The Commission's Registry has moved to Level 2

The Commission's Registry has temporarily relocated to Level 2, 111 St Georges Terrace, Perth, while renovations to Level 17 take place. The Registry's office opening hours remain unchanged.

Latest News

Application to vary the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977

NOTICE is given that the Commission, of its Own Motion, pursuant to section 40B of the Industrial Relations Act 1979 (WA), intends to vary the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Shop & Warehouse Award).

The proposed variations are published in the annexed document and are being made for the purpose of updating and modernising the Shop & Warehouse Award.

The full Notice can be read here.

Read More

Long Service Leave Contravention Upheld: Employment found to be Continuous

Under consideration by Industrial Magistrate Tsang was an application, seeking a review of a compliance notice issued by the respondent, Ms Catalucci, an Industrial Inspector, under the Industrial Relations Act 1979 (WA). The notice alleged that the applicant contravened the Long Service Leave Act 1958 (WA) by not paying pro rata long service leave to Mr McCormick upon his employment termination in October 2020. The compliance notice required the applicant to remedy the contravention by paying Mr McCormick $9,345.21.

The applicant did not dispute the employment period or the calculation but argued that Mr McCormick was not entitled to long service leave because his two employment periods were not continuous. The central legal question was whether the termination of Mr McCormick’s apprenticeship contract, leading to a break in employment, affected his entitlement to long service leave.

Tsang IM analysed the statutory construction of “continuous employment” under the Long Service Leave Act. Tsang IM rejected the applicant’s arguments, finding that the completion of the apprenticeship did not terminate Mr McCormick’s employment relationship, and his subsequent role as an Electrician constituted continuous employment. Tsang IM emphasised the ordinary meaning of the statute, its legislative purpose, and the absence of specific provisions deeming the termination of an apprenticeship as a break in continuous employment.

Ultimately, Tsang IM concluded that Mr McCormick’s employment was continuous, lasting from 23 October 2012 to 29 October 2020. Consequently, the applicant was obligated to pay pro rata long service leave, and since the company failed to prove otherwise, the compliance notice was confirmed, and the application was dismissed.

Read More

Interim Board of Directors Established

In an application under section 66 of the Industrial Relations Act 1979 (WA), the applicant sought an order to establish an interim Board of Directors due to a misalignment of rules between the respondent and its federal counterpart, the Police Federation of Australia Western Australia Police Branch (PFAWA). Chief Commissioner Kenner affirmed the applicant’s standing to bring the proceedings, as a member of the respondent.

Due to changes in the PFAWA’s rules, it was doubtful that the respondent’s section 71 certificate, relieving it from holding elections for office holders, was effective. Consequently, the respondent aims to realign its rules with the PFAWA and seek a new section 71 certificate. Simultaneously, the applicant sought the establishment of an Interim Board of Directors to manage the respondent’s affairs during this transitional phase.

After reviewing the application and hearing both parties, Kenner CC decided to establish an Interim Board of Directors. Comprising members elected to the PFAWA Branch Executive, this Interim Board will function with all of the powers of the Board, outlined in the respondent’s rules. Kenner CC’s order exempts the respondent from holding an election during the order’s duration. The order will cease upon rule alterations being made and the issuance of a new section 71 certificate by the Full Bench.

The decision can be read here.

Read More

Commission considers when travelling is “time worked”

The applicant Union’s member was a police officer who travelled to the UK in March 2021 as part of a recruitment drive, promoting living and working as a police officer in Western Australia.

The Union and the Police Commissioner were in dispute about whether the member was entitled to overtime pay for the hours outside his rostered ordinary hours, while he was on the long-haul flights to and from London, and while he was waiting at the respective airports.

The issue was what the relevant overtime clause in the applicable industrial agreement meant when it referred to “all time worked.”

The Union invoked s 46 of the Industrial Relations Act 1979 (WA) to resolve the question of the meaning of ‘all time worked’ in the Western Australian Police Force Industrial Agreement 2022. Section 46 empowers the Industrial Relations Commission to declare the true interpretation of an award or industrial agreement that is in force.

The Union argued that any time that an officer is doing an activity because they are instructed, directed or required by the Police Commissioner to do it, they are working. The Union said that if an officer travels on an 18-hour flight paid for, organised by and required by the Police Commissioner, time spent on the flight is time spent working.

The Police Commissioner argued that while time spent on a flight may in some circumstances be time spent working, it would only be time spent working if during that time the officer was on duty in the sense of either being rostered on duty or being directed outside of rostered hours to engage in policing activities.

Senior Commissioner Cosentino analysed the text of the industrial agreement to ascertain what was the objective intention of the parties when referring to “all time worked” in the overtime clause. The Senior Commissioner noted that other provisions of the Agreement contained themes that indicated rosters are the primary means of determining when an officer is on-duty, that being on-duty and working are interchangeable, that there is intended to be a clear line between when an officer is on duty and when an officer is off duty, and time spent travelling to and from work is not itself time worked.

The Senior Commissioner then considered what being on duty involved. In this regard, the Police Force Regulations provide strong indications of what is and is not consistent with being on duty. An officer must be able to devote themselves “exclusively and zealously” to the discharge of their duties when on duty, which indicates that being on duty that is generally inconsistent with the officer, at the same time, being able to engage in private activities, such as sleeping, enjoying entertainment or engaging in private correspondence.

The Decision can be read here.

Read More

View all news