CITATION : 2013 WAIRC 00428 CORAM : ACTING SENIOR COMMISSIONER P E SCOTT HEARD : MONDAY, 1 JULY 2013 DELIVERED : TUESDAY, 16 JULY 2013 FILE NO. : U 245 OF 2012 BETWEEN : OLIVIA PERKINS Applicant AND MRS KATHLEEN CRUSE AND MR BARRY CRUSE Respondents CatchWords : Application for witness summons – Application to summons counsel to produce documents – Legal professional privilege – Implied waiver of privilege – Disclosure of legal advice in witness statements – Waiver not limited to documents in evidence before the court Legislation : Industrial Relations Act 1979 (WA) Hairdressers Award 1989 Result : Direction issued Representation: Applicant : Mr N Marouchak of counsel Respondent : Mr T Petherick of counsel Reasons for Decision 1 The applicant claims that she was harshly, oppressively or unfairly dismissed from her employment as a hairdresser by the respondents on the 20 November 2012. In preparation for the hearing of the matter, the parties filed witness statements. 1344 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. 2 The matter was listed for hearing to commence on 1 July 2013. 3 Late on 30 June 2013 the applicant filed an application that the hearing be adjourned and that a witness summons filed with that application, requiring the respondents’ counsel, Mr Trent Petherick, to produce books, papers or other documents, be granted on the grounds that: 1. The Respondents waived legal professional privilege by disclosing the contents of legal advice in their witness statements filed on 19 June 2013, specifically, in respect to Ms Cruse’s statement at paragraphs 22, 23, 24 and 54, and in respect to Mr Cruse’s statement at paragraphs 9 and 10. 2. Legal submissions supporting the above are attached and marked “A”. 4 The summons to witness was addressed to Trent Petherick. It sought that he appear before the Commission to produce all books, papers, or other documents in his possession or under his control in any way relating to the proceedings and in particular but not exclusively: All legal advice given to, and communication with, Kathleen Cruse And Barry Cruse regarding: 1. the potential redundancy of employees at Kathleen Cruse And Barry Cruse’s hair salon business the subject of these proceedings; and 2. the potential restructure of staff at Kathleen Cruse And Barry Cruse’s said hair salon business; and 3. the potential redundancy of Ms Olivia Perkins employment at the said hair salon by Kathleen Cruse and Barry Cruse. 5 The applicant subsequently amended the period of the production sought to include from 13 November 2012 to 26 November 2012. 6 The Commission heard the application at the commencement of the hearing on 1 July 2013. The respondents were given the opportunity to provide submissions, in writing, on the basis of having had very short notice of the application. The respondents filed submissions on Tuesday 2 July 2013 and the applicant filed a response on Wednesday 3 July 2013. 7 Following this, becoming concerned at the potential for the matter to become increasingly complex and costly, the Commission convened a further conference for the purpose of attempting to resolve the matter by conciliation, on Monday 8 July 2013 at 2.30pm. As a consequence of that conference, the matter was held in abeyance for seven days to enable the parties to further consider their positions. The Commission was advised on Monday 15 July 2013 that the matter was not resolved following the conciliation conference and that the issue of the application to summons counsel for the respondents, required determination. 8 The issue for determination is whether Ms Cruse’s witness statement constitutes a waiver of legal professional privilege in respect of advice given by Mr Petherick, the respondents’ counsel, and whether, as a consequence, Mr Petherick ought to be required to produce documents relating to legal advice given to Ms Cruse. The contents of the witness statement 9 In the witness statement of Kathleen Cruse filed on 19 June 2013, Ms Cruse says at paragraphs 22, 23, 24 and 54, as follows: 22. On the 13th November 2012, I met with our Lawyers, Trent Petherick, in Mandurah, to discuss restructuring, proposals for restructuring, and the correct procedure to be adopted when implementing same. The main problems with the business we were an over staffed [sic] whereby the financial performance of the business was not reflected by the number of staff. In particular, now that Rachael Matthews was a senior hair stylist, we were overstaffed with senior stylists. Moreover, I wish to become more involved in the business and work additional hours (expand) [sic]. 23. There was an obvious difficulty with permanent staff that caused lack of flexibility. Our work flow was not constant throughout the day and often permanent staff would have considerable periods where they were unproductive and had nothing to do. Trent Petherick suggested exploring the options of disestablishing a permanent position and creating a casual position that would assist in alleviating this issue. 