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Full Bench affirms Commission’s jurisdiction
The Full Bench has upheld an appeal in relation to an application regarding the termination of the applicant union member’s employment as a lecturer with the respondent.
At the first instance, the appellant union lodged an application on behalf of its member, a lecturer at the respondent institution who was terminated from his employment. The application sought interim and final relief, including reinstatement or re-employment and continuity of service. The respondent argued that the Commission lacked jurisdiction to hear the matter, as the appellant union's member had standing to appeal his dismissal under s 78(2) of the Public Sector Management Act 1984 (PSM Act) instead. Commissioner Tsang upheld the respondent's arguments and dismissed the application for want of jurisdiction.
The appellant contested the Commission's decision, contending that the term "refer" in the PSM Act should be distinguished from "appeal" in the Industrial Relations Act 1979, thus maintaining the Commission's broader jurisdiction. Conversely, the respondent contended that the Commission's jurisdiction is excluded by specific regimes covering disciplinary matters and appeals in other legislation. They argued that a broad interpretation of "appeal", encompassed any review application to a higher tribunal.
The appeal primarily revolved around whether the legislative framework establishes separate mechanisms for handling disciplinary matters and appeals, with the Commission's jurisdiction being available only when there is no such separate scheme in place. Ultimately, the Full Bench upheld the appeal, quashing the original order.
The decision can be read here.
Decision issued Monday, 6 May 2024.
Advertising Manager partially awarded additional payments
The applicant, who was employed as an Advertising Manager, filed a claim for denied contractual benefits against his employer alleging that he was entitled to additional payments under his contract as compensation for taking on increased responsibilities. The applicant contended that the respondent agreed to pay him an extra $10,000 per quarter for these added duties, amounting to nearly $18,000 across two quarters. The applicant sought a declaration that he had been wrongfully denied these contractual benefits and requested payment of the full amount.
The respondent contended that any entitlement to the quarterly payments was contingent upon the applicant meeting Key Performance Indicators (KPIs), which he allegedly failed to do. The respondent asserted that the applicant's failure to meet these KPIs justified the denial of the payments claimed. It was determined that the agreement between the applicant and respondent for additional quarterly compensation was not contingent upon meeting KPIs. Therefore, the respondent's failure to pay the applicant for the completed quarter was deemed a breach of contract.
Regarding the July-September quarter, the applicant's entitlement to payment was contingent upon his completion of the entire quarter in the role with increased responsibilities. However, since he was removed from that role before the quarter was completed, Commissioner Kucera ruled that he was not entitled to a pro-rata payment for that period. The Commissioner ordered the respondent to pay the applicant the sum of $10,000 for the April-June quarter, dismissing the remainder of his claim.
The decision can be read here.
Decision issued Thursday, 11 April 2024.
Employee not eligible for ordinary and public holiday pay concurrently
The applicant, employed as a Funeral Director’s Assistant, filed a claim for denied contractual benefits on the basis that he believed the respondent, his employer, breached his contract by failing to pay him double time and a half for hours worked on public holidays.
The applicant contended that the language used in both the contract and the attached overtime and allowances sheet implied an additional entitlement for work on public holidays, distinct from ordinary hours. The applicant cited past practice between the parties, where he received 250% of his ordinary rate for public holiday work.
The respondent contended that public holiday hours are not ordinary hours and therefore not subject to ordinary pay, entitling the applicant to either ordinary pay or 250% of his base rate for hours worked on the holiday, but not both simultaneously. As the contract does not address public holidays or payment for absences on such days, the respondent referred to the applicable award which stipulates payment at 200% of the ordinary rate for public holiday work.
Commissioner Kucera acknowledged the challenges faced by the applicant, who had previously received dual payment for public holiday work. However, based on the contract terms and analysis of the award, the Commissioner determined that the applicant was entitled to either a paid day off at ordinary rates or double time and a half for hours worked on public holidays, but not both concurrently. The Commissioner dismissed the application, finding that the applicant had been correctly paid in accordance with his contract of employment.
The decision can be read here.
Decision issued Tuesday, 26 March 2024.
Determination of wage and allowance increases in a Local Government Agreement
The City of Albany and the Western Australian Administrative, Clerical and Services Union of Employees jointly applied to register the City of Albany Industrial Agreement 2023, and made application for the Commission to determine wage rate increases and monetary allowances.
The parties agreed on most terms of the proposed 2023 Agreement but differed on wage increases, allowance adjustments, and post-nominal expiry date provisions. The Union advocated for higher wage increases and post-expiry wage increases linked to Perth's Consumer Price Index (CPI), citing consistency with past agreements and the need to counter rising living costs. They highlighted the City's financial strength and positive economic outlook as supporting factors. Conversely, the City proposed fixed percentage increases, citing budgetary certainty and the volatile inflationary environment.
Regarding allowances, the Union sought increases on July 1 of 2023, 2024, and 2025, based on wage adjustments or Perth CPI, citing past practices. However, historical evidence revealed variations in past agreements, with some providing fixed increases or CPI-based adjustments. Concerning post-nominal expiry date increases, the Union proposed a clause for inflation-linked wage increases if no new agreement was reached or initiated by the City after the nominal expiry date. However, the City opposed this, citing past challenges and potential hindrances to bargaining efforts.
Senior Commissioner Cosentino made orders that the Agreement include annual wage increases of 4.5%, 4% and 4% across three years, a one-off payment for Outside Employees, wage-related allowance increases corresponding to wage increases, and expense related allowance increases in accordance with annual changes in expenses. The Senior Commissioner decided against the inclusion of post-nominal expiry date increases, noting that such clauses could impede bargaining.
The decision can be read here.
Decision issued Tuesday, 14 May 2024.
Farm Employees' Award reviewed
The Commission, of its own motion, reviewed the Farm Employees’ Award, deferring certain proposed changes until after determination of Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00901. These deferred matters included minimum hours for part-time employees and transitional provisions for implementing changes in the dairy industry. Orders were later made in Commission’s Own Motion v (Not Applicable) [2023] WAIRC 00912, expanding the scope of the Award to include dairy farm employees.
In light of this expansion, interested parties conferred on the adjourned matters, reaching a consensus position on issues such as minimum hours for part-time dairy farm employees and transitional provisions. This consensus aimed to balance the interests of employers and employees in the industry.
Senior Commissioner Cosentino considered the interested parties’ consensus position to strike an appropriate balance between employer and employee interests. The agreed variations, outlined in the Schedule, were deemed desirable to ensure fairness to employees while facilitating efficient work organisation within the industry. These variations included new definitions related to dairy farming and revised clauses concerning the employment relationship, particularly for part-time employees in dairying. The new clauses emphasised written agreements on work patterns and minimum engagement requirements for part-time employees in the dairy sector.
The decision can be read here.
Decision issued Monday, 25 March 2024.