The Commission in Court Session (CICS) has reviewed the operation of the COVID-19 Flexible Leave Arrangements General Order and the JobKeeper General Order and has concluded that they will cease to have effect on 31 and 28 March 2021, respectively.

Leave Flexibility General Order

On 14 April 2020, the CICS issued a General Order amidst the COVID-19 pandemic to provide for flexible leave arrangements that allowed state system employees to take unpaid pandemic leave, annual leave on half-pay and annual leave in advance.

On 22 July 2020, the Commission reviewed the General Order of its own motion and extended its operation until 31 March 2020.

In mid-March 2021, the Commission further reviewed the General Order of its own motion and received responses from the parties. Except for the Chamber of Commerce and Industry of Western Australia, the parties considered that the General Order has served its purpose and ought not to continue in effect.

The CICS concluded that a further extension of the General Order is unnecessary at this time. It will cease to have effect on 31 March 2021.

This Statement can be read here.

JobKeeper General Order

On 15 May 2020, the CICS issued a General Order to provide employers with further flexibility to manage employment arrangements in a manner that supported the JobKeeper Scheme.

In mid-March 2021, the Commission reviewed the operation of the General Order of its own motion and sought responses from the parties. The parties reported that given that the General Order is directly linked to the Federal JobKeeper Scheme which ended on 28 March 2021, it was considered appropriate that the General Order cease to have effect in accordance with its terms.

It ceased to have effect on 28 March 2021.

This Statement can be read here.

The Industrial Magistrate has imposed penalties totalling $53,000 on a finance company and its director for a failure to pay an employee entitlements under the Banking, Finance and Insurance Award 2010 (Cth) (Award).

Background

On 13 June 2019, Industrial Magistrate Scaddan found that the First Respondent, the finance company, contravened the Fair Work Act 2009 (Cth) (Act) by:

• failing to pay the claimant, the employee, an amount under the Award; and
• failing to comply with the National Employment Standards (NES), and in doing so, contravening a civil remedy provision in failing to pay the amount.

Further, the First Respondent was found to have contravened the Award by failing to provide copies of the Award and the NES to the claimant, as well as failing to comply with the Fair Work Regulations 2009 (Cth) by not keeping and maintaining certain prescribed records of employment.

On appeal, the Second Respondent, the director, was found to be involved in, and liable for, the First Respondent’s contraventions of the Act comprising of the failures to pay the claimant his entitlements under the Award and NES. However, he was not found to be involved in, or liable for, the First Respondent’s failure to provide copies of the Award and the NES, and its failure to keep certain employment records.

Following the claimant’s successful appeal to the Federal Court of Australia, the question of penalties was remitted back to the Industrial Magistrates Court for further hearing and determination.

Further Reasons for decision

The claimant contended that the respondents’ conduct was a deliberate exploitation of a young employee, that they lacked contrition, failed to cooperate with the claimant when he raised concerns, and that they profited from the contraventions. He proposed a penalty of $115,000 for the First Respondent and $17,000 for the Second Respondent.

The respondents contended that they did not profit from its contraventions, have no prior contraventions, that the contraventions were not deliberate, that they had demonstrated contrition, and had made a payment for the sum ordered following the decision at first instance. They proposed a penalty of $25,000 for the First Respondent and $5,000 for the Second Respondent.

Industrial Magistrate Scaddan noted that the following considerations were significant in assessing penalties in this case. These included:

• Her Honour did not accept the sinister character of the failures attributed by the claimant, and there was no evidence that the respondents profited from its contraventions;
• The respondents have not been found to have previously contravened the Act;
• The circumstances surrounding the respondents’ failures demonstrate some reliance by the Second Respondent on the erroneous advice of others;
• The business remains in a poor, albeit improving, financial state;
• The Second Respondent has expressed contrition and has taken steps to ensure that, as the First Respondent’s business improves and expands, the contraventions will not occur again; and
• The Claimant overstated the impact of the First Respondent’s actions.

Scaddan IM was of the view that the conduct in all circumstances is properly categorised in the low range.

Her Honour found that imposing a penalty of $44,800 on the First Respondent, and $8,800 on the Second Respondent, was appropriate.

The decision can be read here.

The Commission has issued an interim order to stay the relocation of a 3-4 Urban Tanker Firefighting Appliance (Urban Tanker) to Cockburn Career Fire and Rescue Station (Cockburn) and consequential transfer of staff to enable the parties to resolve a dispute concerning the industrial impacts of the relocation of the Urban Tanker through conciliation.

Background

The United Professional Firefighters Union of Western Australia (Union) applied to the Commission to assist in the resolution of a dispute concerning the industrial impacts of the relocation of the Urban Tanker from the Canning Vale Career and Fire Rescue Station to Cockburn.

The construction of Cockburn is anticipated to be completed soon and once commissioned, the Department of Fire and Emergency Services (DFES) wishes to move the Urban Tanker to Cockburn along with at least 12 firefighters to crew the appliance.

Parties’ contentions

The applicant, the Union, contended that the DFES has not engaged in genuine consultation and challenged the merits of the decision to relocate the Urban Tanker. The applicant also challenged the management of associated employment and industrial matters arising from the decision. It submitted that the flawed consultation process can be cured by providing a further period of time for further consultation, conciliation or arbitration.

