The Commission, of its own motion, initiated proceedings to vary the Shop and Warehouse (Wholesale and Retail Establishments) State Award, which was identified as an award suitable for a review of its scope.

The Commission gave notice of the proposed variations to the Award to several parties, none of whom advised the Commission of any opposition to the proposed variations. The Minister for Industrial Relations and UnionsWA each expressed their support for the variations.

The variations seek to better encapsulate the types of work the Award is intended to cover, to ensure that the Award extends to the wholesale industry generally, and to clarify that the Award does not apply to employees covered by another State award.

The decision can be read here. 

The applicant was Director of Corporate and Legal Services at the respondent local government. After being summarily dismissed from the position following an investigation into a pay banking arrangement into which he had entered, the applicant lodged claims with the Commission alleging that he was unfairly dismissed and denied contractual benefits.

The applicant argued that his intention for the pay banking arrangement was to save for retirement, noting that while the arrangement was undocumented, his reduced pay appeared on payslips, and full pay was recorded in the respondent’s records. He claimed that the investigation was inadequate and that there were no reasonable grounds for believing he had committed misconduct. He sought reinstatement, compensation for unfair dismissal, and full payment of denied benefits.

The respondent contended that the arrangement was questionable and exposed them to compliance and governance risks, including breaches of the employment contract, the Fair Work Act 2009 and the Code of Conduct. They asserted that they had reasonable grounds for believing misconduct had occurred and that the investigation was properly conducted.

Commissioner Tsang considered whether the respondent’s legal right to dismiss the applicant was exercised harshly or oppressively, concluding that the respondent had reasonable grounds for an honest and genuine belief that the applicant's conduct warranted summary dismissal. Consequently, the Commissioner dismissed the applications.

The decision can be read here. 

The Commission, of its own motion, initiated proceedings to vary the Theatrical Employees (Perth Theatre Trust) Award No 9 of 1983. The Award had not been varied substantively since 1998, and many of its provisions were outdated or obsolete. The Commission provided notice of its intention to vary the Award to parties to the award and relevant organisations, including UnionsWA and the Arts and Culture Trust (the Trust).

The Arts and Culture Trust raised four matters in relation to the proposed variations, including concerns regarding the financial burden of increased overtime rates for casual employees and the Trust’s preference that the travel and laundry allowances be raised on this occasion instead of being perpetually linked to the federal Modern Award. The Trust also suggested a clause providing for an allowance for licensed electricians be removed, due to electricians no longer being employed by the Trust. UnionsWA agreed with the Trust’s proposal to remove the clause pertaining to licensed electricians and expressed a preference for the allowances in the Award to be automatically indexed, but otherwise broadly agreed with the position of the Trust.

The Commission considered the matters raised and ordered that the Award be varied. Variations included the removal of obsolete clauses and the modernising of provisions to align with statutory requirements and facilitate the efficient performance of work, while balancing fairness to employees.

The decision can be read here. 

The applicant, a Safety Operations Business Partner, made an application under section 112 of the Work Health and Safety Act 2020 (WA) (WHS Act), claiming that he had been subjected to discriminatory conduct for a prohibited reason. He alleged that after raising a work health and safety concern, the respondent took discriminatory action against him by placing him on a performance improvement plan (PIP) and subsequently dismissing him.

The respondent acknowledged that dismissing the applicant constituted discriminatory conduct under the WHS Act but argued that the reasons for the PIP and dismissal were unrelated to his safety concerns, and thus the discriminatory conduct was not for a prohibited reason.  The respondent contended that the reasons for the PIP and dismissal included that applicant failed to follow directives regarding how his report should be produced and to not provide the report to anyone outside of his department until it was approved, as well as his antagonistic conduct.

The Tribunal found that the applicant did raise a work health and safety concern and that the respondent engaged in discriminatory conduct by dismissing him. However, the Tribunal concluded that the dismissal was not for a prohibited reason related to the safety concern, but instead due to concerns about his conduct, performance, and failure to follow reasonable instructions and dismissed the application.

The decision can be read here. 

The applicant, a Registered Nurse, claimed that the respondent unfairly dismissed her.  The respondent argued that her employment ended with the expiration of her fixed-term contract and that she was therefore not dismissed.

The applicant was offered a fixed-term contract as a Registered Nurse for a period of one year, with the potential to transfer to permanent employment. She requested an extension of her contract but was not offered such. The applicant contended that because there was the potential for her to be transferred to a permanent position and there were no issues raised with her performance, that not offering her a further contract amounted to dismissal.

The respondent argued that as the applicant’s employment came to an end through the expiry of her fixed-term contract, no dismissal occurred. The respondent claimed that at all times it was expressed to the applicant that there was no guarantee or promise of permanency following the fixed-term contract, and that the applicant was offered a casual position after her fixed-term contract ended, which she declined.

Commissioner Emmanuel found that the applicant's employment contract clearly stated it was for a fixed-term and that there was no obligation to enter into any further employment arrangement. The evidence did not show that the respondent dismissed the applicant. Therefore, the Commissioner concluded that the applicant was not dismissed and dismissed her application for want of jurisdiction.

The decision can be read here.