Western Australian Industrial Relations Commission

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The Full Bench upheld an appeal by the Shire of Denmark against a decision of the Commission to find that its former Director of Infrastructure Services, Mr Whooley, was invalidly dismissed and award him almost $44,000. 

The Commission at first instance found that the purported dismissal of Mr Whooley by the CEO was invalid because the decision to dismiss him ultimately rested with the Shire’s Council.  The Commission found that the Shire owed Mr Whooley his salary and allowances until he resigned months after the dismissal, because the dismissal was invalid.  Mr Whooley had previously disputed his dismissal in the Fair Work Commission and the parties reached in‑principle agreement to settle that matter.  The Commission found that, because the dismissal was invalid, there was nothing for an agreement to settle a claim of unfair dismissal to fasten upon; there was no dismissal.  The agreement was therefore of no effect and could not prevent Mr Whooley from bringing his claim for denied contractual entitlements. 

The Hon. A/President Smith and Commissioner Emmanuel held that the dismissal was valid.  They also held that the agreement to compromise the unfair dismissal proceedings in the Fair Work Commission between the Shire and Mr Whooley was not void, and therefore was a bar to proceedings.  A/Senior Commissioner Kenner disagreed with the majority in a number of aspects of the decision.

A/President Smith found that the terms of the Local Government Act 1995 were simply a direction to submit a recommendation to the Shire Council to dismiss.  It is a principle of law that if Parliament intends to make a contract void in certain circumstances, the Act must say so.  Her Honour observed that this is in contrast to other provisions in the Local Government Act which deem other decisions of the CEO to have no effect.  Therefore, the decision to dismiss was not invalid simply because a directive provision of the governing Act was not complied with. 

The majority also found that the agreement reached to settle a claim of unfair dismissal was valid, and could be an effective bar to proceedings.  The Hon. A/President observed that the law in this area is not settled.  She went on to conclude that Mr Whooley would have to satisfy the Commission that there was a misrepresentation or fraud about the validity of the dismissal at the time the agreement was struck, or that because of the invalidity of the dismissal, the agreement would be impossible to perform.  The majority were not convinced that either of these tests were satisfied.  Therefore, even if the dismissal was invalid, the agreement is a bar to proceedings in any event. 

A/Senior Commissioner Kenner held that the dismissal was invalid because the Local Government Act requires Council to be the ultimate decision maker in relation to senior employees.  He arrived at that conclusion having considered the principles of democratic and responsible local government included in that Act.  The A/Senior Commissioner also held that the agreement to settle the matter was not a bar to proceedings because the Shire of Denmark has not paid the settlement sum in accordance with the agreement.  It is a rule of law that for an agreement to be a contract and have binding effect, both parties must give something in consideration for the agreement.  The Shire cannot get the benefit of a bar to proceedings without giving anything to Mr Whooley.

The decision can be read here.

With the Senior Commissioner’s assistance, a revised offer was made which is presently the subject of a ballot by WA Police Union members. 

The Commission dismissed an application alleging breaches of union rules.  The applicant, Mr Bebich, was an officer of the WA Branch of the Transport Workers' Union (TWU) and its counterpart National body, the Nationally registered TWU.  Pursuant to the rules of the National body, disciplinary action was taken against Mr Bebich and he was expelled.  By this application, Mr Bebich sought: 

  • to be reinstated; and
  • an order that the union abide by Rule 16, requiring it to call a Special Meeting in relation to a petition by members regarding alleged misconduct by other officers.

The Hon. A/President examined the structure of National and State organisations and the effect of dual registration and separate corporate organisations.  Her Honour also considered the power to enforce a petition pursuant to s 66 of the Industrial Relations Act 1979 where officers hold office pursuant to s 71(5) and the requirement of particulars of alleged breaches of union rules.  Her Honour dismissed the application to enforce the rules of the WA Branch of the TWU because: 

  1. there is no jurisdiction to deal with the application; and
  2. the purpose of a meeting convened under Rule 16 is to hear and determine charges against officers of the union. However, the officers of the State organisation cannot be removed as they are Federal officers who hold office by operation of s 71(5). 

Officers of the State registered TWU are elected to their positions pursuant to the rules of the Nationally registered TWU.  That is because a 'Section 71 Certificate' operates.  That Certificate allows the State organisation's positions to be filled by the people elected to fill the corresponding positions in the Nationally registered TWU. 

The A/President found that the WA Branch of the TWU and the Nationally registered TWU are separate legal entitles, bound to follow different rules.  Her Honour observed that the Western Australian Industrial Relations Commission only has jurisdiction to enforce the rules of the State organisation.  The rules of the National body are incorporated into the State body, but only to the extent that there is no inconsistency with the State rules.  The rules of the State organisation only deal with expulsion of members pursuant to its own rules, not the National body's rules.  The A/President could not deal with the matter of Mr Bebich's expulsion because he was expelled pursuant to the National body's rules, which afforded him his status in the WA Branch of the TWU because of the Section 71 Certificate. 

In respect of the Special Meeting, it was alleged that officers of the State organisation had misappropriated its funds in relation to the purchase of motor vehicles and payment of car allowances.  Under the rules, there is a process for 'charges' to be laid to deal with officers of the State organisation who have breached their duties to the organisation.  Her Honour found that the charges alleged by Mr Bebich lacked detail.  They did not include details such as a date when the breach is alleged to have occurred.  Therefore, the charge did not establish a relationship in time between the responsibilities of the current management committee and the alleged misconduct.  The A/President found that it appeared that the charge was being used to gather information from the officers as to what occurred when the vehicles were purchased and the car allowances were paid.  Such a purpose is not consistent with the object and purpose of the State union's Rule 16. 

The decision can be read here.

The Commission sitting as the Public Service Arbitrator today convened a further compulsory conference under s 44 of the Industrial Relations Act 1979 (WA) concerning the present police dispute. This course was foreshadowed in the Commission’s orders and recommendation issued on 27 September 2017.

As mentioned in the Commission’s earlier statement of 27 September 2017, the Commissioner of Police’s final offer for a new industrial agreement was put to the Union on 22 September 2017. The Union has now formally rejected the offer.

At today’s compulsory conference, possible options for a limited arbitration of issues in dispute under s 42G of the Act were discussed. This course requires both parties to agree on matters to be referred to arbitration. The conference concluded on the basis that the Union will further consider its position and report back to the Commission by close of business Thursday, 12 October 2017.

The Commission sitting as the Public Service Arbitrator will convene a further compulsory conference concerning the present police dispute at 10:30 am on Tuesday, 10 October 2017.

The Commission will issue a statement regarding the outcome of the conference in due course.

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Western Australian Industrial Relations Commission
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Phone : (08) 9420 4444
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