The respondents, the DFES and the FES Commissioner, submitted that consultation has occurred. The respondents contended that the issues of the merits of the relocation and the process for managing the impacts to the employees have been adequately canvassed. It submitted that an interim order to stay the decision is not required and would be an unwarranted intervention in the functions and responsibilities of the FES Commissioner.

Findings

Commissioner Walkington found that the FES Commissioner had made a definite decision in October 2020 that the Urban Tanker would be relocated to Cockburn and that he would not reconsider this decision. She found that the respondents’ responses to issues raised by the Union thereafter were cursory, dismissive and flawed.

Walkington C also found that documentation of the outcomes of the consultation and of industrial relations considerations were almost non-existent, and those which exist were dismissive of the Union’s concerns. She noted that there was a deterioration of industrial relations between the Union and the respondents.

Walkington C concluded that the consultation process to date has been flawed and the management of industrial issues, including the impact on firefighters, have not been adequately considered. She found that further discussions, conciliation or arbitration would assist in the resolution of the matters in question and prevent the further deterioration of the relationship between the parties.

An interim order has been issued in the terms above. 

The decision can be read here.

The Industrial Magistrate has imposed penalties totalling $2,500 on an employer who was found to have failed to pay his employee annual leave and payment in lieu of notice.

Reasons for decision

By Reasons for decision delivered on 12 February 2021, the employer was found to have contravened the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) by failing to pay his employee annual leave. The employer was also found to have contravened s 117 of the Fair Work Act 2009 (Cth) (FW Act) by failing to pay his employee payment in lieu of notice.

The employer was ordered to pay a total of $10,576.50 to the employee.

The decision can be read here.

Supplementary Reasons for decision

Industrial Magistrate Hawkins noted that the relevant penalty provision for unpaid annual leave under the MCE Act is s 83(4)(a)(ii) of the Industrial Relations Act 1979 (WA) (IR Act), and contraventions in respect to payment in lieu of notice is subject to the FW Act.

The employee submitted that a total of $4,150 in penalties was proportionate to the overall offending and the loss to him. He contended that a mid-way penalty was appropriate in respect to the breach under the IR Act, and in respect to the breach under the FW Act, it was submitted that the type of penalty fell within 25% of the maximum.

The employee argued that the employment was for a relatively long period, the totality of the loss suffered by him was substantial compared to his annual earnings, the employer had not shown remorse or contrition, and no payments had had been made to him yet.

The employer submitted that no penalties should be imposed. He argued that the failure to pay accrued annual leave resulted from a mistaken belief that the employee had been engaged as an independent contractor. He also contended that there was no evidence of refused requests to pay annual leave and there was no need for specific or general deterrence as the employer’s business was small and this was a one-off event.

Hawkins IM noted that several considerations were significant in assessing penalties in this case. These included:

• It was conceded by the employee that the contravention of the MCE Act and FW Act were single contraventions;
• The dispute primarily arose due to the employer’s ignorance of the law. However, ignorance and complacency of the law affords no mitigation;
• Although the behaviour of the employer could be characterised as deliberate, Her Honour was not satisfied that it arose because of a more sinister motive, rather than sheer complacency;
• There was no evidence that the employer exploited or profited from any exploitation;
• Specific deterrence is low as the employer operates a small business with no current employees; and
• The offending is properly characterised as falling in the low range, but the amounts unpaid were not insignificant and thus a caution is not appropriate nor is imposing no penalty appropriate.

Her Honour found that, having regard to principles of totality, imposing penalties in the sum of $2,500 was appropriate. She also awarded a sum of $1,544.69 in interest.

The decision can be read here.

The Commission has dismissed a claim for denied contractual benefits as it found that it had no jurisdiction to hear and determine the matter since the applicant’s salary exceeded the prescribed amount specified in reg 5 of the Industrial Relations (General) Regulations 1997 (WA).

Contentions

The applicant, a tug master, claimed that he had been denied several entitlements including the restoration of 30 days of personal leave and the back payment of two months’ salary and superannuation.

The applicant contended that the relevant period that ought to be considered material for this matter was between 15 April 2019 to 15 April 2020. He claimed that the payment received by him during this period was the total of his base salary, statutory superannuation and additional superannuation contributions.

The respondent, the applicant’s employer, objected to the claim and contended that the Commission lacked jurisdiction to deal with the matter on the basis that the employment contract provided for a salary that exceeded the prescribed amount.

The respondent contended that the material period was the twelve months prior to the date of the applicant’s claim, that being 20 March 2020. It also claimed that the relevant payments that were to be considered included the base salary and the additional superannuation contributions but excluded the statutory superannuation payments.

Findings

Commissioner Walkington found that the prescribed amount for the purposes of determining the applicant’s claim was $166,680.

Walkington C found that the applicant was not correct to include payments received for statutory superannuation. She found that when the formulas in either reg 5(2)(a) or reg 5(2)(b) (with the latter applying where there was not a period of leave without pay) were correctly applied to the period between 15 April 2019 to 15 April 2020, the applicant’s salary exceeded the prescribed amount. This was also the case when the formulas were applied to the material period contended by the respondent, being 21 March 2019 to 20 March 2020.

The claim was dismissed for lack of jurisdiction.

The decision can be read here.