Citation : [2013] WAIRC 01012; (2013) 93 WAIG 1865 File No. : PSAB 12 of 2013 CatchWords : Industrial Law (WA) - Appeal sought to be instituted against decision of Public Service Appeal Board - No jurisdiction of Full Bench to hear appeals from Public Service Appeal Board - Appeal dismissed. 342 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Legislation : Industrial Relations Act 1979 (WA) s 49, s 49(1), s 49(2) Result : Appeal dismissed Representation: Appellant : In person Respondent : Mr D Anderson (of counsel) and Ms V Tomlin Solicitors: Respondent : State Solicitor for Western Australia Case(s) referred to in reasons: Hill v Commissioner, Corrective Services, Dept. of Corrective Services [2009] WAIRC 00166; (2009) 89 WAIG 417 State Government Insurance Commission v Johnson (1996) 76 WAIG 4142 Reasons for Decision FULL BENCH: 1 By a notice of appeal filed on 9 December 2013, Henryk Turlinski seeks to appeal against a decision of the Public Service Appeal Board (the PSAB) made on 29 November 2013. 2 After the filing of the notice of appeal, the appeal was not progressed in the ordinary way by the filing of appeal books. A question arose as to whether Mr Turlinski could appeal against the decision of the PSAB. That is, whether the Full Bench has jurisdiction to hear such an appeal. 3 On 11 December 2013, the records of the Commission record that: (a) Mr Turlinski attended the registry of the Commission and copies of decisions made by the Full Bench in State Government Insurance Commission v Johnson (1996) 76 WAIG 4142 and Hill v Commissioner, Corrective Services, Dept of Corrective Services [2009] WAIRC 00166; (2009) 89 WAIG 417 were provided to Mr Turlinski; (b) an officer of the registry suggested to Mr Turlinski that he read the decisions and seek some independent advice so that he could make an informed decision about whether or not to proceed with the appeal. 4 On 17 December 2013, Mr Turlinski advised the Commission that he wished to proceed with the appeal. 5 On 5 March 2014, the appeal was listed for hearing for mention to show cause why the appeal should not be struck out on grounds of no jurisdiction. The matter was listed for mention before the Full Bench for this purpose on 21 March 2014. 6 At the hearing on 21 March 2014, after hearing from Mr Turlinski, the Full Bench informed Mr Turlinski that an order would be made to dismiss his appeal. 7 The reason why the Full Bench formed this opinion is because the decisions in Johnson and Hill make it clear that no appeal lies to the Full Bench against a decision of the PSAB under s 49 of the Industrial Relations Act 1979 (WA) (the Act). Pursuant to s 49(2) of the Act, an appeal only lies to the Full Bench in the manner prescribed from any decision of the Commission. The Commission is defined in s 49(1) of the Act to mean the Commission constituted by a Commissioner. The decisions in Johnson and Hill make it plain that a decision of the PSAB is not a decision of 'the Commission constituted by a Commissioner' within the meaning of s 49(1) of the Act. 8 For this reason, the appeal does not lie and an order will be made to dismiss the appeal. 2014 WAIRC 00264 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES HENRYK TURLINSKI APPELLANT -and- NORMAN BAKER, MANAGING DIRECTOR, PILBARA INSTITUTE RESPONDENT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT COMMISSIONER J L HARRISON COMMISSIONER S M MAYMAN DATE WEDNESDAY, 2 APRIL 2014 FILE NO. FBA 20 OF 2013 CITATION NO. 2014 WAIRC 00264 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 343 Result Appeal dismissed Appearances Appellant In person Respondent Mr D Anderson (of counsel) and Ms V Tomlin Order This appeal having come on for hearing before the Full Bench on 21 March 2014, and having heard Mr H Turlinski on his own behalf as appellant, and Mr D Anderson (of counsel) and Ms V Tomlin on behalf of the respondent, and reasons for decision having been delivered on 2 April 2014, the Full Bench, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders — THAT the appeal be and is hereby dismissed. