NOTICE is given that an application has been made to the Commission by the secretary of The Plumbers and Gasfitters Employees' Union of Australia, West Australian Branch, 
Industrial 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 Troy Smart.

The notice can be read here.

The applicant union applied to the Commission for a right of entry permit for its organiser. The Commission was required to determine whether the organiser was a "fit and proper person" under ss 49O and 49P of the Industrial Relations Act 1979 (IR Act), while also considering a previous contravention of the Fair Work Act 2009 by the organiser during his employment with another union.

The contravention occurred in October 2013, when the organiser entered a worksite without providing the required notice and engaged in discussions with workers. The organiser was found to have acted in an aggressive, loud, rude, and threatening manner towards the Site Operations Manager. As a result, the organiser was ordered to pay a pecuniary penalty of $2,200 and had his right of entry permit suspended for four months in 2016, with a ban on further permits during that period.

The Commission noted that the contravention occurred nearly twelve years prior, the penalties had been served, and the conduct was part of a broader campaign directed by the organiser’s former employer, rather than being solely reflective of their personal character.

In considering the criteria for a "fit and proper person" as set out in s 49P of the IR Act, the Commission evaluated whether the organiser had completed appropriate training, confirmed the absence of any further relevant convictions or penalties, and noted that the organiser had held right of entry permits since 2017 without incident.

The Commission referenced previous decisions, including a 2017 Fair Work Commission determination, which found the organiser to be a fit and proper person to hold a right of entry permit. That decision noted the organiser’s understanding of their statutory obligations and observed that their prior conduct was inconsistent with the standards expected of permit holders. The Commission was satisfied that the historical contravention did not disqualify the organiser, having regard to the passage of time, the absence of further misconduct, and the completion of all penalties.

Senior Commissioner Cosentino, upon consideration of the evidence, made the following findings:

• The single past contravention did not disqualify the organiser, due to the time elapsed, the fulfilment of all penalties, and the organisational context in which the conduct occurred.
• The organiser had demonstrated ongoing compliance and appropriate conduct in subsequent professional roles.
• All requisite training requirements had been satisfied.
• The Fair Work Commission has, over the past eight years, consistently found the organiser suitable to hold right of entry permits.

Accordingly, the Commission determined that the organiser is a fit and proper person to hold a right of entry permit, and a permit was issued.

The decision can be read here.  

The applicant referred a matter to the Commission in March 2024 under the Public Sector Management Act 1994. The respondent filed a response to the application, citing that the applicant’s guilty plea to criminal charges met the conditions required for his subsequent dismissal.

After communication with the applicant and the respondent, the Commission scheduled a conciliation conference on 21 June 2024. After a request for an adjournment by the applicant’s representative, a further conference was scheduled for 18 July 2024, at which the applicant’s representative also did not appear, and later discontinued their representation due to illness and resource constraints.

Over a period of several months in early 2025, the Commission sought clarification from the applicant’s representative regarding the applicant’s intention to proceed with or withdraw the matter.  The representative was warned that a lack of future communication would result in a show cause hearing being listed, at which the applicant would be required to show cause as to why the matter should not be dismissed pursuant to s 27(1) of the Industrial Relations Act 1979. Subsequently a hearing was scheduled for 4 August 2025, at which the applicant and respondent did not appear.

Commissioner Walkington found the applicant had failed to prosecute his case without adequate reason and had failed to respond to several communications from the Commission. For these reasons, and along with the applicant’s failure to appear at the August 2025 hearing, the Commissioner concluded that the applicant did not have sufficient interest for the application to be sustained. Accordingly, an order was issued dismissing the application for want of prosecution.

The decision can be read here.

In this matter, a dispute arose following the appellant’s decision to restructure its Community Safety Business Unit, resulting in the abolition of the Parking and Information Officer role held by the respondent. This restructure engaged the redundancy and redeployment provisions of the City of Stirling Inside Workforce Agreement 2019. Pursuant to the restructure, the appellant offered the respondent several alternative positions, including that of Community Patrol Officer. The respondent union contended that the positions offered did not constitute “suitable alternative employment” within the meaning of clause 10.4 of the Agreement and asserted that the respondent was entitled to redundancy pay under clause 10.7. 

The matter was referred to the Commission, in which the Commissioner determined that the position offered to the respondent was not suitable, having regard to differences in classification, salary, and required qualifications, as well as the circumstances pertaining to retraining. The Commissioner further found that the respondent was entitled to redundancy pay but concluded that the Commission lacked jurisdiction to make a binding declaration regarding redundancy entitlement.

