The Western Australian Industrial Relations Commission

The Commission, of its own motion, initiated proceedings to vary the Building Trades (Construction) Award 1987 and the Building Trades Award 1968. The variations aim to simplify and modernise the scope clauses of the Awards while largely maintaining their existing coverage.

The Building Trades (Construction) Award 1987 now defines scope by reference to the ‘on-site building and construction industry,’ and the Building Trades Award 1968 extends coverage to all industries employing workers in the occupations covered by the award, unless they are covered by another award. Other variations include adding a classification for tradespersons with an apprenticeship in concreting, clarifying the application to labour hire businesses and group training services, and ensuring the awards do not apply to employees covered by another State award or the national industrial relations system.

Several unions, employers, and industry groups were notified of the proposed variations, and no individual, organisation, or employer advised the Commission of any opposition to the proposed variations. Accordingly, The Commission in Court Session ordered the awards be amended as proposed.

The decision can be read here.

The appellant employer appealed the decision of an Industrial Magistrate, who found that the employer was required to pay overtime payments to the respondent Union’s member for work performed on a public holiday.  In his decision, Industrial Magistrate Kucera ordered the employer to pay the overtime pay owed to the employee as well as a $15,000 fine.

The appeal grounds related broadly to the Industrial Magistrate’s interpretation of the Industrial Agreement. The employer argued that the Agreement was unambiguous on the matter of public holiday pay being included in the annualised salary and the employee’s rostered hours including the public holiday. Other grounds challenged the penalty imposed, including by alleging the Industrial Magistrate incorrectly applied the maximum penalty for a body corporate to the employer, when the employer was an individual (the Minister).

The Union cross appealed the penalty decision, contending that the penalty was inadequate and that costs should have been awarded to the Union.

The Full Bench, by a majority comprising Commissioner Emmanuel and Commissioner Tsang, upheld the first and second grounds of the appeal, finding that Industrial Magistrate Kucera erred in finding that the construction of the Industrial Agreement was ambiguous on the matter of overtime and public holidays, and in finding that the employee was entitled to a paid day off on the public holiday. The majority relied on the terms of a clause in the Industrial Agreement which provided that the Annualised Salary compensates officers for working on public holidays ‘except where specifically provided for in this Agreement.’ The majority considered this meant that there must be express provision made in the Industrial Agreement itself. There being no such express provision, the Industrial Agreement did not entitle the employee to overtime pay for hours worked on a public holiday or a paid day off.

As a result of upholding the first two grounds of the appeal, it was not necessary for the majority to consider grounds 3-8.

The Senior Commissioner dissented in relation to the construction of the Industrial Agreement. She agreed with the Industrial Magistrate’s construction. She also considered the Industrial Magistrate was correct to have assessed the penalty for contravention on the basis that the employer (being the State) was a body corporate.

The Full Bench unanimously dismissed the Union’s cross-appeal for reasons including the fact that the Union had not claimed costs in the proceedings at first instance and so could not raise that matter on appeal.

The decision can be read here.

The Western Australian Grain Handling Salaried Officers Association (Union of Workers) (Organisation) is an industrial organisation of employees registered under s 53 of the Industrial Relations Act 1979.

The Organisation’s members were primarily drawn from one employer, CBH Pty Ltd. During the 1990s, the organisation and CBH Pty Ltd were parties to State awards and agreements. However, since the Workplace Relations Act 1996 changes which resulted in CHB Pty Ltd being a national system employer, the State industrial instruments have not been operative and the Commission has had little involvement with the Organisation and its members. This had naturally led to a decline in the Organisation’s membership and activities.

The Organisation applied to the Registrar for the cancellation of its registration due to the significant decline in membership. The Registrar, in turn, made an application to the Commission in Court Session to cancel the Organisation's registration, citing sufficient grounds for doing so.

The grounds included the Organisation's request for cancellation and the fact that its membership was less than 200 members. The Organisation's request was made in the approved form and included a statutory declaration confirming it had 20 financial members. Additionally, a special general meeting was conducted, achieving quorum, and it was unanimously resolved to dissolve the Organisation.

After hearing counsel on behalf of the Registrar and Organisation, the Commission in Court Session made an order to cancel the Organisation's registration effective from 10 December 2024.

The decision can be read here.

In this decision, the Full Bench considered the purpose of a hearing for ‘speaking to the minutes.’

In their earlier reasons for decision in the matter FBA 9/2024, the Full Bench dismissed the appeal made by the appellant, who had been dismissed from her role as a teacher. Being a final decision, the order of dismissal was in the form of minutes of proposed order. The parties were entitled to speak to the matters contained in these minutes to ensure the order was consistent with the Commission’s reasons, but not to reargue the case, raise further matters or argue the decision of the Full Bench were wrong.

Despite being advised of the purpose of speaking, the appellant filed a document to reargue her appeal and contend that some aspects of the decision of the Full Bench were erroneous.

The Full Bench explained that the speaking to the minutes was not an opportunity to reargue the appeal or take issue with the decision because the appellant disagreed with it.

The decision can be read here.