24. Trent Petherick carefully explained the consultative requirements in digesting a restructuring proposal to staff and that any decision could not be made until a consultation had fully occurred. He also carefully explained that the consultation must be genuine and meaning-full and this was not only a legal requirement but also important for staff morale. I fully appreciated the legal position and confirmed that I required his assistance every step of the way to ensure that the process was handled fairly. … 54. However, I had an open mind on the position. I wanted to hear Olivia’s views as there may have been a better way of restructuring. Furthermore, anything that Olivia stated to me would have needed to be discussed with my husband before making a final decision. We would have also sought the advice of our lawyer to ensure that any resulting termination of Olivia’s position at that time was lawful. 10 A witness statement filed by Barry Hillier Cruse on the 19 June 2013 contained the following paragraphs: 9. On 13 November 2012, Kay met with an Employment Lawyer to discuss restructuring. Essentially, the outcome of that advice was to look at proposals for restructuring including addressing the issue of being over staffed with senior stylists. This included considering the option of disestablishing one permanent position and creating a casual position that would have the advantage of providing more flexible utilisation of staff resources. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1345 10. We were well aware of our consultative requirements in considering a restructure proposal. We were also aware of our obligations to be completely fair to staff. Furthermore, we always ensure that we adhere to our legal obligations. 11 The applicant says that the respondents have waived legal professional privilege impliedly on the basis that they have disclosed not merely the fact that they have obtained legal advice, but in disclosing the legal advice received, or least some of it. The applicant refers to authorities to support her claim that the respondents have disclosed privileged communications in order to advance their position, constituting a waiver of privilege and that it is unfair to prevent disclosure of the balance of the communications. 12 The respondents say firstly, that a witness statement maintains privilege. The witness statements in this case have not been tendered under oath in open court and have not been received into evidence. Further, they do not intend to lead in evidence the statements made in the paragraphs referred to in Ms Cruse’s witness statement. 13 The respondents say if there has been an implied waiver, it is limited to the communications on 13 November 2012. 14 They also say that there are compelling reasons why the Commission should not allow the summons. These include: a. The extent of the evidence is limited to general information provided at initial consultation and to require counsel for the respondents to discontinue and become a witness in the case would not be expedient; b. The application is an abuse of process and motivated to increase costs and difficulties with the respondents’ preparation of their case; c. The general information provided to the respondents at the consultation on 13 November 2012, was not advice, but legal information available in the public domain. Ms Cruse obtained the same information from Wageline. Therefore, the alleged waiver is minimal and relates to the effect of the information; d. Counsel for the respondents has no independent recollection of the initial consultation some nine months ago; e. There can be no meaningful benefit in allowing the application. Even if paragraphs 23 and 24 were led into the evidence there would be no inconsistency between counsel’s limited recall and that of Ms Cruse. 15 The respondents say that it is not their intention to adduce into evidence paragraphs 23 and 24 of Ms Cruse’s witness statement and, therefore, there can be no allegation of inconsistency between reference to the material and maintenance of the privilege. 16 The respondents also say that although the authorities referred to by the applicant indicate that a statement of a potential witness is protected by legal professional privilege, they also note that ‘[i]t is controversial whether the delivery of a copy of the statement to other parties pursuant to rules of court where the delivery is a precondition to the right to call that witness waives the privilege, at least for the purpose of that proceeding’. They say that one view is that the privilege is waived because the disclosure is considered voluntary and because it ‘is not possible to assert a right to refuse to disclose in respect of a document which has already been disclosed’. That view has been applied to finalised proofs of evidence and affidavits which have been served. However, they say there is a substantial line of contrary authority. The respondents say that by not adducing those paragraphs into evidence, the inconsistency between the material and the maintenance of privilege is averted. 17 The respondents also say, in respect of the extent of the waiver, that in one case the court required only the disclosure of the substance of the advice and not its detail. 18 The respondents also say that paragraphs 23 and 24 of Ms Cruse’s statement are limited to the effect of the advice and not its detail, and therefore privilege is not waived. 