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[2009] WAIRComm 249
plaintiff. Declarations issued that the listed Ethnic Education Assistants were not subject to clause 14.3 exemptions and that those currently employed in the role were eligible to request a review under...
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The Commission made two declarations about Ethnic Education Assistants listed in an appendix amended on 13 February 2009. First, it declared that those employees were not covered by any exemption in clause 14.3 of the 2007 General Agreement. Second, it declared that listed employees still working in that role could request a review of their employment status under clause 14.4, with a view to gaining permanency. The document does not explain why the Commission reached those conclusions, identify the employees, reproduce the agreement clauses, or say that any employee was made permanent.
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1,666 words · generated 01/10/2026
This matter was described as a “DISPUTE RE FIXED TERM CONTRACTS OF UNION MEMBERS”. The applicant was the Liquor, Hospitality and Miscellaneous Union, Western Australian Branch. The respondent was the Director General, Department of Education and Training. It was dealt with by the Western Australian Industrial Relations Commission, before Commissioner J L Harrison, on 5 May 2009, under file number CR 34 of 2007.
The supplied text is a short declaration, not a full set of reasons. It records that counsel appeared for both parties, and states that the Commission acted “pursuant to the powers conferred on it under the Industrial Relations Act, 1979”. It does not reproduce the parties’ submissions, the evidence, the relevant agreement clauses in full, or the Commission’s explanation of its conclusions. That limitation is important: the declarations can be reported accurately, but the reasoning that led to them cannot be reconstructed from this text alone.
The declarations concern Ethnic Education Assistants identified in Appendix 1, as amended on 13 February 2009. The appendix is not included in the supplied document. The Commission made two declarations:
The second declaration is carefully limited. It identifies both a group, those named in the appendix, and a condition, that they were currently employed in the role by the respondent. It establishes eligibility to request a review as expressed by the Commission. It does not say that a request was made, that a review was conducted, or that any employee obtained permanent status.
The supplied document does not provide reasons explaining why the Commission issued the declarations. It therefore does not disclose the Commission’s analysis of the agreement, the evidence it accepted, or the parties’ competing arguments. Any account of the underlying rationale would go beyond the available source.
What can be stated is the operative result. For clause 14.3, the Commission declared that none of the exemptions contained in that clause applied to the listed employees. For clause 14.4, it declared that the listed employees who remained employed in the role could request a review of their employment status, with a view to gaining permanency.
The distinction between those two declarations matters. The first addresses the employees’ relation to specified exemptions. The second addresses eligibility to request a review, rather than the outcome of a review. The wording does not itself declare that the employees were permanent, that the respondent was required to grant permanency, or that any individual application for review would succeed.
The declaration also depends on identifying the correct employees. It refers to Appendix 1 “as amended on 13 February 2009”, but that appendix is absent from the supplied text. Without it, a reader cannot determine which people were included or check how the list was amended. The Commission’s declarations should therefore be understood by reference to that identified appendix, rather than as a ruling about every Ethnic Education Assistant employed by the respondent.
The supplied decision does not describe the legal position before the declarations. It does not set out clause 14.3 or clause 14.4, explain their history, or identify any earlier decision or dispute about their meaning. Nor does it describe a general rule governing fixed-term employment. The title indicates that the case concerned fixed-term contracts of union members, but a title is not a substitute for reasons or for the terms of the governing agreement.
The change recorded by the document is specific to the listed employees and the two agreement clauses. After the declaration, the Commission’s stated position was that the employees named in the amended Appendix 1 were not subject to any exemption in clause 14.3. For those among them who were currently employed in the relevant role, the Commission declared eligibility to request a clause 14.4 review directed towards gaining permanency.
The text does not establish a broader change in legislation or a general rule applicable beyond the employees identified in the appendix. It cites the Industrial Relations Act, 1979 as the source of the Commission’s powers, but provides no section number and does not discuss the Act’s scope or effect. It identifies the 2007 General Agreement by name and clauses 14.3 and 14.4, but does not reproduce their wording. Accordingly, a before-and-after account should remain confined to the declarations rather than infer a general alteration to employment law.
Declaration 1: “THAT the Ethnic Education Assistants listed in Appendix 1, as amended on 13 February 2009, are not the subject of any of the exemptions contained in Clause 14.3…”
In plain English, the Commission determined that the people identified in the amended appendix did not fall within any exemption in clause 14.3. The text does not say what the exemptions were or explain how the Commission applied them. The appendix is essential to identifying the people covered.
