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No jurisdiction for Public Service Appeal Board to hear appeal against provisional disciplinary proceedings

The Public Service Appeal Board has reiterated that it does not have jurisdiction to hear matters where no final decision has been made. 

The appellant was advised by his employer (respondent) of an investigation of allegations of breach of discipline under Part 5 of the Public Sector Management Act 1994 (WA) (PSM Act). The respondent indicated that the allegations were substantiated and gave the appellant a letter proposing disciplinary action in the form of a reduction in salary and classification, and issuance of a reprimand. The appellant was given an opportunity to comment on the proposed disciplinary action. 

Prior to providing a response, the appellant commenced an appeal to the Appeal Board. At the time of the hearing, no final decision had been made as to the disciplinary action to be taken. 

The Appeal Board reiterated that as the letter was a provisional decision, no final decision had been made as to the disciplinary action, and no right of appeal under s 78(1)(b)(iv) of the PSM Act had been enlivened. The Appeal Board held that it did not have jurisdiction to determine the matter, and the appeal was dismissed. 

The decision can be read here.

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Commission dismisses unfair dismissal application made out of time

The Commission has dismissed an application from an employee made 72 days out of time, finding that the applicant failed to act promptly in filing the application and did not provide a reasonable explanation for doing so. 

Background

The applicant was engaged as an independent contractor by a not for profit. The applicant initially brought an unfair dismissal claim with the Fair Work Commission (FWC), within the 21-day time limit under the Fair Work Act 2009 (Cth). On 29 April 2021, the respondent advised the applicant in its submissions to the FWC that it believed it was not a national system employer. 

The applicant commenced an unfair dismissal claim in the Commission on 2 June 2021. The Commission’s Registry attempted to contact the applicant regarding deficiencies in the application, but did not receive a response until 10 June 2021, on which day the application was formally filed. 

Contentions 

The applicant contended that she had a lack of familiarity with the State system of employment law and the application should be accepted and heard out of time. The respondent contended that it notified the applicant at the earliest opportunity about the issue of jurisdiction, and further, that the claim had no merits as the applicant was a contractor and not an employee. 

Findings 

Commissioner Walkington accepted that an error of jurisdiction may occur in cases as the current, where the identity of the employer is not clear. The Commissioner found, however, that once the applicant decided that her claim was not in the correct jurisdiction, she should have acted promptly on this information, particularly where the applicant had not provided any other explanation for the delay. 

Further, the learned Commissioner, in looking to the merits of the claim, found that the relationship was one of an independent contractor and principal, and that the claim of unfair dismissal could not succeed. The application was dismissed. 

The decision can be read here.

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Commission finds that employee not entitled to overtime payments for time spent on employer provided transport to and from work site

The Commission has found that an employee was not entitled to overtime payments for time spent on an employer provided bus commuting to a work site. The Commission found that while the employee was compelled to take the bus, the employee was not performing work at this time under the terms of the contract of employment. 

Background 

The applicant was employed as an electrician by the respondent. The respondent held a contract with Albermarle Lithium, providing workers for a plant in Kemerton. Albermarle established a transport depot in a carpark 12 kms, or 20 minutes, from the plant. The plant was only accessible by bus from this carpark, and contractors, including the respondent, would transport workers by bus to the plant. As such, the applicant, and other workers, were compelled to commute to the plant in this manner each day. 

The applicant contended that he had a contractual entitlement to overtime pay and a site allowance for the time spent on the bus, and brought a claim under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA). 

Contentions 

The applicant contended that the words ‘work performed’ in the clause of the employment contract referring to overtime payments, should be read broadly to refer to work performed whenever an employee is attending at a place and time as required by the employer. In the alternative, the applicant contended that if this is not the correct construction of the employment contract, that he was entitled to be remunerated for the time spent on the bus and at the plant, prior to commencing, on the grounds of unjust enrichment. 

The respondent contended that the words ‘work performed’ were limited to refer to the time when the employee was engaged in their trade discipline, and that this was supported by looking to the text, context, and purpose of the clauses within the employment contract. 

Findings 

Senior Commissioner Cosentino noted that while relevant authorities pertaining to the meaning of the phrase ‘work’ provided guidance, that whether the bus ride constituted ‘work’, would depend on the construction of the employment contract and facts of the case, citing Seo v Bindaree Food Group and Federated Municipal and Shire Council Employees Union of Australia v Shire of Albany (1990) 32 IR 470. 

The Senior Commissioner noted that the employment contract referred to work as starting and finishing at the work site, being the location ‘where he performs operational and productive work involving the application of trade skills, and functions associated with the application of trade skills.’  As such, reference to ‘work performed’ in the overtime clause, would similarly refer to activities including skills of the trade, productive work, or associated functions. 

The Senior Commissioner found that the applicant was not entitled to overtime payments for the time spent on the bus. While he was directed to attend the carpark and be transported by bus, he was able to engage in entirely private activities while on the bus, and that he was not performing duties associated with his trade or job functions at that time. 

The Senior Commissioner further concluded that it was not within the Commission’s jurisdiction in a claim for denied contractual benefits under s 29(1)(b)(ii) of the Act, to determine an alternative claim for unjust enrichment. 

The application was dismissed.
The decision can be read here.

 

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State Minimum Wage set at $819.90 per week

The Commission in Court Session has handed down its decision in the 2022 State Wage Case.

The Commission has increased the State Minimum Wage by $40.90 per week, which brings the State Minimum Wage to $819.90 per week from 1 July 2022.  The Commission also increased award rates up to the C10 classification rate by $40.90 per week, and increased rates of pay for award classifications at the C10 classification and above by 4.65%.

The Commission’s reasons for decision and minutes of proposed order were handed down at 3:30pm, Thursday 23 June 2022

The Commission’s statement in relation to its decision can be read here. 

A full copy of the Commission’s Reasons for Decision can be read here.

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