19 The respondents also rely on issues of fairness as noted above, criticising the lateness of the application; the inconvenience and cost to the respondents should their counsel become a witness in the matter and need to be replaced as their counsel; is an abuse of process and the alleged waiver is minimal and relates to the effect of information rather than legal advice. Legal Professional Privilege 20 The principle of legal professional privilege is set out in Australian Civil Procedure (8th ed) at [10.430]: ‘In Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 77 ALJR 40 at 42-43 Gleeson CJ, Gaudron, Gummow and Hayne JJ declared that legal professional privilege is a principle of substantive law that may be invoked to prevent disclosure of communications between a client and a lawyer for the dominant purpose of giving or obtaining legal advice or providing legal services. Legal professional privilege is intended to preserve confidentiality between legal adviser and client. As such, the privilege protects from disclosure communications between a client and a legal adviser for the purpose of obtaining confidential legal advice. It also protects from disclosure documents prepared for use in existing or anticipated litigation. The same applies to answering an interrogatory directed to privileged information. The policy underlying legal professional privilege is that frank and complete disclosure between a legal adviser and a client is necessary for the proper conduct of litigation. On a broader basis, confidentiality between the legal profession and its clients is necessary because of the nature of the legal system. Generally, it is in the public interest for legal transactions to be conducted through legal practitioners. It is said that a client must be able to approach a legal practitioner with the certainty that the practitioner cannot be compelled to disclose confidential communications.’ 21 At common law, anyone who has the benefit of legal professional privilege may waive it (Mann v Carnell (1999) 201 CLR 1) either expressly, by not claiming it or by implication. 1346 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. 22 The court may require the disclosure of privileged material where there has been partial disclosure, in the interests of fairness: ‘There is likely to be unfairness where the undisclosed material throws a different light on the meaning of what is disclosed. Short of unfairness though, inadvertent disclosure does not dislodge privilege: Hongkong Bank of Australia Ltd v Murphy [1993] 2 VR 419 at 441… [l]egal professional privilege is waived if the client puts in issue the content of legal advice (Hongkong Bank of Australia Ltd v Murphy op cit at 434-438) … [t]here is no general waiver of legal professional privilege if otherwise privileged information is disclosed for a specific and limited purpose. Disclosure of this nature effects a waiver only for the specific purposes of the disclosure’. Australian Civil Procedure (8th ed) [10.470]. 23 An examination of paragraphs 22, 23 and 24 in particular of Ms Cruse’s statement indicates that on 13 November 2012, she met with her lawyer in Mandurah to discuss restructuring the staffing arrangements of the business and the correct procedure to be adopted. She noted that ‘Trent Petherick suggested exploring the options of disestablishing a permanent position and creating a casual position that would assist in alleviating this issue’ [23]. 24 Mr Petherick is also said to have: ‘carefully explained the consultative requirements in digesting a restructuring proposal to staff and that any decision could not be made until a consultation had fully occurred. He also carefully explained that the consultation must be genuine and meaning-full and that it was not only a legal requirement but also important for staff morale. I fully appreciated the legal position and confirmed that I required his assistance every step of the way to ensure that the process was handled fairly’ [24]. 25 It is clear from these paragraphs that Ms Cruse consulted Mr Petherick for the purpose of obtaining legal advice and perhaps also general counsel as to two things: 1. The legal requirements for consultation with staff as part of a restructuring arrangement; and 2. Managing the process fairly. Was there legal advice or general information? 26 Whilst the respondents say that the information provided was available from other sources such as Wageline, I note that the information apparently provided arises from legislative instruments such as the Industrial Relations Act 1979 (WA) relating to questions of unfair dismissal; possibly the Hairdressers Award 1989 which sets out requirements for terminating a contract of employment, and finally the General Order of the Commission dealing with termination, change and redundancy (2005 WAIRC 01715), which sets out the requirements for the introduction of change, the employer’s duty to notify, consult and provide notice. Ms Cruse’s statement also indicates that Mr Petherick gave her legal advice about handling the processes arising from the legal requirements to consult and give notice. In this context, I find that whilst it is said that the purpose of the consultation with Mr Petherick was to receive general business advice, what she also received and intended to receive constituted legal advice. Is the witness statement capable of providing a waiver? 27 Although the witness statement has not yet been received into evidence, it has been filed in the Commission and served on another party, being the applicant. 