The appellant appealed the Commissioner’s decision to the Full Bench, advancing several grounds:

1. The Commissioner erroneously applied a subjective test by considering the respondent’s personal circumstances, rather than the objective standard required for determining “suitable alternative employment” under the Agreement.
2. The Commissioner exceeded the Commission’s jurisdiction by interpreting the Agreement beyond the intentions of the parties and by considering factors not specified in clause 10.4.2.
3. The findings on redundancy amounted to the exercise of judicial power, which fall outside the Commission’s jurisdiction.
4. The Commissioner erred in concluding that a declaration of redundancy constituted a repudiation of the employment contract.

The Full Bench reviewed the construction of clause 10.4 of the Agreement, emphasising that its primary focus is on preserving employment, with redundancy intended only as a last resort. The meaning of “suitable alternative employment” under clause 10.4.2 requires an objective assessment, specifically comparing classification, salary, and status as defined in the Agreement. The Full Bench found that the Commissioner erred by considering extraneous factors such as work value, duties, and personal circumstances, which are not specified in clause 10.4.2. The Full Bench confirmed that, while the Commission may interpret industrial agreements as part of its arbitral function, it cannot make binding declarations of existing rights, as this would constitute the exercise of judicial power.

The Full Bench upheld the appeal, determining that the Commissioner erred by considering extraneous factors not specified in the Agreement and by applying a subjective rather than objective test to the assessment of “suitable alternative employment”. The Full Bench also agreed that the Commissioner was correct in finding that the Commission lacked jurisdiction to make a binding declaration regarding entitlement to redundancy pay.

Accordingly, the orders sought were not granted; instead, the decision was suspended and remitted for reconsideration in accordance with the Full Bench’s reasoning.

The decision can be read here.  

The appellant was employed by the respondent as Director – Corporate Services. He commenced as Manager of Human Resources in June 2012 and was promoted in April 2013. In May 2023, the appellant was summarily dismissed for misconduct, specifically for initiating an undocumented pay arrangement in April 2019. This arrangement postponed salary increases to be received as backpay in the future and was not disclosed to the CEO nor properly documented.

Upon discovery in March 2023, an investigation was conducted by the respondent, which lead to the appellant’s dismissal. The appellant brought two claims before the Commission: (1) unfair dismissal, arguing the process and outcome were unjust, and (2) denied contractual benefits, seeking payment for the balance of his fixed-term contract.

At first instance, the Commission dismissed both claims, finding that the pay arrangement breached contractual and statutory obligations, was secretive, and justified summary dismissal. The Commission held that the respondent did not need to prove actual breaches of law, but that a “real and substantial risk” of a breach sufficed. The investigation was found to be procedurally fair, and the appellant’s conduct was deemed serious misconduct.

The appellant raised sixteen grounds of appeal to the Full Bench, arguing that the Commissioner wrongly found a “real and substantial risk” of a breach sufficient for summary dismissal without proof of actual misconduct. Claims of procedural unfairness were made regarding the Council’s process under the Local Government Act 1995. The appellant also disputed any contractual breach and argued that any pay arrangement was a self-initiated variation, negating liability. Statutory breaches under various employment and tax laws were denied, as was any breach of the respondent’s Code of Conduct, which was said to rely on incorrect statutory findings. Additional grounds included failure to consider key evidence (such as testimony from the former CEO), reliance on irrelevant matters, flawed credibility assessments, and arguments regarding disparity of treatment, noting that a colleague was terminated with notice, which was relevant to the fairness of the appellant’s dismissal.

In considering the appeal, the Full Bench determined that:

• The Council, not the CEO, was the statutory decision-maker for the dismissal of senior employees under the Local Government Act 1995.
• Procedural fairness was compromised by the failure to provide the Council with complete and accurate information, including the appellant’s full response and mitigating circumstances.
• Summary dismissal requires proof of actual misconduct (wilful or grave), not merely a “real and substantial risk” of breach.
• The contractual right to summarily dismiss was conditional on the appellant being found “guilty” of misconduct.
• Errors were identified in the application of the Minimum Conditions of Employment Act 1993 and the Local Government Officers’ Award, which did not apply during the relevant period, and findings of risk of breach of tax and superannuation laws were unsupported.
• The investigation was found to be procedurally unfair, particularly in the process before the Council, which was misled as to key facts and not provided with all relevant material.
• Some adverse credibility findings were affected by error, especially those relating to the Award and matters irrelevant to the dismissal.

The Full Bench distinguished the circumstances of the appellant’s colleague but emphasised the need to consider mitigating circumstances and the impact of dismissal.

The Full Bench found that the summary dismissal was unfair as the conduct did not meet the contractual threshold for summary termination—specifically, there was no wilful or grave misconduct—and that the dismissal was procedurally unfair due to errors in the process before the Council and a failure to provide accurate, complete information. In addition, reinstatement was deemed impracticable owing to the breakdown in trust and confidence.  Accordingly, the appeal was upheld.

The decision can be read here.