A claim was brought to the Industrial Magistrates Court (IMC) under section 97A of the Industrial Relations Act 1979 (WA) (IR Act). The claimant, a Senior Social Worker employed by East Metropolitan Health Service (respondent), alleged that the respondent had engaged in ‘damaging action’ under section 97A of the IR Act by threatening to alter his employment position because of employment-related complaints he had made. 

The claimant commenced employment with the South Metropolitan Health Service in 2013 as a Senior Social Worker, moving to the managerial position of Team Leader at the East Metropolitan Health Service (EMHS) in 2016. The claimant has subsequently worked in various roles within EHMS, including Team Lead positions. Between 2018 and 2023, the claimant was the subject of complaints made against him and also made a series of employment-related complaints. The claimant’s complaints included allegations of workplace bullying, homophobia, and toxic work environments. 

In 2023, the claimant continued to raise concerns about his experience in the workplace and in response, the respondent planned to create a new substantive role at the same or equivalent classification level that was suited to the claimant's qualifications and experience. The respondent subsequently proposed to transfer the claimant to a new substantive role at an equivalent classification level requiring similar qualifications and functions, but without line management responsibility for staff. The claimant argued that the respondent’s proposed removal of managerial responsibilities threated to alter his position to his disadvantage, and this proposal was made because of the numerous employment-related complaints he had made. The claimant sought orders for compensation and a civil pecuniary penalty. 

The Industrial Magistrate was required to consider two key issues: whether the proposed transfer constituted ‘damaging action’ under section 97 of the IR Act, and if the proposed transfer constituted damaging action, whether there was a causal link between the employment-related complaints and the proposed transfer.  

The Industrial Magistrate determined the evidence overwhelmingly demonstrated that the proposed transfer was not to the claimant’s disadvantage. The new substantive position was created specifically for the claimant to remedy feelings of being undervalued and not belonging at work, and where no suitable permanent vacancies were available. The claimant was not required to apply for the role and was given an opportunity to discuss the details of the position and provide feedback on the proposed transfer before it was implemented. 

In finding that the proposal to transfer the claimant to a new role did not constitute ‘damaging action’, the respondent then did not bear any onus to prove that the transfer was not proposed to the claimant because of the claimant’s series of complaints. However, Her Honour contemplated the reasons for the proposed transfer and determined that, even if the proposal to transfer the claimant did constitute damaging action, the respondent did not propose to transfer the claimant because of the employment-related complaints he made. According, the Industrial Magistrate dismissed the claim. The full decision can be read here.

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A prison officer and member of the Western Australian Prison Officers' Union of Workers was headquartered at Broome Regional Prison. The Department of Justice Prison Officers' Industrial Agreement 2020 applied to the officer. The officer’s employer, the Department of Justice, required him to take his annual leave in accordance with a leave roster. But at the time the officer took leave, he was already on an authorised absence from work because he was incapacitated and in receipt of weekly payments of compensation under the Workers' Compensation and Injury Management Act 1981 (WA).

Clause 85 of the Agreement entitles an officer who is headquartered in the North West, and who proceeds on annual leave to a destination outside that region to "paid travelling time". The Union alleged that the respondent contravened clause 85 of the Agreement by failing to pay the officer an amount in addition to his weekly payments of compensation as paid travel time. The employer denied any contravention of the Agreement.

Industrial Magistrate Cosentino was required to consider the nature of the entitlement in clause 85. In particular, whether the entitlement was to be allowed time off, or whether it was an entitlement to be compensated for travel in an officer’s own time. If it was an entitlement to be allowed time off, then the entitlement did not apply to the officer, who was already entitled to time off from work because of his compensable injury. The Industrial Magistrate identified several provisions of the Agreement’s text which pointed to an objective intention that the entitlement be to be allowed time off without loss of pay, rather than to be compensated for time spent travelling. Accordingly, the Industrial Magistrate rejected the Union’s contention that the officer was entitled to be paid an amount over and above the weekly payments he received for incapacity for the relevant period. There being no proven contravention of the Agreement, the claim was dismissed.

The decision can be read here.

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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.

The decision can be read here.

Mr Paterson, a prison officer with over 11 years of service, faced a dispute with the respondent regarding his application for three days of personal (sick) leave. The dispute arose when the respondent initially rejected both personal (sick) leave and personal (carer's) leave claims, although the latter was later accepted upon review. The applicant, representing Mr Paterson,  alleged a breach of cl 71.1 of the Department of Justice Prison Officers Industrial Agreement 2020, asserting that the respondent, through its superintendent, breached the agreement by refusing to accept Mr Paterson’s evidence, which met the minimum requirements.

The applicant contended that the respondent’s refusal to grant personal (sick) leave breached either the Department of Justice Prison Officers Industrial Agreement 2020 or the Minimum Conditions of Employment Act 1993 (WA). The respondent denied any contravention, arguing that the MCE Act did not apply to prison officers’ personal leave and that the superintendent’s discretion was exercised correctly.

Industrial Magistrate Kucera concluded that Mr Paterson's request for personal (sick) leave was reasonable and legitimate, and the department's refusal constituted a breach of cl 71.1 of the Agreement. Industrial Magistrate Kucera found that the respondent breached cl 71.1 of the Agreement when it refused to accept Mr Paterson’s request to take personal (sick) leave for three shifts. Industrial Magistrate Kucera made an order under s 83(1) of the IR Act requiring the respondent pay Mr Paterson three days of personal leave for the three dates specified dates.

The decision can be read here.

Local government employers transferred to the state industrial relations system

Changes to state employment laws in WA - New employee protections provisions