28 Steytler J dealt with whether there can be implied waiver of privilege only at trial and not before, in Hoad v Nationwide News Pty Ltd and others [(1998) 19 WAR 468]. His Honour examined the authorities and found that there can be implied waiver in circumstances where the documents in question have not yet been used in court (p 475). He did so, relying on Attorney- General (NT) v Maurice (1986) 161 CLR 475 (per Gibbs CJ at 482-483 and Dawson J at 498). In that case, the High Court examined the judgment of Hobhouse J in General Accident Fire & Life Assurance Company Ltd v Tanter ([1984] 1 WLR 100) which was said to have limited the implied waiver to the trial. However, Gibbs CJ, in particular, in Maurice found that Hobhouse J was examining the situation of fairness in respect of the conduct of the trial only and had not determined the issue of whether it limited waiver to the trial only. 29 Therefore, I find that even though the paragraphs in Ms Cruse’s statement which are said to waive privilege have not yet been received into evidence, they nonetheless can be relied upon to amount to a waiver of privilege and in fact do so waive. 30 As to the issues of fairness, it seems that the purpose of the disclosure within the witness statement was to provide some support to the respondents’ case that the applicant was not dismissed by the respondents but that the respondents were in the process of undertaking consultation with employees, in particular with the applicant, in accordance with the requirements of the General Order, that the intention was to restructure the staffing complement, and that the timing of the consultation with Mr Petherick is significant in the sequence of events. 31 Mr Petherick says that the consultation, referred to in those paragraphs, which occurred on the 13 November 2012 ‘was an initial $50 consultation’. He says that inspection of the file reveals a client instruction sheet was completed by Ms Cruse and there are some handwritten notes on the back of the instruction sheet taken by counsel. These notes relate to the nature of the advice only. There is no letter of advice following the initial consultation on 13 November 2012. 32 I note that the summons is for Mr Petherick to appear before the Commission to ‘produce all books, papers, or other documents in [his] possession or under [his] control in any way relating to the proceedings…’ That part of the summons which might otherwise require Mr Petherick to appear and give evidence has been struck through. Therefore, I conclude that the applicant does not seek to examine Mr Petherick on the matters the subject of the waiver including the documents sought to be produced. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1347 Conclusion 33 Ms Cruse’s witness statement has at least partially waived legal professional privilege by referring not only to the fact of having sought and obtained legal advice, but also disclosing, albeit in general terms, the nature of the advice. The fact of the consultation, its timing, its subject matter and the advice in that consultation are important matters in the circumstances of this case. There is no other reference to matters of legal professional privilege which appear to have been waived by the statement. I find that requiring the respondents to produce any documents after 13 November 2012 is not justified by the waiver. 34 Therefore, I find that it is fair to require Mr Petherick to answer the summons by producing to the Registrar the instruction sheet completed by Ms Cruse and the handwritten notes on the back of the instruction sheet taken by counsel at the consultation on 13 November 2012, and will issue a direction accordingly. 2013 WAIRC 00427 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES OLIVIA PERKINS APPLICANT -v- MRS KATHLEEN CRUSE AND MR BARRY CRUSE RESPONDENTS CORAM ACTING SENIOR COMMISSIONER P E SCOTT DATE TUESDAY, 16 JULY 2013 FILE NO. U 245 OF 2012 CITATION NO. 2013 WAIRC 00427 Result Direction issued Representation Applicant Mr N Marouchak of counsel Respondent Mr T Petherick of counsel Direction HAVING heard from Mr N Marouchak of counsel for the applicant and Mr T Petherick of counsel for the respondents, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby directs: 1. THAT Mr T Petherick produce to the Registrar of the Western Australia Industrial Relations Commission the client instruction sheet completed by Ms Kathleen Cruse and containing on the back, hand written notes made by Mr Petherick in respect of Ms Cruse’s consultation with Mr Petherick on 13 November 2012. 2. THAT such document to be produced by 4.30 pm on Tuesday 23 July 2013. (Sgd.) P E SCOTT, [L.S.] Acting Senior Commissioner. INDUSTRIAL AGREEMENTS—Notation of— Agreement Name/Number Date of Registration Parties Commissioner Result Shire of Harvey Leschenault Leisure Centre Enterprise Agreement 2013 AG 8/2013 16/07/2013 Western Australian Municipal, Administrative, Clerical and Services Union of Employees Shire of Harvey Commissioner J L Harrison Agreement registered 1348 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. PUBLIC SERVICE APPEAL BOARD— 2013 WAIRC 00426 APPEAL AGAINST THE DECISION TO TERMINATE THE EMPLOYMENT ON 17 DECEMBER 2012 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES GARRY MILNE CAMPBELL APPELLANT -v- DEPARTMENT OF CORRECTIVE SERVICES RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT - CHAIRMAN MS R OWEN - BOARD MEMBER MS B CONWAY - BOARD MEMBER DATE TUESDAY, 16 JULY 2013 FILE NO PSAB 2 OF 2013 CITATION NO. 2013 WAIRC 00426 Result Appeal dismissed Representation Appellant Ms J Kiely of counsel Respondent Ms N Sager and Ms T Borwick Order WHEREAS this is an appeal to the Public Service Appeal Board (the Board) pursuant to Section 80I of the Industrial Relations Act 1979; and WHEREAS a Directions hearing was convened on the 15th day of March 2013; and WHEREAS the parties entered into discussions prior to the appeal being listed for hearing; and WHEREAS on the 12th day of June 2013 the appellant filed a Notice of Discontinuance in respect of the appeal; NOW THEREFORE, the Public Service Appeal Board, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this appeal be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] On behalf of the Public Service Appeal Board. 