Declaration 2: “THAT the Ethnic Education Assistants named in Appendix 1, as amended on 13 February 2009, who are currently employed in this role by the respondent, be eligible to request to have their employment status reviewed pursuant to Clause 14.4…”
In plain English, the Commission declared that listed employees still working in the role could ask for their employment status to be reviewed under clause 14.4. This is not the same as saying that their employment status had already changed.
Purpose expressed in declaration 2: “…with a view to gaining permanency.”
That wording identifies the aim of the review as gaining permanency. It does not say that permanency was automatic, guaranteed, or awarded by the Commission. The declaration concerns eligibility to request review and its stated purpose.
Authority statement: The Commission says it acted “pursuant to the powers conferred on it under the Industrial Relations Act, 1979”.
This identifies the Act as the source of the Commission’s authority for the declaration. The document does not specify which provision was relied on or discuss the legal limits of that power.
On the face of the declaration, the decision is directly relevant to questions involving the Ethnic Education Assistants identified in Appendix 1, as amended on 13 February 2009, and their position under clauses 14.3 and 14.4 of the 2007 General Agreement. For the clause 14.4 declaration, the person also had to be currently employed in the relevant role by the respondent.
The decision’s stated scope is tied to those particulars. The text does not establish that the same declarations apply to employees absent from the appendix, to employees in different roles, or to employees of another employer. Nor does it state how the Commission might treat a later agreement, a differently worded exemption, or a review request based on other facts.
For research and compliance purposes, the key identifying features in the document are therefore the named employee group, the precise appendix version, the employer, the relevant role, and the agreement clauses. The appendix and the full agreement would be needed to check the covered employees and the clauses’ wording. Those are source limitations, not additional conditions announced by the Commission.
The decision may also be relevant where the question is whether clause 14.3 exemptions applied to those listed employees, or whether current employees in the identified role could request a review under clause 14.4. The declaration answers those questions at the level shown in its text. It does not provide a general test for assessing other fixed-term employment arrangements.
The supplied document contains no discussion of later decisions, and no subsequent authorities are provided here. It therefore does not support a claim that later courts or tribunals followed, applied, distinguished, questioned, or otherwise treated this decision in a particular way.
Nor does the short declaration identify earlier authorities considered by Commissioner Harrison. The document contains no case citations, no precedent analysis, and no numbered reasons discussing other decisions. The absence of such material in the supplied text does not prove that no later treatment exists; it means that later treatment cannot be established from this source alone.
For a precedent-history assessment, the available text supports only a narrow description: the Commission issued declarations in this particular dispute on 5 May 2009. Whether the decision has been cited or relied upon elsewhere would require other legal sources, which are not included in the materials provided.
Several matters remain unresolved by the supplied document. First, the full wording of clauses 14.3 and 14.4 is absent. The declarations identify the clauses and their practical subject matter, but not their complete terms. Second, Appendix 1 is absent, so the covered employees cannot be identified from this text alone. Third, the document does not explain the factual basis for the declarations or the Commission’s interpretation of the agreement.
The text also leaves the practical outcome of any review open. It says eligible employees could request a review “with a view to gaining permanency”, but it does not describe the review process, any criteria to be applied, a deadline, or the consequences of a successful or unsuccessful review. No such details should be inferred from the declaration itself.
Finally, the document does not tell us whether any employee made a request, whether the respondent conducted a review, or whether any employee later gained permanency. It records eligibility to request review for a specified group, not the completion or outcome of an individual review.
This analysis is based only on the supplied declaration. It is general legal information, not legal advice; Zoe can make mistakes; before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
PARTIES LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH
DIRECTOR GENERAL, DEPARTMENT OF EDUCATION AND TRAINING
CITATION NO. 2009 WAIRC 00249
HAVING HEARD Mr M Aulfrey of Counsel on behalf of the applicant and Ms R Hartley of Counsel on behalf of the respondent, the Commission, pursuant to the powers conferred on it under the Industrial Relations Act, 1979, hereby declares:
Declarations issued that the listed Ethnic Education Assistants were not subject to clause 14.3 exemptions and that those currently employed in the role were eligible to request a review under clause 14.4.