The Western Australian Industrial Relations Commission

In an ongoing matter regarding union coverage of local government employees, the Commission in Court Session addressed an oral application by the respondent union during proceedings, which sought broad-ranging orders for the production of documents from the applicant unions and intervenor.  The application was based on allegations of collusion between the applicants and intervenors in the substantive matter which were said to be relevant to the credibility of witnesses and the ability of the applicant union to represent local government employees effectively.
The Commission in Court Session was not persuaded to make the orders as sought   and found no basis for an order for the production of documents, considering the request from the applicant to be too broad. However, the Commission did make limited orders for production of documents related to the evidence in the proceedings, as these were relevant to the issues identified by the respondent.
The Commission considered the respondent’s allegations, and the evidence presented. The Commission noted that there was no direct evidence of collusion or improper conduct by the applicants or their representatives, and emphasised the need to avoid further delays and additional costs in the proceedings. The Commission found that the respondent had not established any material change in circumstances to warrant revisiting its earlier decision. The Commission concluded that the orders sought by the respondent were oppressive, speculative, and contrary to the public interest.
The Commission granted the applications by the applicant unions to dismiss the respondent’s application for production of documents. The proceedings were re-listed for further directions to deal with the claim for privilege arising from the orders previously made.
 
The decision can be read here. 

In the original claim, the respondent, who was employed as the Advertising Manager for the appellant, filed a claim for denied contractual benefits, alleging the appellant failed to pay additional payments of $10,000 per quarter for taking on increased responsibilities due to a promotion.  The respondent sought a declaration that he had been wrongfully denied these contractual benefits over a period of two quarters, and requested payment of the full amount, totally nearly $18,000.
The appellant argued that the additional payments were contingent upon the respondent meeting Key Performance Indicators (KPIs), which he allegedly failed to do.  However, the Commissioner determined that the agreement for additional quarterly payments was not contingent upon meeting KPIs, and therefore the appellant’s failure to pay for the completed quarter was a breach of contract.  The Commissioner ordered the appellant pay the respondent the sum of $10,000, and dismissed the remainder of the claim, as the respondent did not complete the entire quarter.
The appellant's appeal challenged various aspects of the Commissioner's original decision, alleging bias and procedural unfairness. The appeal notice contained several points, including the Commissioner's failure to acknowledge valid reasons for non-compliance with programming orders, the alleged bias in the Commissioner's decision, and the failure to admit certain evidence.
The Full Bench considered these matters and emphasised the need for a party to be given a reasonable opportunity to present their case and respond to issues adverse to them.  The Full Bench found that the appellant's case lacked evidence to establish that the respondent's quarterly payments were conditional upon achieving KPIs; subsequently the appellant conceded that no document existed to support this claim. The Full Bench found that the additional payments were intended as remuneration for the increased responsibilities of the new position and concluded that the Commissioner’s decision was consistent with the evidence.  The claims of bias and procedural fairness were unsubstantiated.  Accordingly, the appeal was dismissed.

The decision can be read here. 

The applicant commenced a referral of an unfair dismissal application in the WAIRC, seeking reinstatement to her position as Chief Executive Officer with the respondent.  The applicant had concurrently initiated judicial review proceedings in the Supreme Court of Western Australia, challenging the respondent’s decision to terminate her employment. The applicant alleges the decision of the respondent was legally invalid due to a breach of natural justice, lack of evidence in justifying the decision, an absence of power to make the decision under the Local Government Act 1995 (WA), and a failure to follow legal procedures. 
The applicant subsequently requested that the Commission adjourn, postpone or stay the existing unfair dismissal application until the judicial review proceedings were determined.  
In responding to the applicant’s stay application, the respondent argued the Commission lacked jurisdiction to hear the matter due to the absence of a valid dismissal, and that the applicant’s conduct in maintaining both the unfair dismissal application and judicial review proceedings would amount to an abuse of process. 
Senior Commissioner Cosentino considered whether there was power to stay the proceedings pursuant to s 27 of the Industrial Relations Act 1979 (WA), and whether to exercise discretion to grant the stay application. Factors considered included whether the applicant’s conduct amounted to an abuse of process, the effect of the judicial review proceedings on the unfair dismissal application and avoiding multiple proceedings on similar issues. 
Senior Commissioner Cosentino concluded that the applicant’s alternative claims did not constitute an abuse of process, as the actions in each sought different remedies.  Further, the Senior Commissioner concluded that the judicial proceedings could resolve the matter in the first instance, and therefore staying the unfair dismissal proceedings would be appropriate.  Accordingly, the stay was granted.

The decision can be read here. 

The applicant union commenced proceedings seeking declarations under s 52A of the Industrial Relations Act 1979 (WA) confirming the applicant’s federal counterpart, and seeking a certificate under s 71 of the Act, allowing persons elected to office in the applicant’s Federal branch to be taken as elected to the corresponding office in the applicant, without the need for a separate State election.
These proceedings follow a series of other matters which were outlined in a 2024 decision of the Commission in Court Session, in which the applicant union filed an application under s 62 of the Act for an alteration of the applicant’s rules in relation to its eligibility for membership.  In those proceedings, the Commission in Court granted the applications.  
As a result of these earlier proceedings the present application was brought, seeking a fresh s 71 certificate.  The application was accompanied by a statutory declaration made by the Secretary of the applicant, which set out a comparison, in table form, of the offices of the applicant and the Federal branch.  
The Commission in Court Session considered the provisions under sections 52A, 71(2), and 71(4) of the Act, and were satisfied that the rules of the applicant and the Federal branch in relation to qualifications of persons for membership were substantially the same, meeting the requirements of section 71(2) of the Act. Comparing the functions and powers of the respective offices, the Commission was satisfied that for each office in the applicant union, there was a corresponding office in the federal branch with sufficiently similar powers and duties. The Commission in Court Session was satisfied that the relevant conditions were met under ss 71(2) and (4) of the Act and made declarations accordingly.

The decision can be read here.