Under s40B of the Industrial Relations Act, the Commission can review an award’s provisions if they are “obsolete or in need of updating.”  The Commission initiated proceedings under this section to review clauses in 2 local government awards, headed “Enterprise Flexibility” and “Facilitative Provisions.” The Commission considered whether the clauses were invalid, and so should be removed.

The parties to the proceedings agreed that the Enterprise Flexibility clauses of the awards were invalid. Those clauses purported to permit an agreement to be made with employees at the enterprise level to vary the awards’ provisions, without a mechanism for either the union to be party to such an agreement, or the Commission to register it. Accordingly, the agreement contemplated by the clause was outside the scheme of the Industrial Relations Act. Under the IRA, awards can only be varied by application to the Commission to which a union is party.

Turning to the facilitative provisions in the award, Senior Commissioner Cosentino observed that facilitative provisions are features in many awards, and have been since the 1980s. The purpose of facilitative provisions is not to enable avoidance of award obligations, but rather to allow for a departure from a default or standard method of satisfying an award obligation. Accordingly, a true facilitative provision was not contrary to the Act’s scheme, as it did not involve permitting agreement to vary a provision in the award having the effect of altering award obligations.

Having found that the concept of facilitative provisions in a general sense was not inconsistent with the scheme of the IR Act, the Senior Commissioner went on to consider whether particular provisions of the awards were true facilitative provisions or whether they did more than a facilitative provision, to have the effect of varying award obligations. The Senior Commission found that some of the clauses of the awards did go beyond the limits of a permissible facilitative provision. The Senior Commissioner therefore varied the awards, to remove both the enterprise flexibility clauses and the impermissible facilitative provisions.

In the course of the hearing, the unions argued that the facilitative provisions were obsolete and should be removed because they were rarely if ever used. However, the Senior Commissioner was not persuaded that this was a proper basis to remove the clauses under s40B.

Decision APPL 26/2023 can be read here and decision APPL 27/2023 can be read here.

The appellant’s dismissal was upheld because the Board determined that the vaccination order was legal, reasonable, and necessary for her role.

The appellant, a Senior Community Engagement Officer (SCEO) in the Department of Justice, was dismissed for failing to comply with a vaccination order under Chief Health Officer (CHO) Directions, which were considered necessary for her role involving travel to remote communities, schools, and hospitals.

The appellant disputed the legality of the Employer Direction, arguing that it did not apply to her role, which she believed was Perth-based, and that the duties mentioned in the direction were unclear. The respondent defended the legality and reasonableness of the Employer Direction, stating that it aligned with the SCEO role and that compliance with CHO Directions was essential for fulfilling her responsibilities.

The Board ultimately dismissed the application, finding that the Employer Direction was legal, reasonable, and within the scope of the appellant’s role, which occasionally required travel to remote communities, schools, and hospitals. Her failure to comply with the vaccination order constituted a breach of discipline, and her dismissal was deemed fair and not harsh, oppressive, or unjust in light of the role's travel requirements and the lack of evidence indicating unfair treatment compared to other government employees.

The decision can be read here.

The appeal to dismiss the appellant due to his conviction of a serious offense was dismissed because the Board found his actions and lack of remorse were incompatible with his role as a public officer.

The appellant, a former Level 5 Area Manager with the respondent, was dismissed from his employment in April 2022 due to a conviction for possession of scheduled poisons. The respondent considered his conviction a serious offence and incompatible with his role as a public officer.

Both parties agreed that the respondent had the authority to impose disciplinary action, and the appellant did not dispute his conviction for a serious offence. However, he contended that his dismissal was disproportionate to his misconduct, and the respondent did not adequately consider the circumstances of his offence. The appellant argued he had no malicious intent when he took and stored the medications and cited a lack of clear departmental policies for medication disposal as a factor.

The appellant sought reinstatement, while the respondent countered that the appellant's reasons for keeping the medications were questionable, emphasising his careless and negligent actions, which damaged trust and confidence.

The Board ultimately dismissed the appeal, finding that the respondent’s decision to dismiss was lawfully and validly made consistent with s 92 of the PSM Act. It rejected the appellant's claims regarding his lack of knowledge and remorse, noting that he failed to properly differentiate, record, or store the medications, further eroding trust in the employment relationship and supporting the respondent’s decision.

The decision can be read here.

A decision of the Public Service Appeal Board  is not a decision of the Commission constituted by a Commissioner.

The appellant file an appeal under s 49(2) of the Industrial Relations Act 1979 (WA) from a decision of the Public Service Appeal Board dismissing his appeal from PSAB 60 of 2022.  The following day, the respondent filed an application that the appeal should be dismissed, as not being within the jurisdiction of the Full Bench under s 49 of the Act.

The Full Bench dismissed the appeal because decision of the Appeal Board is not a decision of ‘the Commission constituted by a Commissioner’, for the purposes of s 49(1) of the Act.  Therefore, under s 49(2) of the Act, no appeal was being brought from ‘any decision of the Commission’. 

The decision can be read here.

The Commission determined that the interpretation of 'continuous service' in two separate agreements in the Western Australian health system was straightforward and corresponded with the definitions provided within the agreements themselves.

The matter concerned a dispute related to the interpretation of clauses in two separate agreements in the Western Australian health system. United Workers Union (UWU) applied for a declaration on the true interpretation of clauses in the Education Assistants' (Government) General Agreement 2023 and the Government Services (Miscellaneous) General Agreement 2023, both of which outlined entitlements to long service leave based on continuous service. The Director-General of the Department of Education was the Employer party to the Education Assistants Agreement, while numerous government agencies collectively represented the Employers in the Government Services Agreement.

UWU argued that 'continuous service' should be understood according to its common-sense, plain English meaning. In contrast, the Employers contended that 'continuous service' referred only to qualifying service since the registration of the industrial agreement containing the casual Long Service Leave clause.

Senior Commissioner Cosentino found that there was no ambiguity in the references to 'continuous service' in the relevant clauses of both agreements. The Education Assistants Agreement and the Government Services Agreement did not contain any ambiguity, and the words in question did not support the interpretation advocated by the Employers. As a result, the Commission provided directions regarding the true interpretation of 'continuous service' in both agreements, clarifying that it aligns with the continuous service specified within each respective agreement's clauses.

The decision can be read here.