The Commission, of its own motion, initiated a review of the Plaster, Plasterglass and Cement Workers’ Award under s. 40B of the Industrial Relations Act 1979. The proceedings were initiated to ensure the award does not contain wages less than the statutory minimum wage, to remove discriminatory clauses and outdated provisions, and align to the award with current employment standards prescribed by the Minimum Conditions of Employment Act 1993. 

The Commission provided notice of its intention to vary the Award to UnionsWA, the Chamber of Commerce and Industry WA, the Australian Resources and Energy Employers Association, the Minister for Industrial Relations, the named employer parties to the Award, the Association of Wall and Ceiling Industries and the Construction, Forestry, Mining and Energy Union of Workers (WA) as the union party to the Award.  The Commission also sought further input from interested parties. The Minister and the Union both confirmed their support for the proposed variations with some further minor variations for accuracy and clarity. The variations were not opposed.

Key amendments to the award include the removal of the year from the title, grouping clauses under functional headings, updating definitions and references to outdated acts, and deleting obsolete clauses. Additionally, provisions for flexible working arrangements, termination of employment, wages, leave provisions – including family and domestic violence leave and parental leave, right of entry provisions and redundancy provisions have been updated to align with current standards and legislation.

The decision can be read here.

In the original application, the appellant commenced a claim for an equal remuneration order. The substance of the application however, suggested the appellant was seeking the recovery of unpaid wages from the respondent. The Commissioner listed the appellant’s application for a hearing to show cause why it should not be dismissed for want of prosecution. The hearing was listed for a variety of reasons, including the appellant’s inaction on progressing the application and complying with directions or communication with the Commission. After failing to appear for the show cause hearing, the Commissioner dismissed the appellant’s application.

The appellant appealed against the order of the Commissioner, citing the primary basis for the challenge was that the appellant was unable to attend the show cause hearing due to a personal matter. No challenge was made by the appellant to the Commissioner’s findings, nor was there any challenge against the claims of failing to communicate with the Commission.

The Full Bench considered appellant’s argument; however, the Full Bench was not persuaded there was any error made by the Commissioner in dismissing the original claim, nor had any appealable error been demonstrated by the appellant. Accordingly, the appeal was dismissed. 

In handing down its reasons for decision, the Full Bench highlighted the importance of parties to proceedings before the Commission to exercise prompt and clear communication with the Commission and Registry, in order for matters to be dealt with expeditiously. 

The decision can be read here. 

The applicant applied to the Commission regarding an interpretation of the Department of Justice Prison Officers’ Industrial Agreement 2022, specifically whether clause 28 of the agreement mandates a 12 hour break for officers who work overtime after a 12 hour shift.  The respondent contended that such a break is required according to the Agreement, while the applicant argued otherwise, stating that the clause which governs shift patterns, overtime requirements and minimum time off duty has a different interpretation.  

The key provisions of Clause 28 include:

• 28.1: officers working a 12 hour shift are entitled to 12 hours off duty between successive shifts.
• 28.2: In extreme emergencies, officers may be required to work 2 hours of overtime, which necessitates at least 10 hours off duty before returning to work.
• 28.3: Other officers required to perform overtime must have at least 10 hours off duty between successive shifts.
• 28.4: If an officer does not have at least 10 hours off duty before their next shift, they are not required to commence work until they have had the necessary rest.

  
The applicant stated that officers who voluntarily choose to work overtime between successive 12 hour shifts are only entitled to a 10 hour break.  The applicant further emphasised that the Agreement allows for flexibility in overtime provisions, and that a strict limitation is not imposed on the amount of overtime an officer can work, including voluntary overtime.  The applicant stated that such an arrangement would prevent instances where officers could only work overtime in extreme emergencies, which may not align with practical operational needs.  

