The applicant sought an order to stay a decision of the Commission, which declared that the respondent was denied a benefit under his employment contract and was entitled to receive $10,000, pending the determination of an appeal against that decision.

Chief Commissioner Kenner raised with the parties the prospect whether an agreement could be reached whereby the monies ordered to be paid in the original decision be paid into a trust account, pending the hearing and determination of the appeal, to which the parties agreed.

As a result, the Chief Commissioner then made an order and declaration that the Commission’s order pertaining to payment be stayed pending the hearing and determination of the appeal, and that the funds be paid by the applicant into a trust account pending the same.

The decision can be read here. 

The applicant, a member of the respondent union, applied to the Commission under section 66 of the Industrial Relations Act 1979 (WA) (IR Act) seeking the establishment of an Interim Union Council for the respondent, pending the obtaining of a section 71 certificate under the IR Act.

Previously, the respondent operated under a section 71 certificate which relieved the respondent of the need to hold general elections for office bearers, as officers elected to office in the union’s federal counterpart were deemed to hold the corresponding office in the respondent. However, after alterations were made to the federal union body’s rules leading to the abolition of offices, the Registrar notified the respondent that the section 71 certificate may no longer have effect, leaving the respondent without duly elected officers.

Chief Commissioner Kenner considered the applicant's standing under s 66 of the Act and determined that the establishment of an Interim Union Council was warranted. The applicant proposed that he, along with two other elected members of the union's Committee of Management, serve as the Interim Union Council. This group would be responsible for reviewing the respondent's rules and ensuring compliance with reporting obligations, with the goal of obtaining a new s 71 certificate.

Counsel for the applicant indicated that both proposed members of the Interim Union Council consented to their roles. The Chief Commissioner found the applicant's request to be reasonable and in line with the necessary governance procedures and issued orders accordingly.

The decision can be read here. 

The applicant agency group requested the Commission to clarify the meaning of an exemption in the scope clause of the Crisis Assistance, Supported Housing Industry – Western Australian Interim Award 2011 (CASHI Award). The CASHI Award's scope is defined in clause 4.1, which adopts an industry coverage approach, referencing the crisis assistance and supported housing industry. Clause 4.2 outlines four exemptions from the scope, including services specifically for aged, infirm, physically, psychiatrically, or developmentally disabled persons, persons suffering from drug or alcohol addiction, or children under twelve years old.

The applicant posed several questions regarding the exemption, including whether "supported and/or related support services" should be read as "supported housing and/or related support services" and whether “services specifically for children under twelve years old” include those provided to such children in their own right or only incidentally to children who are dependents of adults or older youths. The core issue was the breadth of the carve-out, questioning whether an employee engaged in crisis assistance and supported housing services for children both under and over twelve years old is included in the scope or exempt.

Senior Commissioner Cosentino concluded that the phrase "supported and/or related support services" in clause 4.2(3) is nonsensical due to the omission of a word. After considering the text of the CASHI Award and its origins, the Senior Commissioner determined that the missing word is "housing" and ordered the CASHI Award to be varied accordingly. Regarding the phrase "specifically for children under the age of twelve years," the Senior Commissioner found ambiguity and concluded that the services must be intended to be provided to the specified categories of people, with the word "specifically" meaning that the services are targeted towards the described group, and not for that group solely to the exclusion of all others.

The decision can be read here. 

The applicant union filed an application to amend the Municipal Employees WA Award 2021. The application was served to 25 local government respondents and the West Australian Local Government Association (WALGA), the latter of whom represented several of the respondents in the proceedings.

During the proceedings, WALGA applied for a stay of a direction directing the organisation to file documents relating to its ‘sector survey’ concerning proposed amendments to the award. Chief Commissioner Kenner granted the stay application, pending the hearing and determination of an appeal, and directed that should the appeal be dismissed, the documents must be filed within two working days. Shortly thereafter, the appeal was dismissed.

Following the dismissal of the appeal, WALGA sought to redact certain information from the documents it produced, including personal information of local government employees and responses from non-respondent employers. The applicant objected to these redactions, arguing that the information was relevant to the proceedings and that the confidentiality directions already in place were sufficient. The Local Government, Racing and Cemeteries Union (WA) (LGREU) and several shires also objected to WALGA's application for redactions.

Commissioner Walkington determined that the Commission lacked power to vary orders made by the Chief Commissioner in stay proceedings under s 49(11) of the Industrial Relations Act 1979. Additionally, the Commissioner noted that the variations sought by WALGA were effectively a rehearing of issues previously decided, and the doctrine of res judicata precluded the Commission from rehearing these issues. The Commissioner therefore dismissed the application to vary orders.

The decision can be read here. 

In the substantive matter, the applicant union seeks that the Public Service Arbitrator (the Arbitrator) review the respondent’s decision to cease payment of paid sick leave for a member of the applicant union for a period of three months. The respondent applied to the Arbitrator for leave to be represented by legal counsel.

The applicant opposed the respondent's request to be represented by legal counsel, contending that there was no serious issue of law to be argued, and that the Arbitrator has the authority to review the decision under the Industrial Relations Act 1979. The respondent argued that the applicant's claim contravenes a 'no further claims' clause in the Western Australian Police Force Industrial Agreement 2022 and that the Arbitrator does not have the power to order the relief sought by the applicant. The respondent thus contended that the Arbitrator would benefit from the appearance of counsel due to the legal questions raised.

The Arbitrator determined that the respondent’s arguments regarding the ‘no further claims’ clause, the Arbitrator’s powers, and jurisdictional issues do raise substantial legal questions which would benefit from the appearance of legal counsel. Consequently, the Arbitrator granted leave for the respondent to be represented by a legal practitioner.

 The decision can be read here.