In an appeal from the Industrial Magistrates Court, the Full Bench was required to consider the meaning of the Public Service Award 1992’s provisions about representational rights.

The appellant is an employee association. It was the nominated representative of two of the respondent’s employees for the purpose of dealing with disciplinary processes involving the employees.

The appellant commenced proceedings against the respondent in the Industrial Magistrates Court, alleging that it had breached the Award’s representational rights provisions when the respondent emailed an invitation to the employees to attend a meeting about the disciplinary matters, without communicating directly with the Civil Service Association as the employee’s nominated representative. Clause 36A(3) of the Award says that an employer “will recognise the choice of representative made by an officer, which may include a union representative, a union official or an employee of the union.” However, the appellant alleged the respondent’s conduct was in breach of clause 36A(4) of the Award, not clause 36A(3). Clause 36A(4) says that when an employer has been notified in writing that a representative acts for an officer, and certain information is contained in the notice, then “the employer must recognise that person’s representational capacity in all future dealings on that matter.”

At first instance, the Industrial Magistrate accepted the appellant’s argument that clause 36A(4) imposed a mandatory obligation on the respondent to recognise the appellant’s representational capacity. But her Honour dismissed the appellant’s claim because her Honour was satisfied that the appellant’s representational capacity was recognised when the respondent informed the employees, in writing, that they were entitled to have a union representative attend the meeting with them.

In appealing from the dismissal of the claim, the appellant alleged that the Industrial Magistrate had incorrectly interpreted clause 36A(4).

The Full Bench embarked on its own consideration of the meaning of clause 36A(4). It formed a different view to the Industrial Magistrate, finding that clause 36A(3) contained the substantive obligation in relation to representation, whereas clause 36A(4) did not impose any proactive or additional obligation. Rather, clause 36A(4) provided the process for triggering and enabling observance of the obligation in clause 36A(3). As this construction is not one which would have resulted in the appellant’s success at first instance, the appeal was dismissed.

The Decision can be read here.