The Commission, under s 40B of the Industrial Relations Act 1979 (WA), implemented several variations to the Hairdressers Award 1989 to align it with contemporary standards, remove obsolete provisions, and ensure fairness for hair dressing employees in Western Australia.

Key changes included adjustments to wages, leave entitlements, and definitions, as well as the inclusion of provisions covering trainees and related to domestic violence leave.

Background

The Commission provided notice of its intention to vary the Award to UnionsWA, the Chamber of Commerce and Industry WA, the Association of Mining and Exploration Companies, the Minister for Industrial Relations, the Australian Workers’ Union (AWU) and each of the parties to the Award being the Shop, Distributive and Allied Employees’ Association of Western Australia (SDA), the Master Hairdressers’ Industrial Union of Employers of W.A. (MHA) and all named individual employers.

The Commission subsequently convened a conference to seek input from interested parties about the issues with the Award, and the appropriate drafting revisions to address them. Representatives for the Minister, the MHA, the SDA, and the AWU attended the conference.

The Commission then published notice of proposed variations to the Award, pursuant to s 40B(2). A hearing was convened for the purpose of affording interested persons an opportunity to be heard in relation to those proposed variations.

Findings

The Commission made the following specific variations to modernise and align the Award with current legislation and industrial practices while ensuring clarity and consistency in its provisions.

Title of the Award: The title of the Award was updated to remove the year of the Award, following current naming practices for awards.

1.  Arrangement Clause: Like clauses have been grouped together under functional headings.
2. Term Clause: The term clause, which defined the duration of the Award, was deleted as it was no longer relevant.
3.  Definitions Clause: The definitions clause was renumbered from clause 5 to clause 4. Several definitions updated or contemporised and new definitions added. Irrelevant definitions removed, and classifications moved to Schedule C.
4. Engagement: Previous clause 12 covering contracts of employment and termination has been split into clause 5 and clause 6.
5. Hours: Hours of work were previously covered in clause 6. Under new clause 7, the provisions have been updated in accordance with the Retail Trading Hours Act 1987 (WA).
6. Display of Rosters: Previous clause 7 covering display of rosters has been moved to clause 8 and now requires rosters to cover the period of Monday to Sunday (rather than Monday to Saturday).
7. Overtime: Wording of this clause updated for clarity, and previous sub-clause (1)(a) has been removed due to it being confusing, inaccurate, and out of date.
8. Meal times and break periods: Clause 10 covers meal time and replaces previous clause 15. The Clause has been modernised based on language used in the recently varied Shop and Ware Warehouse (Wholesale and Retail Establishments) Award 1977 (SWA)
9. Long Service Leave: Clause 14 covers Long Service Leave and replaces previous clause 21. Provisions varied to refer to the provisions of the Long Service Leave Act 1958 (WA)
10. Wages: A number of changes have been made to provisions pertaining to wages, including addition of new classifications in the Award, removal of references to the historical incorporation of loading in lieu of penalties, movement of penalty rates now set out in a table, changes to outdated language, and removal of provisions relating to a four-year apprenticeship no longer available in hairdressing.
11. Traineeships: A new clause covering traineeships has been added to the Award, directly incorporating minimum pay and conditions applying to trainees in the national industrial relations system.
12. Time and Wages Record: Clause 23 replaces previous clause 17 and updates provisions previously inconsistent with statutory requirements under the IR Act and LSL Act.
13. Other Variations: Various substitutions and variations have been made throughout the Award to improve clarity without altering the substantive operation of the clauses.

The Commission made the further variations to ensure compliance with the Minimum Conditions of Employment Act 1993 (WA) (MCEA).

1. Family and Domestic Violence Leave: A new clause was added to address Family and Domestic Violence Leave.
2. Termination of Employment: provisions requiring an employee to forfeit pay in lieu of giving notice have been removed as they may be incompatible with the MCEA.
3. Public Holidays: Clause 11 replaces the previous clause 9 and is updated to add Easter Sunday as a public holiday under the Award, change the name of Foundation Day to Western Australia Day, and remove provisions enabling an employee to forfeit wages where the employee has been absent without leave on the day before or after a public holiday, as the provision was inconsistent with, and less favourable than, the MCEA.
4. Annual Leave: Clause 12 replaces the previous clause 10 and provisions regarding annual leave were updated to align with the MCEA.
5. Personal Leave: Clause 13 replaces the previous clause 14 and replaces references to “sick pay” and “sick leave” with “personal leave” reflecting the provisions of the MCEA. The provisions of this clause have also been simplified by incorporating personal leave provisions of the MCEA, and evidentiary requirements for applications for personal leave aligned with the MCEA.
6. Parental Leave: New clause 15 makes provisions for parental leave to be provided in accordance with the FW Act and the MCEA.
7. Bereavement Leave: Clause 16 replaces the previous clause 28 – Compassionate Leave. The clause has been updated to refer to the provisions of the MCEA.