2013 WAIRC 00246 APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 21 JANUARY 2013 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RONALD CROSS APPLICANT -v- COMMISSIONER FOR CORRECTIONS, DEPARTMENT OF CORRECTIVE SERVICES RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER S J KENNER - CHAIRMAN MR G RICHARDS - BOARD MEMBER MR M HAMMOND - BOARD MEMBER DATE FRIDAY, 19 APRIL 2013 FILE NO. PSAB 4 OF 2013 CITATION NO. 2013 WAIRC 00246 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1349 Result Direction issued Representation Applicant Mr M Shipman Respondent Ms K Jack and with her Mr D Akerman Direction HAVING heard Mr M Shipman on behalf of the applicant and Ms K Jack and with her Mr D Akerman on behalf of the respondent the Appeal Board, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby directs – (1) THAT the appellant file and serve upon the respondent any witness statements upon which he intends to rely no later than 14 days before the date of hearing. (2) THAT the respondent file and serve upon the applicant any witness statements upon which it intends to rely no later than seven days before the date of hearing. (3) THAT the parties file and serve on one another a written outline of submissions no later than three days prior to the date of hearing. (4) THAT the appeal be listed for hearing for two days on dates to be fixed. (5) THAT the parties have liberty to apply on short notice. (Sgd.) S J KENNER, Commissioner. [L.S.] On behalf of the Public Service Appeal Board. 2013 WAIRC 00365 APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 21 JANUARY 2013 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RONALD CROSS APPELLANT -v- COMMISSIONER FOR CORRECTIONS, DEPARTMENT OF CORRECTIVE SERVICES RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER S J KENNER - CHAIRMAN MR G RICHARDS - BOARD MEMBER MR M HAMMOND - BOARD MEMBER DATE MONDAY, 17 JUNE 2013 FILE NO PSAB 4 OF 2013 CITATION NO. 2013 WAIRC 00365 Result Direction issued Representation Appellant In person Respondent Ms T Borwick Direction The Appeal Board, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby directs – THAT the direction of Friday 19 April 2013 be and is hereby revoked. (Sgd.) S J KENNER, Commissioner. [L.S.] On behalf of the Public Service Appeal Board. 1350 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. 2013 WAIRC 00422 APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 21 JANUARY 2013 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES RONALD CROSS APPELLANT -v- COMMISSIONER FOR CORRECTIONS, DEPARTMENT OF CORRECTIVE SERVICES RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER S J KENNER - CHAIRMAN MR G RICHARDS - BOARD MEMBER MR M HAMMOND - BOARD MEMBER DATE THURSDAY, 11 JULY 2013 FILE NO PSAB 4 OF 2013 CITATION NO. 2013 WAIRC 00422 Result Appeal discontinued Representation Appellant In person Respondent Ms T Borwick Order WHEREAS the appellant sought and was granted leave to discontinue the appeal, the Appeal Board, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the appeal be and is hereby discontinued by leave. (Sgd.) S J KENNER, Commissioner. [L.S.] On behalf of the Public Service Appeal Board. 2013 WAIRC 00281 APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 16 JANUARY 2013 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ANTHONY LAWRENCE APPELLANT -v- COMMISSIONER FOR CORRECTIONS, DEPARTMENT OF CORRECTIVE SERVICES RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER S J KENNER - CHAIRMAN MS B CONWAY - BOARD MEMBER MS C THOMPSON - BOARD MEMBER DATE TUESDAY, 14 MAY 2013 FILE NO. PSAB 5 OF 2013 CITATION NO. 2013 WAIRC 00281 Result Directions issued Representation Applicant Ms L Kennewell Respondent Ms N Sagar and Mr D Hughes 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1351 Direction HAVING heard Ms L Kennewell on behalf of the applicant and Ms N Sagar and with her Mr D Hughes on behalf of the respondent the Appeal Board, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby directs – (1) THAT the appellant file and serve upon the respondent any witness statements upon which he intends to rely no later than 21 days before the date of hearing. (2) THAT the respondent file and serve upon the appellant any witness statements upon which it intends to rely no later than seven days before the date of hearing. (3) THAT the parties file and serve on one another any agreed statement of facts no later than three days prior to the date of hearing. (4) THAT the appeal be listed for hearing for two days on dates to be fixed. (5) THAT the parties have liberty to apply on short notice. (Sgd.) S J KENNER, Commissioner. [L.S.] On behalf of the Public Service Appeal Board. 