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Full Bench clarifies penalty provisions

The Full Bench has unanimously found that the $2,000 maximum penalty in s 83(4) of the Industrial Relations Act 1979 (WA) (IR Act) for the contravention of industrial instruments should apply to each individual contravention rather than the maximum applying regardless of the number of contraventions.

 The appellant, an industrial inspector, appealed against the decision of the Industrial Magistrate on the following grounds:

 (1) The learned Industrial Magistrate made an error of law in holding that on the proper construction of s 83(4)(a) of the IR Act, the maximum penalty that can be imposed by the Court for multiple proven contraventions of an instrument to which s 83 applies is $2,000, regardless of the number of proven contraventions;

(2) The penalty of $1,700 for the 282 proven contraventions imposed by the learned Industrial Magistrate was manifestly inadequate; and

(3) The learned Industrial Magistrate made an error of law in holding that the costs incurred by the appellant for a process server and Landgate search fees were costs “for the services of any … agent” of the appellant within the meaning of s 83C(2) of the IR Act.

 The learned Industrial Magistrate considered that in the context of s 83(1), which her Honour viewed as contemplating multiple contraventions or failures, because of the expression “contravenes” and “fails” in that subsection, s 83(4) should be construed as referable to multiple contraventions attracting a maximum penalty of $2,000. Her Honour, therefore, imposed a single penalty for the 282 admitted contraventions.

The Full Bench considered this approach to the construction of s 83(4) was wrong, having regard to the natural and ordinary meaning of the words in the section. The Full Bench considered the alternative and correct construction, that the maximum applied to each contravention, was consistent with the objects of the enforcement regime of the IR Act and the context generally including the legislative history.

 The Full Bench reconsidered the penalty to be imposed, including the application of course of conduct principles. The Full Bench assessed the individual penalties for each of the 282 contraventions and considered whether any adjustment should be made to ensure that, to the extent of any overlap between separate contraventions that can be considered part of a single course of conduct, there is no double penalty imposed. The Full Bench was satisfied that the contraventions were part of a single course of conduct, and as such, it was appropriate to make an adjustment, but as a separate stage after individual penalties are assessed.

 The Full Bench upheld the appeal and set aside the decision of the Industrial Magistrates Court, substituting an increased penalty.

 The Full Bench also confirmed that the disbursements claimed by the industrial inspector were recoverable costs and not excluded from recovery as costs of an “agent”.

 The decision can be read here.

Tribunal affirms Worksafe Commissioner’s decision to not grant registration as a High Risk Work Licence Assessor

The Occupational Safety and Health Tribunal has affirmed a decision of the Worksafe Commissioner to not grant the applicant registration as a High Risk Work Licence Assessor in a number of classes.

Background

In May 2019, the applicant applied to the Department of Mines, Industry Regulation and Safety, WorkSafe Division, for registration as an assessor for licences to perform high risk work in five different classes.  In November 2019, the applicant was advised that his experience in relation to two classes was sufficient and he was invited to undertake the assessors’ examinations for those classes.

In December 2019, an officer of WorkSafe advised the applicant that he did not have sufficient experience to qualify for the remaining three licences, as the experience he provided was not industry operational experience in operating the relevant cranes.  The applicant was advised that the experience must be a minimum of three years, recent, relevant, and varied operational industry experience. On 6 December 2019, the applicant requested the WorkSafe Commissioner to ‘overturn’ the decision of the officer. In January 2020, The WorkSafe Commissioner advised the applicant that his experience in a training environment or in the commissioning of equipment, was not considered industry operational experience.

Contentions

The WorkSafe Commissioner contended that his decision in refusing to grant the applicant the licences should be affirmed.   This was because the applicant had not demonstrated the appropriate minimum experience, being three years of extensive and recent operating experience, in the relevant classes to meet the requirements for granting an assessor registration, pursuant to reg 6.22(2)(b) of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations).

The applicant contended that the experience he submitted to the WorkSafe Commissioner was sufficient for registration as a HRWL assessor in all three classes. The applicant disagreed with the WorkSafe Commissioner’s submissions, that his experience obtained in a registered training organisation (RTO) setting ought to be given less weight than that obtained in an industrial operating setting.

Findings

Commissioner Walkington accepted the WorkSafe Commissioner’s submissions concerning the requirement to ensure that assessor registration only be granted to people with sufficient demonstrated and evidenced operational experience. She found that, in the context of a training environment, the absence of specific information that records the details of the activities undertaken, and the environment, noting any hazards or risks, cannot demonstrate that the requirements of reg 6.22 of the OSH Regulations have been met.