The decision can be read here. 

The respondent union, in relation to ongoing proceedings, applied for an order under r 21 of the Industrial Relations Commission Regulations 2005 for the production of documents by the applicant union and another union the LGRCEU, as intervenor, and the employer body WALGA, as intervenor.  The documents requested included all communications between the applicant, the WALGA and the LGRCEU, concerning the proceedings or evidence given or expected to be given in these proceedings. The basis for the application was an assertion of collusion.

The application was opposed.  It was contended that such communications could date back many months and most or all communications would be of a privileged nature.  It was also contended that the requested order would significantly delay proceedings.

The Commission in Court Session determined that there was not any significant basis for an order for production of documents to be made involving the LGRCEU, or for an order to produce all documents, finding that such an order was too broad in scope. The Commission did, however, determine that it would be appropriate to make more limited orders in this matter. These orders included the production of non-privileged documents related to the evidence in proceedings and that any claim of legal professional privilege be the subject of affidavit evidence.

The decision can be read here. 

The applicant, who was employed as the Chief Executive Officer of the respondent local government authority, was summarily dismissed from his position for serious misconduct. Subsequently, the applicant filed an unfair dismissal claim against the respondent.

The applicant contended that the findings made against him were not supported by the available evidence and were not impartial, and that the investigation denied him procedural fairness. The applicant stated his gross salary was $192,213 and identified the Local Government Officers’ (Western Australia) Award 2021 (LGO Award) as applying to his employment.

The respondent denied that the termination was unfair and objected to the applicant referring his claim to the Commission, arguing that the Commission lacked jurisdiction because the applicant’s contract of employment provided for a salary exceeding the prescribed amount of $187,800 and no industrial instrument applied to him.

Senior Commissioner Cosentino determined that the Commission lacked jurisdiction to hear and determine the unfair dismissal claim, as an industrial instrument did not apply to the applicant’s employment and his salary exceeded the prescribed amount.

The decision can be read here. 

The appellant, who worked for the respondent first as a Special Needs Education Assistant and then as a School Officer was dismissed from her role when the respondent determined that the appellant was unable to fulfill the inherent requirements of the position.

Following a disciplinary investigation into allegations of misconduct that resulted in disciplinary action, the appellant was transferred to a different location, where concerns about her absenteeism from work were raised. As a result, the respondent proposed to dismiss her, and then terminated her employment with four weeks’ pay in lieu of notice.

The appellant contended that her dismissal was unfair on the grounds that her absences were due to legitimate reasons and that dismissal was unfair given her length of service and employment history. The Appeal Board reviewed the dismissal de novo, considering the evidence presented and the respondent's decision.

The Appeal Board found that the appellant’s inability to maintain regular attendance rendered her unable to fulfill the inherent requirements of her role. The Appeal Board also considered her past disciplinary history and the impact of her absences on the respondent's operations, and upheld her dismissal, dismissing the appeal.

The decision can be read here. 

The applicants, members of the respondent union, applied to the Commission under s 66 of the Industrial Relations Act 1979 (WA) alleging that the respondent union failed to follow its rules regarding a number of claims.

The claims against the respondent include claims that the now former Secretary of the union was ineligible for the position under the union’s rules, that certain individuals were ineligible as union members, that the union did not comply with its rules in relation to Annual General Meetings, and that the union breached its rules governing payments of accounts.

The respondent union originally filed an application to dismiss these claims, contending that the applications amounted to grievances about the management of the union rather than issues of rules observance.  As a result of that application, one of the claims against the respondent was dismissed but the others remained to be determined.

Chief Commissioner Kenner considered each of the remaining five amended claims.  He determined that the former Secretary was eligible for the position of Secretary under rules; that the claim regarding certain individuals being ineligible as members was unfounded and was caused by a simple administrative error; and while the respondent had followed its rules regarding the claims about AGMs and the control of funds, those rules were either inadequate or unclear.  The Chief Commissioner accordingly made directions to the union to alter these rules.

The decision can be read here.