, addressing deficiencies in the original formulation. The Full Bench accepted the explanation and granted the amendment, noting that the issues raised were of general importance regarding members' representational rights. The Director General's concerns about potential prejudice were considered but not deemed sufficient to outweigh the importance of clarifying the issues in the appeal.

The decision can be read here.

Mandatory Annual Leave for Prison Officers as per Industrial Agreement.

The Commissioner ruled that, in accordance with clause 80.5 of the Department of Justice Prison Officers’ Industrial Agreement 2020, prison officers are obligated to take annual leave during the Leave Year at the times specified in the structured annual leave rosters.

The Western Australian Prison Officers’ Union of Workers (Union) sought a declaration under the Industrial Relations Act 1979 (WA) concerning clause 80 of the Department of Justice Prison Officers’ Industrial Agreement 2020. This clause outlines the structured allocation of annual leave to prison officers through 'annual leave rosters.' The dispute concerned whether prison officers are compelled to take annual leave during their rostered periods.

The Union contended that prison officers possess the discretion to adhere to the roster, request leave at alternative times, or opt not to take annual leave during their designated periods. The Minister, in contrast, asserted that clause 80 mandates adherence to the annual leave rosters, emphasising the imperative for prison officers to take accrued leave at the times specified.

Central to the Union's stance was the absence of explicit limitations in clause 80 and the principle of equitable leave distribution. The Union argued for flexibility in leave decisions, asserting that the Industrial Agreement allowed for such latitude. Conversely, the Minister underscored the mandatory language of clause 80, emphasising predictable staffing levels critical in the regulated and staff-dependent prison environment.

Commissioner Emmanuel, acknowledging the historical presence of these provisions, rejected the Union's claim that officers can freely choose when to take leave, emphasising the Agreement's intent for an equitable and uniform approach through the Annual Leave Letter system.

Commissioner Emmanuel dismissed the Union's argument that the term 'annual' implies yearly issuance of the Annual Leave Letter, clarifying that 'annual' describes the type of leave, not its timing. Supporting the Minister's position, Commissioner Emmanuel stated that prison officers must take annual leave at the designated time, with deviations requiring special reasons and approval. Commissioner Emmanuel further rejected the Union's interpretation of clause 80.5 as providing guidance on abstaining from accrued leave, emphasising practical adherence to the Annual Leave Letter's specified timing.

Addressing cl 82, cl 83, and rostering provisions, the Commissioner held that they do not support the Union's stance. Acknowledging the anticipation of annual leave before accrual, the Commissioner found that it does not constitute 'cashing out' as defined by relevant legislation. Emphasising the mandatory language of clause 80, the Commissioner concluded that the Industrial Agreement's intention is for prison officers to take annual leave as dictated by the annual leave rosters.

In summary, Commissioner Emmanuel affirmed that prison officers are obliged to take annual leave as per cl 80.5 during the Leave Year at the designated times specified in the annual leave rosters.

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The decision can be read here.

Appeal Dismissed for Failure to Prosecute Employment Contract Dispute.

The Appeal Board dismissed the appellant's appeal due to his persistent lack of engagement and demonstrated lack of interest in the matter.

The appellant, who worked as a Secure Care Worker Level 3.2 at the Kath French Secure Care facility, appealed the respondent's decision not to extend his fixed-term contract and sought reinstatement. The respondent contested the appeal, asserting that the Appeal Board lacked jurisdiction to address the matter as they had not taken any disciplinary action or formally dismissed the appellant; rather, his contract simply expired.

Throughout the appeal process, the appellant's participation was notably limited. He did not respond to the Department's allegations and failed to attend a directions hearing on 20 June 2022.  The appellant did not respond to email or telephone contact from the Associate to the Appeal Board. Subsequent attempts at communication, including phone calls and email correspondences, also went unanswered.

Due to the appellant's persistent lack of engagement and the substantial delay in the application process, the respondent requested the appeal be dismissed for lack of prosecution on 8 August 2022. In response, the Appeal Board listed a hearing for 15 November 2022, for a show cause why the appeal should not be dismissed.  The appellant did not attend this hearing.

On 15 November 2022, the Appeal Board dismissed the appeal pursuant to s 27(1) of the Industrial Relations Act 1979 (WA) due to his failure to prosecute the appeal. The Appeal Board found that the significant delay in the case, combined with the appellant's lack of response and engagement, demonstrated his insufficient interest in the matter. Moreover, there was no evidence of hardship to the appellant if his application were dismissed, and no indication that the respondent’s conduct had contributed to his failure to pursue the appeal.

The decision can be read here.

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