Western Australian Industrial Relations Commission

Commission has no basis for granting interim orders under s 44

The Commission has dismissed an interim order application made by the Civil Service Association of Western Australia (the CSA) that its member to be returned to his workplace after he was suspended on full pay, pending a direction from the respondent that he retire on the grounds of ill health.

The CSA submitted that the Commission’s broad powers under s 44(6)(ba)(iii) of the Industrial Relations Act 1979 (WA) can require ‘parties to exchange information or to divulge their views in relation to the matter in dispute, as an aid in the resolution of a particular industrial dispute.’ Senior Commissioner Kenner found that although s 44(6)(ba) contained broad powers, subpar (iii) could not be relied upon because the terms of subpar (iii) did not have any connection to the return of the CSA’s member to the workplace.

The Senior Commissioner then considered that even if his interpretation of the power under s 44(6)(ba)(iii) was incorrect, the interim order sought would not encourage the parties to exchange or divulge attitudes or information which would assist in the resolution of the matter in question. Furthermore, the Senior Commissioner considered that given that the CSA sought the return of their member to the workplace in the substantive application under s 44 of the Act, the interim order would in effect be a final order. This was a further basis for refusing the order.

Additionally, the Senior Commissioner considered the new information that the respondent was commencing disciplinary action against the CSA’s member. The Senior Commissioner found that the Commission should not interfere in disciplinary procedures under the Public Sector Management Act 2004 (WA) unless the action is obviously baseless and that there was nothing before the Commission to suggest that this was the case.

After considering these issues, the Commission dismissed the CSA’s application for an interim order.

The decision can be read here.

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