The respondent, however argued that a straightforward reading of clause 28 would clearly indicate that officers working 12 hour shifts must receive a 12 hour break, except in extreme emergencies. Further, the respondent contended that the applicant’s interpretation of the Agreement was overly complicated and not supported by the text of the Agreement, also emphasising that the Agreement should be applied in conjunction with appropriate fatigue management guidelines, designed to protect the safety and wellbeing of officers when working long shifts. 

Commissioner Walkington found that the Agreement cannot be read to say that the only time overtime can be undertaken by an officer rostered on 12-hour shifts is in an extreme emergency. The Commissioner concluded that officers working 12-hour shifts can voluntarily undertake overtime and that clause 28.4 applies, requiring a 10-hour break between successive shifts. The Commissioner also determined that the parties did not intend for clause 28.1 and 28.2 to preclude officers on 12-hour shift patterns from working overtime on a voluntary basis.  Accordingly, a declaration was issued stating that the Agreement does not require the applicant to provide officers a 12 hour break where they have voluntarily worked overtime following a 12 hour shift.

The decision can be read here. 

In an ongoing matter regarding union coverage of local government employees, the Commission in Court Session addressed an oral application by the respondent union during proceedings, which sought broad-ranging orders for the production of documents from the applicant unions and intervenor.  The application was based on allegations of collusion between the applicants and intervenors in the substantive matter which were said to be relevant to the credibility of witnesses and the ability of the applicant union to represent local government employees effectively.
The Commission in Court Session was not persuaded to make the orders as sought   and found no basis for an order for the production of documents, considering the request from the applicant to be too broad. However, the Commission did make limited orders for production of documents related to the evidence in the proceedings, as these were relevant to the issues identified by the respondent.
The Commission considered the respondent’s allegations, and the evidence presented. The Commission noted that there was no direct evidence of collusion or improper conduct by the applicants or their representatives, and emphasised the need to avoid further delays and additional costs in the proceedings. The Commission found that the respondent had not established any material change in circumstances to warrant revisiting its earlier decision. The Commission concluded that the orders sought by the respondent were oppressive, speculative, and contrary to the public interest.
The Commission granted the applications by the applicant unions to dismiss the respondent’s application for production of documents. The proceedings were re-listed for further directions to deal with the claim for privilege arising from the orders previously made.
 
The decision can be read here. 

In the original claim, the respondent, who was employed as the Advertising Manager for the appellant, filed a claim for denied contractual benefits, alleging the appellant failed to pay additional payments of $10,000 per quarter for taking on increased responsibilities due to a promotion.  The respondent sought a declaration that he had been wrongfully denied these contractual benefits over a period of two quarters, and requested payment of the full amount, totally nearly $18,000.
The appellant argued that the additional payments were contingent upon the respondent meeting Key Performance Indicators (KPIs), which he allegedly failed to do.  However, the Commissioner determined that the agreement for additional quarterly payments was not contingent upon meeting KPIs, and therefore the appellant’s failure to pay for the completed quarter was a breach of contract.  The Commissioner ordered the appellant pay the respondent the sum of $10,000, and dismissed the remainder of the claim, as the respondent did not complete the entire quarter.
The appellant's appeal challenged various aspects of the Commissioner's original decision, alleging bias and procedural unfairness. The appeal notice contained several points, including the Commissioner's failure to acknowledge valid reasons for non-compliance with programming orders, the alleged bias in the Commissioner's decision, and the failure to admit certain evidence.
The Full Bench considered these matters and emphasised the need for a party to be given a reasonable opportunity to present their case and respond to issues adverse to them.  The Full Bench found that the appellant's case lacked evidence to establish that the respondent's quarterly payments were conditional upon achieving KPIs; subsequently the appellant conceded that no document existed to support this claim. The Full Bench found that the additional payments were intended as remuneration for the increased responsibilities of the new position and concluded that the Commissioner’s decision was consistent with the evidence.  The claims of bias and procedural fairness were unsubstantiated.  Accordingly, the appeal was dismissed.

The decision can be read here.