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Work Health Safety Tribunal dismisses applicant’s discovery application and upholds respondent’s discovery application

The Work Health Safety Tribunal has dismissed an applicant’s application for discovery of documents in a dispute but has required the applicant to discover documents requested by the respondent, finding that the documents sought by the respondent were necessary and relevant, while the documents sought by the applicant were not.

Background

The applicant was employed by the respondent when the  WA Chief Health Officer’s Education Worker (Restrictions on Access) Directions (No. 4), and the Entry Restrictions No. 1 to an Education Facility COVID-19 Vaccination Requirement came into effect. The respondent informed the applicant that he would be stood down without pay as the applicant was not vaccinated and therefore unable to work as he could not enter the workplace.

The applicant made an application under s 26(1) of the Occupational Safety and Health Act 1984 (WA) (OSH Act) for pay and benefits to which they would have been entitled to had he not refused to work under s 26(1) of the OSH Act, on the grounds that as he believed that to continue work would expose him to a risk of imminent and serious injury or imminent and serious harm to their health.

The parties each filed a discovery in relation to the matter. 

Contentions

The applicant’s discovery application sought 45 categories of documents that the applicant contended were relevant for 13 broad reasons.  The respondent’s discovery application sought an order that the applicant discover all correspondence between the applicant and WorkSafe Western Australia (WorkSafe WA) relating to the application made by the applicant under s 25 of the OSH Act. The respondent contended these were relevant due to the WorkSafe WA Application being in relation to the respondent’s mandatory vaccination policy

Findings

The Tribunal noted that under s 27(1)(o) of the Industrial Relations Act 1979 (WA) (IR Act) the Commission has the power to ‘make such orders as may be just’ within respect to the discovery, inspection or production of documents. Further, the Tribunal noted that s 27 of the IR Act applies to the exercise of the jurisdiction of the Tribunal per cl 29 of Schedule 1 of the Work Health and Safety Act 2020 (WA).

The Tribunal considered the legal principles and authorities relating to discovery, including that the party seeking discovery must establish that it is just for the order to be made and necessary for the fair disposal of the case. The Tribunal noted that under common law it must consider whether the documents relate to the matter in question, and if so, would it be just to order discovery.

The Tribunal noted that the documents sought by the respondent were necessary to resolve the matters in dispute. The Tribunal further noted these documents may be relevant to the applicant’s belief about the risk of imminent and serious injury or harm due to mandatory vaccination at the time the applicant formed the belief and purported to refuse to work because of the belief. It was noted by the Tribunal that this may be relevant to the reasonableness of the applicant’s belief. The Tribunal found that the respondent’s requested documents were discoverable.

The Tribunal found that almost all the documents sought by the applicant were not relevant to the main issues in these proceedings, being what the applicant did, and what he believed.. The Tribunal noted that some categories of documents were premature to order discovery of, and that if the applicant later establishes certain matters, then the Tribunal will hear from the parties about whether these categories should be discovered. The Tribunal noted the document’s sought by the applicant did not relate to the matter in question, were not necessary for the fair disposal of the case and it would not be just for the order sought to be made.

The Tribunal issued an order to dismiss the applicant’s discovery application and to require the applicant  within 14 days, to discover the correspondence sought in the respondent’s application.

The decision can be read here.

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Public Service Appeal Board grants application for witness examination before appeal hearing

The Public Service Appeal Board (Board) has granted an application for examination of a witness before the hearing of an appeal, considering that this be in the interests of justice.

Background

The respondent sought an order for the examination of a witness prior to the commencement of an appeal hearing. The listing dates for the appeal hearing had been vacated on two prior occasions. At an undetermined point in time, the witness requiring examination had booked a holiday and had leave approved for dates that included the new listing dates. The respondent was the employer of the witness, and the leave sought by the witness was approved.

Contentions

The respondent contended that the witness would be overseas on the hearing dates. The respondent’s application was supported by affidavits confirming that the witness was available for the earlier listing date but that the witness would be overseas on the new listing date.

The appellant contended that the witness and respondent were aware of the hearing dates before leave was approved and flights were booked; that the application inadequately explained events surrounding this; and that it was open to conclude the application was made to accommodate the witness’s desire not to be inconvenienced. Further, the appellant contended that the order would inconvenience the Board and the parties’ respective legal teams, could deprive them of preparation time, and result in the matter having to be part-heard. The appellant contended that the travel arrangements were made without securing permission to be absent from duty.

Findings

The Board noted s 80L and s 27(1)(o) of the Industrial Relations Act 1979 (WA) empowers the Board to make an order for the examination of a witness, and that the purpose of the discretion do so is to enable the just and expeditious hearing and determination of an appeal. The Board noted it was not required to investigate whether more could be done by the respondent to secure attendance of the witness or the choices the witness made about their involvement in proceedings, and reiterated that the exercise of its discretion was not for the purpose of punishing parties or witnesses for their conduct in the proceedings.

The Board noted that the primary question is whether the interests of justice will be served by granting the order sought. The Board considered the legal authorities and principles relating to the discretion to examine witnesses to show it is conventional and uncontroversial to use where witnesses are going ‘abroad’ and extends to all cases necessary for the purposes of justice. The Board further considered s 120 and 121 of the Evidence Act 1906 (WA) and weighed giving evidence by audio-video link against considerations such as a satisfactory connection and whether evidence ought to be given in person.

