The Australian Medical Association (AMA) made a claim on behalf of six doctors who submitted that, during their periods of employment in the public health system, they should have been classified as “Consultant” under the relevant industrial agreements.

The relevant industrial agreements defined “Consultant / Specialist” as follows:

“Consultant / Specialist” means a medical practitioner who holds the appropriate higher qualification of a University or College, recognised by the Australian Medical Council (“the AMC”), and includes a Fellow of the Australasian Chapter of Addiction Medicine, or, in exceptional circumstances to satisfy areas of unmet need, such other specialist qualification recognised by the Director General of Health and who, unless otherwise approved by the Director General of Health, is employed and practising in the specialty for which he/she is qualified.

Industrial Magistrate O’Donnell found the word “appropriate” in the phrase  “the appropriate higher qualification of a University or College” meant a qualification recognised by the AMC that leads to a speciality in a particular field of medical practice, including in the case of general practice, FRACGP and FACRRM.

The six doctors were therefore found to hold the appropriate higher qualification as referred to in the Consultant/Specialist classification. Her Honour  also concluded the classification additionally required that the doctor to be employed and practicing in the specialty for which the doctor is so qualified. 

Her Honour was satisfied, therefore, that it was possible for the six doctors to have been classified as Consultant/Specialists. However, her Honour noted that there were other classifications in the industrial agreement which could also appropriately be applied to the doctors. Accordingly, the employer’s use of these other, appropriate classifications, meant there had been no breach of the industrial agreement.

The decision can be read here.

The Department of Justice Prison Officers’ Industrial Agreement 2020 allows prison officers covered by it to purchase additional leave by foregoing salary. Four officers who were members of the Western Australian Prison Officers Union had entered into purchased leave arrangements. However, when the officers applied to access additional leave, their requests were declined on the basis of the operational needs of the relevant prisons.

The Union alleged the employer was in breach of the industrial agreement. It argued that, having agreed to enter into the purchased leave arrangements, the industrial agreement required the employer to make the leave available, and that the employer could not avoid making the leave available under any circumstances.

The industrial agreement relevantly provided:

Where more Officers than can be accommodated nominate for a particular block [of leave] the Employer will decide in consultation with those Officers directly affected who is to be allocated the period.

Industrial Magistrate O’Donnell noted that the prisons were experiencing a great deal of pressure on their human resources, and had reasonably concluded that they could not afford to allow officers to take additional leave on top of their usual annual leave. Her Honour further found that based on the above clause, it was open to the employer to find that even one officer who nominated for a block of leave might be more than can be accommodated. Accordingly, it was fair and logical for the prisons to decline all officers’ additional leave, rather than engage in consultation under the above clause.

Her Honour accordingly found there was no breach of the industrial agreement.

The decision can be read here.

The Western Australian Prison Officers Union brought proceedings on behalf of its member who was a Principal Officer at the Karnet Prison Farm. The Union alleged the officer should have been paid at overtime rates for her work on the King’s Birthday public holiday.

The employer denied the claim on the basis that payment for working public holidays was part of the officer’s annual salary.

The Union and the employer disagreed about which clauses of the industrial agreement applied to the officer and how those clauses applied. Industrial Magistrate Kucera needed to determine the meaning of certain terms of the industrial agreement.

His Honour found there was ambiguity in the industrial agreement, so that it was necessary to have regard to surrounding circumstances and the context in which the agreement was negotiated. Doing so, his Honour concluded that the annualised salary for officers was only for ordinary hours, and that working on public holidays was not included in the annualised salary.

Further, his Honour found that the rostered hours for a principal officer are the ordinary hours, and principal officers are not paid for working public holidays.

Accordingly, the public holiday that the Principal Officer had worked on the employer’s direction attracted overtime, and the failure to pay overtime was in breach of the industrial agreement.  

The decision can be read here.

“The provisions of the Industrial Relations Act related to the production of records are necessary tools which allow industrial inspectors to obtain employment records to protect the rights of employees in this State. When an employer fails to – or in the case of these co-offenders, refuses – to comply, then it effectively stymies any investigation. A strong message needs to be sent, not only to these co-offenders, but also to other employers, that such behaviour is utterly reprehensible. General deterrence looms large in this sentencing exercise.”

On 9 December 2021 the Court made two orders requiring the two individual respondents to produce employment records by set dates. Neither individual complied with the orders. Through their lawyer, they changed their not guilty pleas, to guilty pleas on all of the charges. They were accordingly convicted upon their pleas of guilty of two charges each for failing to comply with court orders contrary to s 83E(9) of the Industrial Relations Act 1979 (WA).

Industrial Magistrate Coleman noted that the co-offenders deliberately chose to ignore the Court order. They each made a conscious and deliberate decision not to comply. Her Honour also noted that it was an understatement to say Mr Imam had behaved abhorrently towards the department’s representatively throughout their investigative process. His conduct was described as a “tidal wave of vitriol.” Her Honour described an apology letter to the Court as absurd and beggaring belief, in light of his unfounded accusations against the Department. Her Honour described his behaviour as “utterly reprehensible and shameful.” Accordingly, her Honour:

• Declined to discount the penalty on account of remorse;
• Allowed a 20% discount for the early acceptance of liability by the guilty plea;
• Considered the co-defendant’s deliberate obstructiveness as an aggravating factor;
• Determined that it was appropriate to impose a single fine for both charges against each individual under s54 of the Sentencing Act
• Determined that it was appropriate to additionally impose a further penalty relating to the daily penalty.

One co-offender, Mr Hui was ordered to pay  a total penalty of $44,000 while Mr Imam was ordered to pay a total penalty of $45,800.

The decision can be read here.

Background

The employee commenced employment as an organiser with the respondent union in July 2018. The initial employment arrangements were relatively informal.

The employee was later elected unopposed to one of five positions of the CFMMEU Western Australia Divisional Branch organiser commencing from 1 January 2021. The elected position had a term of 4 years.

About 18 months into the 4 year term, the employee discovered that one of the union’s assistant secretaries had asked another employee to observe his performance and report back to the assistant secretary. The applicant confronted the assistant secretary about this and sent several text messages to other colleagues which alluded to quitting. He did not return to work.

Contentions

The employee made the claim under s 29(1)(d) of the Industrial Relations Act 1979 (WA), that he had been denied a contractual benefit.

The employee claimed that his elected position guaranteed him employment for a four-year fixed term, subject to limited ways the employment could be terminated early. He alleged the employer had terminated his employment by a letter confirming his redundancy. He sought compensation for the lost wages resulting from this alleged breach.

The employer argued that the employee was not entitled to a fixed-term contract and that he voluntarily quit his job but the employer then allowed him to characterise the termination of the employment as a redundancy.  It argued that there was no breach of contract on its part.

Findings

The Commission dismissed the application.

The Commission found that on his last day of work, the employee told several colleagues that he quit. However, it found that at a subsequent meeting with the union secretary, he agreed to end the employment by substituting a mutual termination, treated as a redundancy, on terms that were financially favourable compared with him simply having resigned.

As the employer did not terminate the employment, the circumstances did not constitute a denied contractual benefit.

The decision can be read here.