The applicant was employed by the respondent as the Manager of a caravan park and accommodation, until he was advised that he was no longer the Manager, and his duties were reduced to taking bookings. The applicant claimed these changes were made unilaterally and amounted to a repudiation of his employment contract, leading to his unfair dismissal claim.

The respondent denied that the applicant was dismissed, asserting that he voluntarily resigned from his position.  Additionally, the respondent argued it was a national system employer under the Fair Work Act 2009, which meant the Commission lacked jurisdiction to hear the applicant’s claim.

Commissioner Walkington determined that the respondent was not a trading corporation, as the respondent’s trading activities represent only a small portion of the respondent’s income, and as the overall nature of the activities of the organisation was not that of a trading corporation. The evidence showed that the respondent’s primary purpose is to assist and support community members through housing, education, employment, social welfare, and cultural initiatives. The Commissioner concluded that the activities of the respondent, including the receipt of rental payments and community contribution fees, did not constitute trading activities. As a result, Commissioner Walkington determined that the Commission did have jurisdiction to hear the matter.

The decision can be read here.

The Tribunal has dismissed an application made by a Safety Operations Business Partner relating to his dismissal, under s 112 of the Work Health and Safety Act 2020 (WA) (WHS Act).

The applicant, who was dismissed by the respondent in April 2023, applied to the Work Health and Safety Tribunal, believing he was the subject of discriminatory conduct for a prohibited reason. He maintained that after he raised a work health and safety issue within the business, the respondent took discriminatory action against him by placing him on a performance plan and later dismissing him.

The respondent applied to have the application dismissed. The respondent alleged that the applicant was facing the disciplinary proceedings due to his breach of its Code of Conduct (Code). The respondent accepted that dismissing the applicant amounted to discriminatory conduct under the WHS Act but disagreed about whether the performance plan amounted to discriminatory conduct. It maintained, however, that the performance plan and subsequent dismissal was not for prohibited reason, but rather, because of the applicant’s preceding misconduct.

The Tribunal found that the respondent did take discriminatory action against the applicant when it dismissed him. However, it held that the respondent did so because the applicant breached the Code. This was, therefore, for a reason other than a prohibited reason. In relation to the performance plan, the Tribunal determined that the plan did not alter the applicant’s employment position to his detriment, rather, it sought to support and guide his performance. As such, the Tribunal declined to make an order in the applicant’s favour and dismissed the application.

The decision can be read here.

The applicant lodged an application for an interpretation of clause 28 of the Department of Justice Prison Officers’ Industrial Agreement 2022, which was opposed by the respondent union, which argued that the application was improper and constituted an abuse of process because it duplicated issues already addressed in an existing case before the Industrial Magistrates Court (IMC).

The applicant contended that the application was justified and should proceed because it sought to address a general issue affecting all officers and was not merely a duplication of the IMC proceedings.

Commissioner Walkington acknowledged the respondent’s concerns regarding the potential for conflicting outcomes between the two proceedings, but determined the application should not be dismissed, as it sought to clarify obligations and prevent further litigation.

The decision can be read here. 

The Commission, of its own motion, has issued a State Wage Order (SWO) to adjust the minimum wage for employees under the Minimum Conditions of Employment Act 1993, award minimum wages, and minimum rates of pay for employees with disability operating under the Supported Wage System.

The Minister, union, industry and welfare bodies provided submissions for the consideration of the Commission in Court Session. Among these submissions, the Chamber of Commerce and Industry of Western Australia advocated a cautious approach to the setting of the State Minimum Wage (SMW), while UnionsWA and the Western Australian Council for Social Services proposed a significant increase of 7.359% to award wages.  The Minister supported an increase in line with the Fair Work Commission decision in the 2023-24  Annual Wage Review, which increased the National Minimum Wage (NMW) and modern award minimum wages by 3.75%.  

Additionally, all parties supported the re-alignment of the SMW from the C14 award rate to the C13 award rate, which would increase the SMW by a one off 2.3%.

The Commission in Court Session considered several key factors including the State and national economies, living standards and needs of low paid employees, and capacity of employers as a whole to bear the cost of increased wages and salaries.

The Commission in Court Session concluded that an increase in the SMW and award minimum wages was necessary to meet the needs of low-paid employees without imposing undue financial strain on employers, increasing award minimum wages by 4.0% and the SMW by 6.3%, comprising the one off increase of 2.3% followed by a 4% increase.

 The decision can be read here, and supplementary decision here.

The Western Australian Local Government Association (WALGA) appealed two procedural directions issued by the Commission which required WALGA to produce documents related to its sector survey. These directions were part of ongoing proceedings pertaining to an application to amend specific awards. WALGA’s resistance to producing the documents led to further hearings, with WASU arguing that the documents were necessary for cross-examination.

The Full Bench reviewed the appeal grounds to determine if they raised significant legal issues warranting intervention. It found that the procedural decisions did not involve jurisdictional errors significant enough to meet the public interest test for leave to appeal. The Full Bench determined that the appeal primarily challenged the outcome of the Commission’s procedural decision rather than raising any jurisdictional issue, and determined that the documents were self-evidently relevant to proceedings, therefore dismissing the appeal.

 The decision can be read here.