The Board noted that ordinarily it was enough for a party to show to the satisfaction of the tribunal that a witness is out of the jurisdiction; that their evidence is material; and that the party cannot procure it for the order to be made. The Board was satisfied this was the case and that the interests of justice would be served by granting the order. The application was upheld, and orders issued for the early examination to occur and for video and audio recording to take place.

The decision can be read here.

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Commission orders the payment of unpaid invoices after worker found to be employee

The Commission has issued an order that an employer pay the balance of outstanding invoices, finding that the worker was an employee and not a contractor, and that the Commission had jurisdiction to hear the claim.

Background

The applicant was engaged as a truck driver from February 2021 to June 2021, working for the respondent across multiple locations. The applicant would be paid after providing the respondent with invoices.t. After the applicant contacted the respondent regarding invoices that were unpaid, the respondent asked the applicant to leave their work accommodation and stopped providing the applicant with work. The respondent did not reimburse the applicant for an invoice in relation to returning home from their work location.

The applicant commenced a denial of contractual benefit claim in the Commission to recover the amount unpaid on the invoices.

Contentions

The applicant contended that the respondent owed them an amount arising out of a contract of employment between the two parties, and that they were dismissed after contacting the respondent regarding these amounts. In relation to being an employee, the applicant contended that the facts of this case varied to the recent High Court decisions of Construction, Forestry, Maritime, Mining and Energy Union & Anor v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd & Anor v Martin Jamsek & Ors [2022] HCA 2  as there was no comprehensive written contract and provided evidence about the nature of the employment relationship.

The respondent contended that the applicant was a contractor and not an employee. Limited contact was made by the respondent with the Commission, and they did not make submissions or appear in proceedings.

Findings

The Commission noted that the contract between the parties was not comprehensive, and did not distinguish whether the applicant was an employee or contractor. The Commission considered the legal authorities and principles relating to characterisation of the work relationship and determined that the applicant was an employee and  was not carrying on a business of their own. The Commission noted particularly that the work undertaken by the applicant was integral to the respondent’s business and the respondent exercised a high degree of control over the applicant’s work.

The Commission determined that the benefits claimed by the applicant arose under the contract of employment. The Commission found that the applicant’s claim was an industrial matter under s 7 of the Industrial Relations Act 1979 (WA). The Commission issued a declaration and order requiring the respondent to pay the applicant the total unpaid amount of the invoices.

The decision can be read here.

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Former Union president unable to be restored to position

The Chief Commissioner has dismissed an application to restore the former President of a Union to his elected position, finding that the applicant was no longer eligible to hold the position, and there was no power to reappoint the applicant in this instance.  The Commission found that subsequent Union elections had elected a new Executive and President democratically, and to intervene would be inconsistent with the principles governing the Commission’s powers.

Background

The applicant was a member of the Western Australian Police Union of Workers (respondent). In October 2018, the applicant was elected as a Director of the respondent’s Board of Directors, and in the same month, was elected to the position of President of the Union.

On 11 February 2021, in response to internal investigations being conducted, the Board of Directors informed the applicant that he was placed on leave with immediate effect, and that he was relieved of all his functions and duties as President of the respondent.

On 7 September 2021, the applicant made an application under s 66 of the Industrial Relations Act 1979 (WA) (Act). The primary relief sought by the applicant was restoration to his role as President and Director of the respondent. Preliminary directions hearings were held by the Commission.

In November 2021, the applicant stood for elections for the respondent’s Board of Directors. The respondent informed the Chief Commissioner that a new Board of Directors and President were elected, and that the applicant was not successful in his bid for election to the Board. On 17 March 2022, the applicant ceased to be a member of the Western Australian Police Force. The respondent filed an application to dismiss under s 27(1)(a) of the Act, raising jurisdictional issues.

Contentions

The respondent contended that the relief sought by the applicant would require the Chief Commissioner to interfere with a valid and duly held election, and that such relief was not available under s 66(2) of the Act, which limits the relief to orders and directions relating to observance and manner of observance of rules. The respondent further contended that the applicant, ceasing to be a member of the Police Force, had a direct bearing on the applicant’s claim under s 66 of the Act. This was because the applicant was no longer eligible to be a member of the respondent under its Rules, and therefore could not receive the relief that he was seeking.

The applicant submitted that his application clearly related to the respondent’s Rules and their observance and non-observance. In particular, the applicant, as the then President of the respondent, was denied the capacity to exercise his functions and powers, directly contrary to the Rules of the respondent and the Employment Agreement between himself and the respondent. The applicant submitted that relevant facts should be established, and the case before the Chief Commissioner should be heard. 

Findings

The Chief Commissioner noted that there was an inseparable link between a person’s status as a member of the Police Force under the Police Act and a person’s eligibility to be a member of the respondent and hold the office of President of the respondent. The Chief Commissioner found that the cessation of the applicant’s engagement as a police officer, deprived the Commission of the power to make an order to restore the applicant to the position of President.

Referring to Stacey v Civil Service Association of Western Australia [2007] WAIRC 00568 and the terms of s 66(2), the Chief Commissioner confirmed that the primary purpose of the power to be exercised is to ensure observance of an organisation’s Rules. The Commission noted that to restore the applicant to the position of President of the respondent, in circumstances where the applicant was ineligible for that office, would be a contravention of the respondent’s Rules, and such an order could not be made under s 66.

The Chief Commissioner further noted that as there was no dispute that the election was duly held and that the applicant was not successful, to restore the applicant to his former position by removing the subsequently democratically elected President and Board of Directors, would subjugate the will of the members and be at odds with the objects of the Act.

The decision can be read here.

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