A ceremonial sitting of the Western Australian Industrial Relations Commission will be convened to farewell Chief Commissioner Scott on her retirement.
Please direct any queries to the Commission's Registry by email to Registry@wairc.wa.gov.au.
Organisations are required, from time to time, to appoint persons (known as board members) to the Public Service Appeal Board (PSAB) under s 80H of the Industrial Relations Act 1979.
Regulation 120(1) of the Industrial Relations Commission Regulations 2005 (Regulations) provides for a member of a constituent authority (such as a PSAB) to be paid such remuneration as the Chief Commissioner from time to time determines.
In light of administration and legal implications relating to tax deductions and potential superannuation entitlements, the Chief Commissioner has reviewed the arrangement for the payment of a sitting fee for members sitting as part of a constituent authority. Part of that review has involved consultation with affected organisations.
Having considered all of the circumstances, the Chief Commissioner has determined that, effective from 5 January 2021, payment of sitting fees for all new matters will cease. However, reimbursement for out of pocket expenses incurred under reg 120(6) of the Regulations will remain available.
4 JANUARY 2021
The Commission has dismissed an application which contended that The Australian Nursing Federation, Industrial Union of Workers Perth (ANFIUWP) breached its Union rules by failing to comply with its Objects.
The applicant said that she was a member of the ANFIUWP and that it did not:
- promote and protect her interests as a member regarding the Enterprise Bargaining Agreement (EBA) with her employer, St John of God in 2018;
- represent her industrial interests with her employer; and
- improve her conditions of employment after numerous complaints to it about work issues, in accordance with the EBA.
The applicant sought a declaration that the ANFIUWP breached r 3 – Objects of its Rules and that the Chief Commissioner investigate why the alleged breaches had been allowed to continue and that her complaints were not dealt with by the union.
The ANFIUWP said that it is a State organisation registered under the Industrial Relations Act 1979 (WA) (IR Act), and that it is jurisdictionally barred from representing the applicant as she and her employer are a national system employee and employer. The ANFIUWP also denied breaching r 3 – Objects of its Rules because the rule is aspirational and not able to be breached.
Chief Commissioner Scott reinforced the separate and distinct identities between State registered organisations and federal organisations with state branches. Scott CC found that applications made under the IR Act, like in the present case, can only be made against a State registered organisation and not the state branch of a federal organisation.
On the limited material before her, Scott CC found that as the applicant was employed by a national system employer and the industrial instrument that covered her employer was an enterprise agreement made pursuant to the Fair Work Act 2009 (Cth), her industrial interests would be covered by the Australian Nurses and Midwifery Federation, a federal organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth), rather than the State registered organisation to which her claim related.
The application was dismissed for lack of jurisdiction.
The decision can be read here.
The Occupational Health and Safety Tribunal (Tribunal) has dismissed an application to review the WorkSafe Commissioner’s decision to affirm an improvement notice issued to a company on the basis that the application was made out of time and that it does not have the power to grant an extension.
A WorkSafe Inspector had issued an improvement notice on 20 July 2020 to a company. A request to the WorkSafe Commissioner to review the improvement notice was submitted on 21 August 2020, and on 20 October 2020, the company received notification that the WorkSafe Commissioner had affirmed the notice.
The company then sought a review of the WorkSafe Commissioner’s decision to affirm the improvement notice. It submitted to the Tribunal that it had sought information from an officer of the Department of Mines, Industry Regulation and Safety concerning the process for further review of the decision, but the information was provided outside of the timeframe specified in the Occupational Safety and Health Act 1984 (OSH Act). The company filed its referral with the Tribunal the following day.
The WorkSafe Commissioner advised the Tribunal that it would be seeking an order to dismiss the matter as the company had not referred the matter to the Tribunal within the specified time limit.
The Tribunal noted that the company’s submissions concerned the reasons for the delay. The Tribunal found, however, that it does not have the power to extend the time limit and thus did not have the discretion to consider the reasons for the delay to extend the time limit.
The Tribunal dismissed the application.
The decision can be read here.
The Industrial Magistrate has dismissed a claim for redundancy pay by a national system employee on the basis that the respondent was a ‘small business employer’ within the meaning of the Fair Work Act 2009 (Cth) (FW Act) and was excluded from paying the employee redundancy pay.
Under the FW Act, a ‘small business employer’ employs fewer than 15 employees and is excluded from having to pay redundancy pay to an employee. The FW Act also states that any casual employee is not to be counted as an employee unless they are employed on a ‘regular and systematic’ basis.
The claimant contended that the respondent employed 19 employees at the time she was given written notice of termination of employment and was therefore entitled to redundancy pay of seven weeks at the base rate of pay.
The claimant argued that on top of the 12 employees included in the respondent’s count for the purposes of determining whether it was a ‘small business employer’, another five casual employees and two shareholders should also be included in the count.
Industrial Magistrate Scaddan found, on the evidence, that the other five casual employees were not employed on a ‘regular and systematic’ basis. Scaddan IM also found that there was no contract of employment between the two shareholders and the respondent, and her Honour was not satisfied that they were employees.
Scaddan IM found that, as the respondent only employed 12 employees at the time of the claimant’s termination of employment, it was a ‘small business employer’ and was excluded from paying the claimant redundancy pay.
The claim was dismissed.
The decision can be read here.