Walkington C found that the experience cited by the applicant was expressed in general terms and not verified or confirmed by the RTO.   Also, the description of the work undertaken was not of varied activities.  The Commissioner also found that the photographs of the equipment, facilities and sites on which the applicant conducted training of persons for high risk work licences, did not provide the detail required to assess the task being performed, did not show the nature of the environment and that it was not possible to identify the skills necessary by reviewing the photographs.

Commissioner Walkington concluded that the applicant’s description of his experience was not detailed enough and did not meet the requirements of the OSH Regulations.

The Tribunal affirmed the Worksafe Commissioner’s decision.

The decision can be read here.

Claim for redundancy notice period dismissed for want of jurisdiction

The Industrial Magistrate has dismissed a claim for a redundancy notice period for want of jurisdiction.

Background

The claimant was employed as a lecturer at a University, from July 2005 to December 2019. In May 2019, the University sought expressions of interest from its employees for voluntary redundancy. The claimant made a request to be considered for voluntary redundancy, which the employer approved and provided the employee with a provisional calculation of termination payments, which included 22 weeks’ pay in lieu of the notice period, pursuant to a clause of the employer’s enterprise agreement .  The claimant was informed that the notice period would commence on 24 May 2019 and that his employment would cease on 13 December 2019.   He was not required to work out the notice period.  

The claimant was then asked by his supervisor whether he would be willing to work an additional six months to cover the absence of another staff member. The claimant was assured by his supervisor that he would not suffer any financial loss if he decided to stay on and he would receive his full redundancy entitlement, including the notice period. The claimant and his supervisor agreed that the claimant would continue to work until the end of 2019.  When his employment ended, the employer would pay him his full redundancy entitlements and his notice period would commence after his employment ceased. The claimant alleges that he relied on his supervisor’s representation and the agreement and worked until 20 December 2019. When the claimant’s employment ended, the employer failed to pay monies due to him pursuant to the agreement.  On 25 January 2021, the claimant filed an amended claim for the payment of a redundancy notice period against five respondents. The claim concerned the payments the employee received at the termination of his employment. He claimed he was not paid 22 weeks for a redundancy notice period, in the sum of $58,715.93.

The claimant alleged that in not paying him the sum of $58,715.93, his employer had:

  • breached s 345 of the Fair Work Act 2009(Cth) (FWA) by not paying him the payment in lieu in circumstances where his supervisor, on behalf of the employer, allegedly made a false or misleading representation to the claimant that he would not suffer financial loss by extending his employment and working his notice (s 345 claim);
  • breached s 50 of the FWAby contravening a term of the enterprise agreement (s 50 claim); and
  • breached s 323 of the FWA in failing to pay in full, the claimant’s redundancy entitlement from 20 December 2019 (s 323 claim).

The respondents noted that under the enterprise agreement, an employee may request to work all or part of the notice period, and the University may agree, or decline an employee’s request. Where a request is agreed the employee, upon termination, will receive payment in accordance with Clause 18.11 including any balance of the notice period not used. The respondent’s submitted that in working until 20 December 2019, the claimant served out his notice and had been paid his entitlements in full.

At the hearing, the Industrial Magistrate raised the question of whether the Industrial Magistrates Court had jurisdiction to deal with the claim pursuant to s 345 of the FWA.  

 

Parties’ submissions on jurisdiction

Both parties accepted that the Court did not have jurisdiction in respect to contraventions of s 345 of the FWA. The claimant conceded that the element that relates to the employer’s contravention of s 345 is abandoned, however maintained that the Court could still make findings of fact to the effect that the claimant’s supervisor induced him to remain in employment by offering, on the employer’s behalf, to pay the claimant at the end of his employment the amount to which he was entitled to in May 2019. As a result, the claimant says the Court had jurisdiction to deal with his s 50 claim and s 323 claim.

The respondent submitted that there could be no contravention of s 50 or s 323 of the FWA unless it was first found that the supervisor’s alleged misrepresentations occurred and that it was made on behalf of the employer and bound the employer to defer the commencement of the notice period to the claimant’s final day of employment. The respondent therefore argued that the s 50 claim and s 323 claim could only arise if the s 345 claim succeeded.

Industrial Magistrate Hawkins noted that the entire claim relied on the determination of what representations were made by the claimant’s supervisor to him and a finding that they were misrepresentations. She found that for the Court to make such findings, it would need to hold that there had been a contravention of s 345 of the FWA, which the Court was excluded from doing. The claim was dismissed for want of jurisdiction.

The decision can be read here.

Ceremonial Sitting of the Commission Cancelled

Due to Government guidelines, the Ceremonial Sitting of the Commission for the presentation of Commission by Chief Commissioner Stephen Kenner and speeches of welcome for Senior Commissioner Rachel Cosentino has been cancelled.

The Ceremonial sitting will be rescheduled when it is safe to do so.

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