2013 WAIRC 00429 APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 16 JANUARY 2013 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ANTHONY LAWRENCE APPELLANT -v- COMMISSIONER FOR CORRECTIONS, DEPARTMENT OF CORRECTIVE SERVICES RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER S J KENNER - CHAIRMAN MRS CHRISTINE THOMPSON - BOARD MEMBER MS BETHANY CONWAY - BOARD MEMBER DATE TUESDAY, 16 JULY 2013 FILE NO PSAB 5 OF 2013 CITATION NO. 2013 WAIRC 00429 Result Application discontinued Representation Appellant Ms L Kennewell Respondent Mr N Cinquina Order WHEREAS the applicant sought and was granted leave to discontinue the application, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979 hereby orders – THAT the application be and is hereby discontinued by leave. (Sgd.) S J KENNER, Commissioner. [L.S.] On behalf of the Public Service Appeal Board. 1352 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. 2013 WAIRC 00703 APPEAL AGAINST DISMISSAL WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JESSIE WHITE APPELLANT -v- KIM SNOWBALL DIRECTOR GENERAL DEPARTMENT OF HEALTH RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT - CHAIRMAN MR S SEEDS - BOARD MEMBER MR B DODDS - BOARD MEMBER DATE THURSDAY, 8 AUGUST 2013 FILE NO PSAB 13 OF 2012 CITATION NO. 2013 WAIRC 00703 Result Appeal dismissed Order WHEREAS this is an appeal to the Public Service Appeal Board pursuant to Section 80I of the Industrial Relations Act 1979; and WHEREAS on the 16th day of July 2013 the appellant filed a Notice of Discontinuance in respect of the appeal; NOW THEREFORE, the Public Service Appeal Board, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this appeal be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] On behalf of the Public Service Appeal Board. RECLASSIFICATION APPEALS— 2013 WAIRC 00704 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MS BERYL CAWLEY APPLICANT -v- DIRECTOR GENERAL OF HEALTH AS DELEGATE OF THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S7 OF THE HOSPITAL AND HEALTH SERVICES ACT 1927 AS THE EMPLOYER RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE THURSDAY, 8 AUGUST 2013 FILE NO PSA 7 OF 2012 CITATION NO. 2013 WAIRC 00704 Result Application dismissed Order WHEREAS this is a reclassification appeal made pursuant to the Industrial Relations Act 1979; and 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1353 WHEREAS on the 25th day of February 2013 the Public Service Arbitrator convened a conference for the purpose of conciliating between the parties; and WHEREAS at the conclusion of that conference the applicant sought time to consider her position; and WHEREAS on the 26th day of June 2013 the applicant filed a Notice of Discontinuance in respect of the appeal; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] Public Service Arbitrator. 2013 WAIRC 00705 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MS CHERYL EVANS APPLICANT -v- DIRECTOR GENERAL OF HEALTH AS DELEGATE OF THE MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S7 OF THE HOSPITAL AND HEALTH SERVICES ACT 1927 AS THE EMPLOYER RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE THURSDAY, 8 AUGUST 2013 FILE NO PSA 6 OF 2012 CITATION NO. 2013 WAIRC 00705 Result Application dismissed Order WHEREAS this is a reclassification appeal made pursuant to the Industrial Relations Act 1979; and WHEREAS on the 25th day of February 2013 the Public Service Arbitrator convened a conference for the purpose of conciliating between the parties; and WHEREAS at the conclusion of that conference the applicant sought time to consider her position; and WHEREAS on the 26th day of June 2013 the applicant filed a Notice of Discontinuance in respect of the appeal; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] Public Service Arbitrator. EMPLOYMENT DISPUTE RESOLUTION MATTERS—Notation of— The following were matters before the Commission under the Employment Dispute Resolution Act 2008 that concluded without an order issuing. Application Number Matter Commissioner Dates Result APPL 33/2013 Dispute re bonus payments Harrison C N/A Concluded 1354 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. NOTICES—Union Matters— 2013 WAIRC 00733 NOTICE FBM No. 4 of 2013 NOTICE is given of an application by the Health Services Union of Western Australia (Union of Workers) to the Full Bench of the Western Australian Industrial Relations Commission for alterations to its rule 3 – Constitution. The proposed alterations seek to insert into the rules, new subrules 3.(1)(k) and 3.(1)(l). The proposed alterations are highlighted in bold and underlined text below: 3 – CONSTITUTION (1) The Union shall consist of workers engaged in Professional, Administrative, Technical, Supervisory or Clerical capacities including workers employed in any classification of work which at the 1st day of July, 1982, was covered by an Award or a deemed consent Award to which the union was a party, employed by:- (a) Any private hospital. (aa) Any public hospital and including all salaried employees (being professional, administrative, clerical, technical and supervisory employees) (including those listed in Schedule A to these Rules) employed by the boards of any public hospital constituted under the Hospital and Health Services Act 1927 (as amended) in such hospitals or for the provision of health services in any district or area in which such board or boards are required or have a duty to provide such services and also including all salaried employees (being