Discovery of the applicant’s family court documents was ordered because it was deemed relevant to the claims, specifically in assessing the respondent’s allegations of deceit and gaining an advantage, and not considered oppressive.

The applicant filed an unfair dismissal application and denied contractual benefit claim against his former employer, the respondent. The hearing for these claims was scheduled for 15 and 16 November 2023. On 3 November 2023, the respondent filed an application requesting discovery of "Remuneration Documents," specifically those related to the applicant’s divorce and family law proceedings. The respondent argued that these documents were relevant to the issues in the proceedings, particularly to the applicant’s credibility and his motivation for the Pay Banking Arrangement, a matter under contention.

The respondent contended that the applicant voluntarily raised his divorce proceedings during the disciplinary process leading to his dismissal, and this disclosure might explain his motivation for the Pay Banking Arrangement. The respondent asserted that the family court disclosures could be relevant to the appropriateness of reinstatement and whether the applicant deliberately misled the respondent. On the other hand, the applicant opposed the discovery request, arguing that the family court disclosures were irrelevant to the claims and were an invasion of his privacy. He emphasised that his motive for entering the Pay Banking Arrangement was not necessary to establish serious misconduct.

Commissioner Tsang determined that an order for discovery should be made under section 27(1)(o) of the Industrial Relations Act 1979 (WA). Commissioner Tsang found the family court disclosures relevant to the claims, particularly in assessing the respondent’s allegations of deceit and gaining an advantage. Commissioner Tsang deemed the order for discovery not oppressive, noting that the parties agreed it would not delay the upcoming hearing and that any confidential information in the documents could be redacted.

The decision can be read here.

The Commission in Court Session granted the amendment of CICS 5 of 2023, allowing the consolidation of applications CICS 5 of 2023 and CICS 9 of 2023, emphasising efficiency in addressing the broader issue of the capacity to represent industrial interests across local government enterprises.

The applicant sought orders under s 72A of the Industrial Relations Act 1979 (WA) asserting its exclusive right to represent the industrial interests of employees in the outside workforce at the City of Rockingham. Alternatively, the applicant sought orders confirming that the respondent did not possess such rights. The respondent, in response, filed CICS 8 of 2023, seeking orders to represent employees as carpenters, painters, and plant operators if it were determined that they lacked the right to represent them in the main application.

The Commission in Court Session, recognising the commonality of issues, ordered the consolidation of CICS 5 of 2023 and CICS 8 of 2023, with the Local Government, Cemeteries, and Racecourse Employees Union granted leave to intervene. Later, the applicant filed CICS 9 of 2023, extending the scope to 145 local government bodies statewide, maintaining the same orders but with different supporting grounds.

The applicant subsequently applied to amend CICS 5 of 2023 to align with the terms of CICS 9 of 2023 and sought to join and hear both applications together. The intervenor supported the amendment, while the respondent opposed it, arguing it amounted to an abuse of process. The central question was whether the amendment, combining the two applications, would expedite the proceedings and serve the objectives of the Act.

The Commission in Court Session, considering the broad discretion under s 72A, granted the amendment, emphasising that the real controversy involved the respondent's capacity to represent industrial interests broadly. The decision aimed at efficiency, avoiding separate hearings, and expeditiously addressing the broader issue of the respondent's representative role in local government enterprises. The Commission vacated existing directions and ordered the joined hearing of CICS 5 of 2023 and CICS 9 of 2023, finding this approach preferable in terms of time, resources, and overall resolution of the dispute.

The decision can be read here.

The Minister for Corrective Services applied to the Commission under s 46 of the IR Act seeking declarations concerning the meaning of express and implied terms in the Department of Justice Prison Officers’ Industrial Agreement 2020.

Section 46 allows the Commission to declare the true interpretation of an award, general order or industrial agreement while it is in force. Such a declaration is then binding on all courts and all persons with respect to the matter the subject of the declaration.

Minimum conditions of employment contained in the MCEA extend to and bind all employees and employers and are taken to be implied in industrial agreements. The first question the Commission was required to decide was whether s 46 was intended to give the Commission the power to declare the true interpretation of these implied terms.

