The applicant applied to the Commission under s 71 of the Industrial Relations Act 1979 (WA) for declarations that specified rules of the applicant and its counterpart federal body (the federal body) are taken to be the same (for the purposes of s 71). The purpose of the declarations was to enable the Registrar to issue a certificate so that offices under the applicant’s rules would be occupied by persons elected to corresponding offices under the federal body’s rules. An earlier certificate ceased after rule changes to the federal body in July 2020. The applicant’s altered rules were registered in May 2023 and elections under the federal body’s rules were completed in March 2024. 

The Commission considered ss 52A, 71(2) and 71(4) of the Industrial Relations Act 1979 (WA). For membership eligibility, s 71(2) required the Commission to be satisfied that the relevant rules were substantially the same, meaning there must be significant similarity of coverage, not complete alignment. Having compared the respective eligibility provisions (including differences concerning independent contractors and certain categories of persons outside Western Australia), the Commission concluded the membership rules were substantially the same. 

The central issue was whether every office under the applicant’s rules had a corresponding office under the federal body’s rules. The Commission emphasised that correspondence must be ascertainable from the express rules and ordinarily requires examination of the functions and powers of each office, not merely titles. While the functions of the applicant’s Senior President and the federal body’s Branch President were largely comparable, the rules governing the composition of the applicant’s council and the federal body’s council permitted an alternative structure in which no Branch President would be an elected office. Because that possibility meant correspondence could not be established on the rules as drafted, the Commission was not satisfied that all applicant offices could be filled by persons elected to corresponding federal offices. The necessary comparison for s 71(4) therefore could not be undertaken on the face of the rules. 

The Commission was satisfied that the membership eligibility rules met the test in s 71(2) but was not satisfied that the office requirements were met under s 71(4).  

Accordingly, the Commission dismissed the application for declarations.   

The decision can be read here.  

The respondent commenced proceedings in October 2023 challenging the applicant employer’s decision to impose disciplinary action after findings that she had committed breaches of discipline arising from three incidents in January 2023. The disciplinary outcome included a reduction in classification and a transfer. A conciliation conference was held in December 2023, but the matter did not resolve and, over the following months, the referral was not progressed to hearing. 

In February 2025 the applicant applied for the referral to be dismissed for want of prosecution. The Commission refused that application, applying established discretionary principles concerning delay, explanation, hardship, prejudice and the parties’ conduct. In particular, the Commission considered that the respondent had been seeking further material and pursuing negotiations, and that an apparent lack of response to some correspondence supported a finding that the delay was not inexcusable. 

The applicant appealed, contending the Commission made material factual errors and findings without an evidentiary foundation. Because the decision appealed from was interlocutory, the Full Bench first considered whether it was in the public interest for an appeal to proceed. It concluded that it was, given the asserted errors and the public interest in the fair and efficient use of the Commission’s processes. 

On the merits, the Full Bench held that the Commission’s finding that there had been no response to the respondent’s May 2024 correspondence was factually incorrect. It found that this error materially affected the conclusion that the respondent reasonably believed negotiations were ongoing throughout the relevant period. The Full Bench also held that the evidence did not support a broader finding that the respondent reasonably believed the matter was being progressed at all times, particularly during periods of substantial inactivity. 

In reconsidering the matter, the Full Bench examined the overall delay from the commencement of the proceedings to the filing of the dismissal application. While some delay was accepted as reasonably attributable to reviewing the evidence and making limited attempts at negotiation, the Full Bench found that the greater part of the delay was inadequately explained and could not be justified by negotiations alone. The respondent’s attempts to resolve the matter did not account for extended periods of inactivity and did not discharge the obligation to prosecute the proceedings with reasonable diligence. 

The Full Bench concluded that the prejudice arising from prolonged delay, the passage of time since the underlying events, and the public interest in finality and expedition in employment related disputes outweighed any hardship to the respondent in losing the opportunity to have the referral determined on its merits. 

Accordingly, the appeal was allowed, the first instance decision was quashed, and the application was dismissed for want of prosecution. 

The decision can be read here.