professional, administrative, clerical, technical and supervisory employees) (including those listed in Schedule A to these Rules) employed by the Metropolitan Health Service Board in the Graylands Selby-Lemnos and Special Care health Services. Provided that those persons who are employed in any hospital or institution established under the Mental Health Act 1962 (as amended)shall not be eligible for membership of the Union and provided further that the following persons shall not be eligible for membership of the Union: all salaried employees (being professional, administrative, clerical, technical and supervisory employees) employed by the Metropolitan Health Service Board or by any other Western Australian State Government person, enterprise or corporation in the Perth Dental Hospital and Community Dental Services or any other entity howsoever described or named which provides any of the services provided by Perth Dental Hospital or by the Dental Services Branch of the Health Department of Western Australia as at 30 April 1998 (referred to collectively as the "Dental Hospital") other than employees who as at 6 May 1998 were financial members of the HSOA until such time as they resign, retire or are permanently transferred or redeployed from the Dental Hospital or cease to be a member of the HSOA. (ab) Any aged care facility, nursing home, and/or health care facility for the aged, chronically ill and or disabled including but not limited to any high care, low care, day care, respite care and/or rehabilitation and/or restorative service for the aged, chronically ill and/or disabled, and any residential and/or community care service or hostel in or about or in connection with and/or ancillary to the provision of such services including employees engaged as Physiotherapy, Occupational Therapy and/or Diversional Therapy Assistants and/or Activity Assistants but not including any other employee of such services who at the 30th of April 2004 was eligible for membership of the Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch, any employee of a local government authority in the provision of ancillary and community care services or any employee employed under Part 3 — Public Service, of the Public Sector Management Act, 1994, any employee of the Disability Services Commission of Western Australia, any employee of a public authority employed in residential facilities associated with state schools and/or juvenile hostels administered by the Department of Community Development. (b) The Hospital Laundry and Linen Service. Provided that any classification of work covered by an Award or Agreement to which the Metropolitan Laundry Employees' Industrial Union of Workers or the Western Australian Clothing and Allied Trades' Industrial Union of Workers is a party as at the 24th of October, 1975, shall be excluded and any worker performing the duties of such classification of work shall not be eligible for membership of the Union. (c) The Western Australian School of Nursing or any service ancillary to the practice of medicine including institutions or facilities solely or substantially engaged in providing Medical Laboratory services, Radiological services, Physiotherapy services, Occupational Therapy services, Speech Therapy services or Social Work services. Provided that any person who is employed as an officer or temporary employee under and within the meaning of the Public Service Act, 1904, or who is determined by the Western Australian Industrial Commission to be a "government officer" shall not be eligible for membership of the Union. Provided further that any person employed in Doctors' surgeries or any wholesale or retail distributing or manufacturing organisation shall not be eligible for membership of the Union. Provided also that any person who is employed by the St. John Ambulance Association for the purpose of operating first aid and/or ambulance services shall not be eligible for membership of the Union. 93 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1355 Provided further also that all salaried employees (being professional, administrative, clerical, technical and supervisory employees) employed by the Board of the Western Australian Centre for Pathology and Medical Research and/or any other Western Australian State Government controlled person, enterprise or corporation who is presently or henceforth the employer of employees in the said Western Australian Centre for Pathology and Medical Research shall not be eligible for membership of the Union. (d) The Western Australian Division of the Red Cross Society in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule. Provided that any person who is employed as a Clerk shall not be eligible for membership of the Union under this paragraph. (e) The Spastic Welfare Association of Western Australia (Incorporated) in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule. Provided that any person employed as a Tradesman and who is performing the usual duties of his trade shall not be eligible for membership of the Union. (f) The Silver Chain Nursing Association (Inc.) in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule. (g) The Slow Learning Children’s Group of Western Australia (Inc.) in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule. (h) Dentists, provided that membership of the Union shall be limited to Dental Therapists. (i) Paraplegic-Quadriplegic Association