Senior Commissioner Cosentino concluded that s 46 did not allow the Commission to declare the true interpretation of terms implied by statute. The Senior Commissioner observed that:

1. Section 46 expressly refers to instruments the Commission itself has made.
2. The power in s 46 to vary an instrument to give effect to the provision cannot be exercised in relation to terms implied by statute.
3. There is no policy reason that can be identified as to why the common law position, whereby judicial decisions on the interpretation of legislation in other jurisdictions are not binding on other courts, should be displaced.
4. The power in s 46 is to advance the Act’s object of providing for the observance and enforcement of agreements and awards, not for preventing and settling industrial disputes.
5. The rules that apply when construing an industrial agreement are different to the rules that apply when construing a statute.

The Senior Commissioner noted that this conclusion does not mean that the Commission cannot consider the true meaning of legislation as relevant context, as a step in construing an industrial agreement.

The Senior Commission therefore declined to make any declaration as to the true meaning of provisions of the MCEA but did go on to decide the true meaning of other provisions of the industrial agreement.

The decision can be read here.

The Commission in Court Session has varied the Metal Trades (General) Award’s scope clause under s 37D of the Industrial Relations Act 1979 (WA).

The variations replace a lengthy list of businesses and industries, which had remained unchanged since the 1960s, with a comprehensive definition of “metal trades and associated industries and occupations.”

The amended scope clause is intended to make the award easier to understand and apply. It ensures the award applies as an occupational and industry-based award, to all employees employed in any classification mentioned in the award, in the “metal trades and associated industries and occupations.”

The decision can be read here.

Background

Members of the respondent union, the Australian Nursing Federation (ANF), filed applications under s 66 of the Industrial Relations Act 1979 (WA) alleging the respondent’s non-compliance with its rules. The applicants sought relief under s 66(2)(a) of the Act for their claim that the respondent breached its rules. The claims were initially unspecified and similar, leading to a consolidation and further directions for particulars.

Procedural History

After a directions hearing, the applicants were directed to provide specific details of their claims, and the respondent filed an amended response contesting the allegations. The respondent subsequently sought dismissal of the claims under s 27(1)(a) of the Act, arguing that the grievances presented by the applicants were not within the scope of s 66 and amounted to a complaint about the respondent’s management rather than a breach of rules.

Contentions of the Parties

The respondent, in its application to dismiss, contended that the claims were trivial, lacking substance, and essentially represented a challenge to legitimate decisions made by the respondent’s Council. It argued that the applicants, who were unsuccessful candidates for election, were attempting to involve the Commission in the day-to-day management of the union.

Specifically addressing the individual claims:

1. Claim 1: The respondent argued that Ms Reah, the Secretary, met the eligibility criteria for membership.
2. Claim 2: The respondent contended that Ms Reah was a financial member, and her eligibility was not in question.
3. Claim 3: The respondent asserted that the persons mentioned were not members of the union and not eligible, contradicting the applicants' claims.
4. Claim 4: The respondent argued that this claim was an attempt to re-litigate issues already addressed in a previous case.
5. Claim 5: The respondent defended its actions related to annual general meetings, citing pandemic-related restrictions and logistical challenges.
6. Claim 6: The respondent disputed allegations of improper exercise of powers, including the authorisation of signatories.

Consideration

The Chief Commissioner noted that Claims 1, 2, 3, 5, and 6 raised substantial issues that required examination on their merits. The Chief Commissioner expressed scepticism about the triviality of the claims and emphasised the importance of addressing serious questions of compliance with the respondent’s rules. The Chief Commissioner dismissed the application to dismiss these claims.

However, regarding Claim 4, which alleged non-compliance with Rule 3 of the respondent’s rules, the Chief Commissioner found that it had no prospect of success and dismissed this particular claim. The claim concerned orders that the Chief Commissioner made in Registrar WAIRC v Australian Nursing Federation Industrial Union Workers Perth [2022] WAIRC 00681; (2022) 102 WAIG 1315; [2022] WAIRC 00684; (2022) 102 WAIG 1327, which were the subject of proceedings in Fenn v The Australian Nursing Federation, Industrial Union of Workers Perth and Ors [2023] WAIRC 00806; (2023) 103 WAIG 1793

The Chief Commissioner ordered that the applications, except as to Claim 4, proceed to be heard on a date to be fixed, with a directions hearing to facilitate the hearing of the applications on their merits.

The decision can be read here.