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Commission lacks power to vary orders of Chief Commissioner

The applicant union filed an application to amend the Municipal Employees WA Award 2021. The application was served to 25 local government respondents and the West Australian Local Government Association (WALGA), the latter of whom represented several of the respondents in the proceedings.

During the proceedings, WALGA applied for a stay of a direction directing the organisation to file documents relating to its ‘sector survey’ concerning proposed amendments to the award. Chief Commissioner Kenner granted the stay application, pending the hearing and determination of an appeal, and directed that should the appeal be dismissed, the documents must be filed within two working days. Shortly thereafter, the appeal was dismissed.

Following the dismissal of the appeal, WALGA sought to redact certain information from the documents it produced, including personal information of local government employees and responses from non-respondent employers. The applicant objected to these redactions, arguing that the information was relevant to the proceedings and that the confidentiality directions already in place were sufficient. The Local Government, Racing and Cemeteries Union (WA) (LGREU) and several shires also objected to WALGA's application for redactions.

Commissioner Walkington determined that the Commission lacked power to vary orders made by the Chief Commissioner in stay proceedings under s 49(11) of the Industrial Relations Act 1979. Additionally, the Commissioner noted that the variations sought by WALGA were effectively a rehearing of issues previously decided, and the doctrine of res judicata precluded the Commission from rehearing these issues. The Commissioner therefore dismissed the application to vary orders.

The decision can be read here

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Public Service Arbitrator grants leave for legal representation

In the substantive matter, the applicant union seeks that the Public Service Arbitrator (the Arbitrator) review the respondent’s decision to cease payment of paid sick leave for a member of the applicant union for a period of three months. The respondent applied to the Arbitrator for leave to be represented by legal counsel.

The applicant opposed the respondent's request to be represented by legal counsel, contending that there was no serious issue of law to be argued, and that the Arbitrator has the authority to review the decision under the Industrial Relations Act 1979. The respondent argued that the applicant's claim contravenes a 'no further claims' clause in the Western Australian Police Force Industrial Agreement 2022 and that the Arbitrator does not have the power to order the relief sought by the applicant. The respondent thus contended that the Arbitrator would benefit from the appearance of counsel due to the legal questions raised.

The Arbitrator determined that the respondent’s arguments regarding the ‘no further claims’ clause, the Arbitrator’s powers, and jurisdictional issues do raise substantial legal questions which would benefit from the appearance of legal counsel. Consequently, the Arbitrator granted leave for the respondent to be represented by a legal practitioner.

 The decision can be read here

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Interim order made to prevent union determining Summons against member

In one of two related applications under s 66 of the Industrial Relations Act 1979, the applicant, a member of the respondent union, sought interim orders against the respondent to prevent the respondent’s Council from considering and determining a Summons to Show Cause issued to the applicant. The Summons was issued under union rules pertaining to the suspension, removal from office, and expulsion of branch officers.

Chief Commissioner Kenner identified several issues suggesting a prima facie case. The Summons failed to explain how the alleged conduct related to the applicant's office as Vice President, as required by respondent’s rules. The rule requires that the Summons state the allegations and the evidence on which they are based. However, the Summons issued to the applicant did not adequately set out how the allegations related to her position as Vice President, nor did it specify the gross misbehaviour in relation to her office. Additionally, there were concerns about bias, as key individuals involved in the allegations were also part of the decision-making process.

The balance of convenience was found to heavily favour the applicant. The potential consequences for her, including removal from office and expulsion from the union, posed a risk of irrecoverable harm. The respondent did not establish any significant harm that would result from granting the interim orders. The extensive delay in issuing the Summons and the timing of events also raised concerns about possible manipulation.

The Chief Commissioner decided that an interim order should be made in favour of the applicant. The decision was based on the principles of equity and good conscience, considering the serious potential consequences for the applicant and the issues surrounding the issuance of the Summons.

The decision can be read here

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Association not participating in industrial relations matters

The applicant organisation has applied to the Commission seeking the establishment of an Interim Board of the respondent association to operate its affairs pending an application to the Registrar for deregistration. A member of the respondent association, the applicant made the application due to changes in the respondent’s rules, not reflected in its registered Rules.

The applicant contended that the respondent, an employer association for community service organisations ostensibly intended to participate in industrial relations matters, had not done so and was instead directing its focus towards funding and other issues. The application also sought the ability for members to attend General Meetings and vote remotely, and a waiver of the two-thirds majority requirement for voting to dissolve the organisation, allowing a simple majority instead.

Chief Commissioner Kenner considered that the orders sought should be made.

The decision can be read here

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