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. FULL BENCH—Appeals against decision of Industrial Magistrate— 2014 WAIRC 00271 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES VINCENZO SALVATORE TODARO APPELLANT -and- FAIR WORK OMBUDSMAN RESPONDENT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH ACTING SENIOR COMMISSIONER P E SCOTT DATE THURSDAY, 3 APRIL 2014 FILE NO. FBA 16 OF 2013 CITATION NO. 2014 WAIRC 00271 Result Appeal dismissed Appearances Appellant No appearance Respondent Ms K Thomson (of counsel) by teleconference Order WHEREAS on 7 October 2013, the appellant's solicitors filed a Notice of appeal seeking to appeal part of the reasons for decision of the Industrial Magistrate's Court given on 16 September 2013 in matter M 43 of 2011; AND WHEREAS matter M 43 of 2011 was an application made by the respondent pursuant to s 719 of the Workplace Relations Act 1996 (Cth); AND WHEREAS the records of the Commission record that on 20 December 2013, the appellant's solicitor informed the Associate to the President, Ms Kathryn Edwards, that the appellant wishes to discontinue the appeal; AND WHEREAS on 28 January 2014, the Registry received an application made pursuant to reg 61(1) of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (WA) in which an order was sought that the appellant have leave to discontinue the appeal; AND WHEREAS the records of the Commission record: (a) the application received on 28 January 2014 was not accepted for filing by the Registrar; and (b) on 28 January 2014, an officer of the Registry, Ms Maria Louca, requested the appellant's solicitor to file the correct form to discontinue the appeal (Form 1); AND WHEREAS by 5 March 2014 no further correspondence had been received by the Commission and no application in the form of Form 1 had been filed on behalf of the appellant; 344 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. AND WHEREAS on 5 March 2014 the Full Bench listed the appeal on its own motion for the appellant to show cause on 2 April 2014 why the appeal should not be struck out; AND WHEREAS on 2 April 2014 there was no appearance on behalf of the appellant before the Full Bench when the matter was called on; NOW THEREFORE, the Full Bench, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders — THAT the appeal be and is hereby dismissed. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. FULL BENCH—Unions—Declarations made under Section 71— 2014 WAIRC 00238 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH APPLICANT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH COMMISSIONER S J KENNER DATE TUESDAY, 25 MARCH 2014 FILE NOS FBM 6 OF 2013, FBM 7 OF 2013 CITATION NO. 2014 WAIRC 00238 Result Matters adjourned sine die Appearances Applicant Mr P Laskaris (of counsel) Order These matters having come on for hearing before the Full Bench on 25 March 2014, and having heard Mr P Laskaris (of counsel) on behalf of the applicant, the Full Bench, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders — THAT FBM 6 of 2013 and FBM 7 of 2013 be adjourned sine die. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. AWARDS/AGREEMENTS AND ORDERS—Variation of— 2014 WAIRC 00179 PUBLIC TRANSPORT AUTHORITY RAIL CAR DRIVERS (TRANSPERTH TRAIN OPERATIONS) AWARD 2006 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH APPLICANT -v- PUBLIC TRANSPORT AUTHORITY RESPONDENT CORAM COMMISSIONER S J KENNER DATE MONDAY, 10 MARCH 2014 FILE NO/S APPL 3 OF 2014 CITATION NO. 2014 WAIRC 00179 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 345 Result Award varied Representation Applicant Mr R Raven and with him Mr P Robinson Respondent Ms J Allen-Rana Order HAVING heard Mr R Raven and with him Mr P Robinson on behalf of the applicant and Ms J Allen-Rana on behalf of the respondent and by consent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the Public Transport Authority Rail Car Drivers (Transperth Train Operations) Award 2006 be varied in accordance with the following schedule and that such variation shall have effect on or from 29 January 2014. (Sgd.) S J KENNER, [L.S.] Commissioner. SCHEDULE 1. Clause 3.3. - Meal and Rest Breaks: Delete paragraph (b) of subclause 3.3.2 of this clause and insert the following in lieu thereof: (b) The employer shall provide such employee a meal allowance of $12.20 to cover the cost associated with the purchase of foods associated with the taking of a second crib. The above rate will be adjusted in accordance with the official movements in the Consumer Price Index (CPI) - Food (Perth) as measured for the preceding 12 months at the end of the March quarter by the Australian Bureau of Statistics. 