The Western Australian Industrial Relations Commission

NOTICE is given that an application has been made to the Commission by the secretary of the The Construction, Forestry, Mining and Energy Union of Workers under section 49N(1) of the Industrial Relations Act 1979 (WA) for a right of entry permit to be issued to Mr Nathan Fisher.

The notice can be read here.

NOTICE is given that an application has been made to the Commission by the secretary of the The Construction, Forestry, Mining and Energy Union of Workers under section 49N(1) of the Industrial Relations Act 1979 (WA) for a right of entry permit to be issued to Mr Stephen Parker.

The notice can be read here.

 The respondent, who was employed as an overseer/crew header since 1999, was dismissed in 2024 following allegations of disciplinary breaches. The respondent initiated an unfair dismissal claim in the commission, during which documents surfaced suggesting the respondent may have attempted to influence a likely witness, a work colleague. Consequently, the appellant applied under s 27 of the Industrial Relations Act 1979. for the proceedings to be dismissed, relying on correspondence and text messages between the respondent, the colleague, and the colleague’s wife.

The Commission dismissed the appellant’s application to dismiss the proceedings in the first instance, find that, although the respondent’s communications were blunt and sought to inform the colleague that he would be a witness, they did not amount to coercion or intimidation. The Commissioner found that a single text message to the colleague’s wife did not constitute an attempt to improperly influence the evidence to be given in the substantive proceedings.

The appellant appealed to the Full Bench on two grounds: that the Commissioner failed to consider whether the respondent’s conduct amounted to an attempt to induce a witness to give false evidence or refrain from speaking the truth, and the  Commissioner erred in finding that the text message did not bring illegitimate pressure to bear on the witness or have the tendency to interfere with the Commission’s ability to determine the matter justly.  The appellant argued that any attempt to induce a witness to give false evidence or refrain from speaking the truth is improper, regardless of whether coercion or intimidation is present.

The Full Bench considered the appeal within the established legal framework for improper conduct in relation to witnesses. The Bench emphasised that improper conduct towards a witness need not involve overt threats or intimidation. Any attempt to induce a witness to give false evidence or refrain from giving evidence can suffice, regardless of the means used.

The Full Bench found that the Commissioner at first instance had erred by confining the analysis to coercion or intimidation and had not fully engaged with whether the respondent’s conduct was otherwise improper. The context and content of the communications, particularly the ultimatum delivered via the witness’s wife were found to constitute improper pressure.

The Full Bench concluded that the respondent’s conduct - specifically, the text message to the witness’s wife in the context of prior communications - amounted to improper conduct and an attempt to interfere with the proper processes of the Commission, with the potential to affect the just determination of the matter.  Accordingly, the Full Bench upheld the appeal, quashed the Commission’s finding, and dismissed the substantive unfair dismissal proceedings.

The decision can be read here.  

The applicant lodged an application with the Commission in November 2023, alleging unfair dismissed by the respondent. A response from the respondent, dated December 2023, challenged the Commission’s jurisdiction, arguing that it is a trading corporation and a National System Employer under the Fair Work Act 2009, thus falling outside the State system. The respondent also contended that the applicant was not their employee but rather engaged through a labour hire agency.

Despite contesting jurisdiction, the respondent agreed to participate in conciliation. A conference took place in February 2024, during which the respondent committed to updating the applicant regarding the handling of his report about site matters. In March 2024, the respondent confirmed by email that it had received, investigated, and treated the applicant’s complaint seriously, and reiterated its jurisdictional objection, requesting dismissal of the application.

Following this, the Commission repeatedly sought clarification from the applicant regarding his intentions and advised that, in the absence of further correspondence or a Notice of Discontinuance, a Show Cause Hearing would be scheduled. After no response, a hearing was listed for November 2025, of which both parties were properly notified.

The applicant failed to respond to the Commission’s correspondence or attend the Show Cause Hearing. The Commissioner was satisfied that the applicant was properly notified in accordance with the Industrial Relations Act 1979 and relevant regulations, and that he had been given a reasonable opportunity to be heard on whether his application ought not be dismissed for want of prosecution or lack of jurisdiction.

The Commissioner also noted the respondent’s correspondence from March 2024, which indicated that the substantive complaint had been addressed, and that no contrary communication had been received from the applicant. In light of the applicant’s failure to progress his application, the Commissioner concluded that the applicant lacked sufficient interest in the matter. Accordingly, the application was dismissed for want of prosecution.

The decision can be read here.