The Commission has dismissed an application to intervene in an interpretation matter between the Western Australian Prison Officers’ Union and the Minister for Corrective Services.

Background

The Western Australian Prison Officers’ Union (‘WAPOU’) and the Minister for Corrective Services (‘Minister’) disputed the correct interpretation of cl 48.2 of the Department of Justice Prison Officers’ Industrial Agreement 2020 (‘Prison Officers’ Agreement’). WAPOU filed an application for an interpretation of cl 48.2 under s 46 of the Industrial Relations Act 1979 (WA) (‘IR Act’).

WAPOU informed the Commission that the Minister had become aware of cl 48.2 of the Prison Officers’ Agreement similarity to cl 19(5) of the Public Service Award 1992 (Public Service Award).

The Commission invited the Civil Service Association (‘CSA’) and the Minister for Industrial Relations to apply to intervene. The Minister for Industrial Relations did not wish to intervene, and the CSA sought to intervene.

Contentions

The CSA contended it had sufficient interest to intervene as:

• CSA industrial instruments cover many employees, and due to the similarity of the clauses in the Prison Officers’ Agreement, Public Service Award and nine other CSA instruments.
• APPL 15/2022 would be persuasive and impact interpretation of similar clauses.
• APPL 15 of 2022 arose from a disciplinary matter dealt with by Part 5 of the Public Sector Management Act 1994 (WA) (‘PSM Act’), which applies to CSA members.
• Interpretation of industrial awards and instruments are not as different as the Minister alleged, and the CSA should be allowed to make submissions on the agreement and award.
• Not granting leave would not prevent repetitive litigation on and future interventions.

The WAPOU contended the CSA should be granted leave to avoid multiple proceedings and due to a serious question of fact and law about the decision affecting CSA industrial instrument interpretation.

The Minister objected to leave being granted, contending the proper approach to construction of industrial agreements and awards are different, and that the proper construction of the Prison Officer’s Agreement could not impact that of the Public Service Award, or the other instruments referred to. The Minister contended the CSA did not have sufficient interest to warrant leave to intervene.

Findings

The Commission found it may permit intervention if it considers a person has a sufficient interest in the matter, under s 27(1)(k) of the IR Act. The Commission considered intervention principles and authorities, particularly Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513; (1985) 13 IR 86 (‘Ludeke’) and Australian Workers' Union, West Australian Branch, Industrial Union of Workers & others v (Not Applicable) [2016] WAIRC 00966 (‘AWU v NA’).

The Commission noted, applying Ludeke and AWU v NA, that if the CSA’s or its members rights would be directly affected by the order sought in APPL 15/2022 then the CSA would have sufficient interest. The Commission noted the Prison Officer’s Agreement did not apply to the CSA or its members meaning declaring its interpretation did not directly affect them. The Commission found that the similarity of clauses did not mean that the CSA had a sufficient interest, and that the proper approach to the construction of awards is not identical to that of agreements. The Commission considered rules surrounding interpretation of industrial instruments and noted that the principles applying to interpretation of industrial instruments are generally those that apply to contracts.

The Commission noted that there may be circumstances where a person has a sufficient interest in a matter, even where their interest is indirect and would not support legal intervention in proceedings. The Commission noted that industrial agreements have unique textual contexts and that it does not follow than an interpretation of a clause would affect interpretation of another agreement or award. The Commission found that the industrial rights of CSA members under other industrial instruments would not suffer, directly or indirectly, if the CSA was not permitted to intervene. The Commission found any indirect effect was not substantial and sufficient to entitle the CSA to be intervene.

The Commission found that intervention would not prevent multiple proceedings as resolving APPL 15/2022 could not settle other disputes about similarly worded clauses elsewhere. The Commission found that the disciplinary matter being dealt with by the PSM Act did not mean the CSA had a more sufficient interest beyond the interest of any other public sector employee.

The Commission was not persuaded the CSA had sufficient interest and dismissed the application.

The decision can be read here.