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.

The Commission in Court Session has varied the Farm Employees’ Award’s scope clause under s37D of the Industrial Relations Act.

The award’s scope clause contained exclusions that referred to repealed or obsolete industrial instruments, and organisations who no longer exist.

The award’s scope clause defined its scope by reference to “farms” and specified activities conducted on farms, but the definition was not comprehensive. This means that there was no State award coverage for some farm workers.

The variations contemporise the definition of “farming industry”, based on the definition in the federal Pastoral Industry Modern Award 2020. The variations mean that, for the first time, the dairy industry and the aquaculture industry will be covered by the Award.

The Commission in Court Session has deferred the commencement of the variations as they apply to the dairy industry, to a later date still to be announced. This is to allow the dairy industry time to implement any changes necessary as a result of award coverage.

The decision can be read here.

The Commission dismissed the applicant's claims, emphasising the validity of the expulsion, as the respondent acted within its rules and the applicant failed to utilise available avenues for his defence and appeal.

The case centred around an incident at Wandoo Rehabilitation Prison on 26 November 2020, involving the applicant, a prison officer accused of threatening a colleague who was the partner of the respondent's Secretary. The applicant, seeking clarification, wrote to the respondent on 23 December 2020, but the response lacked detail. An investigation was reopened on 11 January 2021, with the applicant alleging the respondent's Secretary influenced it. On 2 March 2021, the respondent's President informed the applicant of his expulsion as a union member for non-attendance at a State Council meeting on 20 January 2021.

The applicant argued denial of natural justice, accusing the Secretary of misusing his influence. He claimed the respondent failed to observe its rules and sought an acknowledgment of the expulsion's unfairness and $80,000 in legal costs. The respondent contended the applicant’s claims were without merit   and he failed to adhere to its rules.  It contended the State Council, after investigating, upheld the complaint, leading to the expulsion. The respondent argued the applicant had sufficient information, was given an opportunity to defend himself and failed to appeal within the stipulated time.

The Chief Commissioner dismissed the applicant's claims, citing a lack of jurisdiction to award compensation under s 66(2) of the Act. The decision emphasised that the State Council had discretionary power to provide a member with legal assistance, and the applicant's expulsion rendered him ineligible. The Commission found the expulsion valid, concluding that the respondent acted within its rules, and the applicant failed to utilise available avenues for his defence and appeal.

The decision can be read here.