2. Clause 4.3. - Suburban Electric Railcar Allowance: Delete paragraph (a) of subclause 4.3.1 of this clause and insert the following in lieu thereof: 4.3.1 (a) An employee qualified in the operation of electric suburban railcars and who, for any shift or part of a shift is rostered to work as driver on the suburban rail system shall, for the whole of that shift, be paid the following allowance in addition to the appropriate rate of pay. Rate per week (1) First Year $38.20 (2) Thereafter $38.50 (3) Special Case $39.10 3. Clause 5.1 – Shift Work: Delete subclause 5.1.1 of this clause and insert the following in lieu thereof: 5.1.1 The employer may, if the employer so desires, work any part of its business on shifts in accordance with the following provisions; (a) On an afternoon shift which commences before 1800 hours and the ordinary time of which concludes at or after 1830 hrs, an employee will be paid an allowance of $2.58 an hour on all time paid at ordinary rate. (b) On a night shift, which commences at or between 1800, and 0359 hours, an employee will be paid an allowance of $3.00 an hour on all time paid at ordinary rate. (c) On an early morning shift, which commences at or, between 0400 and 0530, an employee will be paid an allowance of $2.58 an hour on all time paid at ordinary rate. (d) In addition to the hourly shift work allowance, an employee will be paid an allowance of $3.00 for any shift where the ordinary time commences or finishes at or between 0101 hours and 0359 hours. (e) In calculating the allowance under this clause, broken parts of an hour less than thirty minutes on any shift shall be disregarded and thirty minutes to fifty-nine minutes paid as one hour. (f) The above rates will be adjusted by a percentage derived from the State Wage General Order as amended or superseded, applied to the key classification rate of REA4 of the Railway Employees Award No 18 of 1969, using the procedure stated in ROUNDING OF ALLOWANCES (87 WAIG 1502). 4. Clause 5.2. - Temporary Transfer Allowance: Delete subclause 5.2.1 of this clause and insert the following in lieu thereof: (a) When the distance the employee is required to travel from the employee's usual place of residence to the depot where the employee is temporarily working is greater than the distance the employee is required to travel from his usual place of residence to the employee's home depot, the employee shall be paid an allowance of $1.66 per kilometre in both directions for the extra distance the employee is required to travel. Such allowance as specified in this paragraph is in recognition of the cost and time taken for the extra distance to be travelled. The rate referred to above will be adjusted from time to time in accordance with the Department of Transport Taxi Industry Board (as renamed or superseded) metropolitan weekday daytime taxi fare distance rate per km. (b) When the period of relief is for one week or less the allowance of $6.95 per shift shall be paid in recognition of the disruption to the employee’s normal roster. 346 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. The above rate will be adjusted by a percentage derived from the State Wage General Order as amended or superseded, applied to the key classification rate of REA4 of the Railway Employees Award No 18 of 1969, using the procedure stated in ROUNDING OF ALLOWANCES (87 WAIG 1502). 5. Clause 5.3. - On Call Allowance: Delete subclause 5.3.1 of this clause and insert the following in lieu thereof: 5.3.1 Employees on call outside the ordinary hours of duty will be paid an allowance of $3.84 per hour for all time on call. The above rate will be adjusted by a percentage derived from the State Wage General Order as amended or superseded, applied to the key classification rate of REA4 of the Railway Employees Award No 18 of 1969, using the procedure stated in ROUNDING OF ALLOWANCES (87 WAIG 1502). 