of Western Australia (Inc.), Good Samaritan Industries or F.C.B. Industries in facilities or services other than those referred to in paragraphs (a) and (c) of subrule (1) of this Rule. For the purposes of this paragraph only, the word "Supervisory" appearing in the preamble to subrule (1) shall include categories of work which oversee and/or supervise the execution or performance of tasks by or the actions and activities of persons who are not employees under Western Australian industrial law. (j) Any non-Government employer engaged primarily in health services, provided that membership of the Union shall be limited to Audiologists, Chiropodists, Clinical Psychologists, Dietitians, Occupational Therapists, Nucleographers, Physiotherapists, Psychologists, Social Workers, Speech Therapists and Welfare Officers, howsoever designated. (k) Notwithstanding any preceding provision of this rule, employers in or in connection with the industry of compounding, dispensing, preparation, manufacture, distribution and sale of drugs, medicines, chemicals and medicinal substances and without limiting the forgoing, also including persons who are: (i) registered Pharmacists employed as Managers or Managing Assistants of a Friendly Society, a retail pharmacy, the dispensary of a Medical Practitioner or Hospital or Public Institution; (ii) assistants who are Registered Pharmacists; (iii) students who are undergoing training prescribed by the Australian Pharmacy Council, engaged or usually engaged in Western Australia as prescribed by law in retail pharmacies and dispensaries connected with Friendly Societies or Hospitals or Public Institutions or conducted as part of the practice of duly qualified Medical Practitioners in the compounding dispensing preparation manufacture distribution and sale of all those drugs medicines chemicals and medical substances which are included in the British Pharmacopoeia, the British Pharmaceutical Codex, the Australian Pharmaceutical Formulary and the formularies issued on behalf of any Public Hospital or similar institution or are used for the alleviation treatment of cure of diseases of the human body.” (l) Subject to subrule (aa) of this rule, Dentist's, employers in the industry of Dental Mechanics including dental prosthetics and/or dental laboratories associated therewith, and the term "Dental Mechanics" shall be construed to cover the following:- (i) Dental Technicians, meaning and including dental mechanics skilled in the mechanics of prosthetic dentistry; (ii) Dental Trainee Technicians; (iii) Dental Attendants and Assistants: (iv) Dental Receptionists; and (v) all persons in the industry not registered as dentists. Provided further that an employee who is solely or substantially engaged in providing his services to other employees of his employer and who is eligible for membership as at the 30th April, 1985, of another registered State organisation within the meaning of the Industrial Relations Act, 1979, shall not be eligible for membership of the Union under this paragraph. Provided also that persons employed by the University of Western Australia or by the Western Australian Institute of Technology or by Murdoch University shall not be eligible for membership of the Union. Any person who is eligible for membership in accordance with the registered rules of the Royal Australian Nursing Federation (Western Australian Branch) Industrial Union of Workers as at the 1st of August, 1966, shall not be eligible for membership of the Union. 1356 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 93 W.A.I.G. (2) (a) A member who has given long and distinguished service to the Union may be awarded Life Membership by the Committee of Management which shall determine, from time to time, the benefits to be granted to Life Members. (b) Upon retirement from employment, a Life Member shall become an Honorary Life Member. (c) Honorary Life Members shall retain all the rights and benefits of Union membership except in the following:- (i) the right to nominate for election to any office in the Union; (ii) the right to nominate, second or endorse any candidate for election to any office in the Union; (iii) the right to vote in any election for an office in the Union. (3) Where a member's employment terminates and that member is in receipt of financial assistance from the Union involving worker's compensation, dismissal or other employment related matter, the member may retain financial membership of the Union. (4) Subject to sub-rule (3) hereof, no person shall be eligible for membership of the Union who is not an employee within the meaning of the Industrial Relations Act, 1979. The matter has been listed before the Full Bench at 2:15 pm on Wednesday, the 2nd day of October 2013. A court location for the matter to be heard will be determined at a later date. Contact the Registry on Level 16 for court location details (08 9420 4444). A copy of the Rules of the organisation and the proposed rule alterations may be inspected at Level 16, 111 St Georges Terrace, Perth. Any organisation/association registered under the Industrial Relations Act 1979, or any person who satisfies the Full Bench that he/she has a sufficient interest or desires to object to the application may do so by filing a notice of objection (Form 13) in accordance with the Industrial Relations Commission Regulations 2005. S. HUTCHINSON DEPUTY REGISTRAR 22 July 2013