2014 WAIRC 00180 PUBLIC TRANSPORT AUTHORITY (TRANSWA) AWARD 2006 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH APPLICANT -v- PUBLIC TRANSPORT AUTHORITY RESPONDENT CORAM COMMISSIONER S J KENNER DATE MONDAY, 10 MARCH 2014 FILE NO/S APPL 4 OF 2014 CITATION NO. 2014 WAIRC 00180 Result Award varied Representation Applicant Mr R Raven and with him Mr P Robinson Respondent Ms J Allen-Rana Order HAVING heard Mr R Raven and with him Mr P Robinson on behalf of the applicant and Ms J Allen-Rana on behalf of the respondent and by consent the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the Public Transport Authority (Transwa) Award 2006 be varied in accordance with the following schedule and that such variation shall have effect on or from 29 January 2014. (Sgd.) S J KENNER, [L.S.] Commissioner. SCHEDULE 1. Clause 5.1 - Shift Work: Delete this clause and insert the following in lieu thereof: 5.1 - SHIFT WORK 5.1.1 On an afternoon shift which commences before 1800 hours and the ordinary time of which concludes at or after 1830 hrs, an employee will be paid an allowance of $2.52 an hour on all time paid at ordinary rate. 5.1.2 On a night shift, which commences at or between 1800 and 0359 hours, an employee will be paid an allowance of $2.90 an hour on all time paid at ordinary rate. 5.1.3 On an early morning shift, which commences at or between 0400 and 0530, an employee will be paid an allowance of $2.52 an hour on all time paid at ordinary rate. 5.1.4 In addition to the hourly shift work allowance, an employee will be paid an allowance of $2.90 for any shift where the ordinary time commences or finishes at or between 0101 hours and 0359 hours. 5.1.5 In calculating the allowance under this clause, broken parts of an hour less than thirty minutes on any shift shall be disregarded and thirty minutes to fifty-nine minutes paid as one hour. 5.1.6 The above rates will be adjusted by a percentage derived from the State Wage General Order as amended or superseded, applied to the key classification rate of REA4 of the Railway Employees Award No 18 of 1969, using the procedure stated in ROUNDING OF ALLOWANCES (87 WAIG 1502). 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 347 2. Clause 5.2 - Temporary Transfer Allowance: Delete paragraphs (a) and (b) of subclause 5.2.1 of this clause and insert the following in lieu thereof: 5.2.1 When an employee in the metropolitan area is required to work at another metropolitan depot other than the depot at which the employee is stationed the following shall apply: (a) When the distance the employee is required to travel from the employee’s usual place of residence to the depot where the employee is temporarily working is greater than the distance the employee is required to travel from his usual place of residence to the employee’s home depot, the employee shall be paid an allowance of $1.66 per kilometre in both directions for the extra distance the employee is required to travel. Such allowance as specified in this paragraph is in recognition of the cost and time taken for the extra distance to be travelled, and in addition: (b) When the period of relief is for one week or less the allowance of $6.95 per shift shall be paid in recognition of the disruption to the employee’s normal roster. 3. Clause 5.3 – On Call Allowance: Delete subclause 5.3.1 of this clause and insert the following in lieu thereof: 5.3.1 Employees directed by the employer to be on call outside the ordinary hours of duty will be paid an allowance of $4.17 per hour for all time on call. That rate will be adjusted by a percentage derived from the State Wage General Order as amended or superseded, applied to the key classification rate of REA4 of the Railway Employees Award No 18 of 1969, using the procedure stated in ROUNDING OF ALLOWANCES (87 WAIG 1502). 4. Clause 5.5 - Away From Home And Meal Allowances: Delete subclause 5.5.2 of this clause and insert the following in lieu thereof: 5.5.2 Railcar Drivers, Coordinator and Road Coach Operators will be paid an allowance to reimburse the costs of meals and incidentals when on roster and required to stay overnight away from home. This allowance will be calculated on the time between booking on and booking off from the home depot at the rate of $27.55 for each 8 hour period and, where less than 8 hours is worked, at the rate of $6.85 for each 2 hour period or part thereof worked. INDUSTRIAL MAGISTRATE—Claims before— 2014 WAIRC 00210 WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT