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. 

In one of two related applications under s 66 of the Industrial Relations Act 1979, the applicant, a member of the respondent union, sought interim orders against the respondent to prevent the respondent’s Council from considering and determining a Summons to Show Cause issued to the applicant. The Summons was issued under union rules pertaining to the suspension, removal from office, and expulsion of branch officers.

Chief Commissioner Kenner identified several issues suggesting a prima facie case. The Summons failed to explain how the alleged conduct related to the applicant's office as Vice President, as required by respondent’s rules. The rule requires that the Summons state the allegations and the evidence on which they are based. However, the Summons issued to the applicant did not adequately set out how the allegations related to her position as Vice President, nor did it specify the gross misbehaviour in relation to her office. Additionally, there were concerns about bias, as key individuals involved in the allegations were also part of the decision-making process.

The balance of convenience was found to heavily favour the applicant. The potential consequences for her, including removal from office and expulsion from the union, posed a risk of irrecoverable harm. The respondent did not establish any significant harm that would result from granting the interim orders. The extensive delay in issuing the Summons and the timing of events also raised concerns about possible manipulation.

The Chief Commissioner decided that an interim order should be made in favour of the applicant. The decision was based on the principles of equity and good conscience, considering the serious potential consequences for the applicant and the issues surrounding the issuance of the Summons.

The decision can be read here. 

The applicant organisation has applied to the Commission seeking the establishment of an Interim Board of the respondent association to operate its affairs pending an application to the Registrar for deregistration. A member of the respondent association, the applicant made the application due to changes in the respondent’s rules, not reflected in its registered Rules.

The applicant contended that the respondent, an employer association for community service organisations ostensibly intended to participate in industrial relations matters, had not done so and was instead directing its focus towards funding and other issues. The application also sought the ability for members to attend General Meetings and vote remotely, and a waiver of the two-thirds majority requirement for voting to dissolve the organisation, allowing a simple majority instead.

Chief Commissioner Kenner considered that the orders sought should be made.

The decision can be read here. 

The Commission, of its own motion, initiated proceedings to vary the Shop and Warehouse (Wholesale and Retail Establishments) State Award, which was identified as an award suitable for a review of its scope.

The Commission gave notice of the proposed variations to the Award to several parties, none of whom advised the Commission of any opposition to the proposed variations. The Minister for Industrial Relations and UnionsWA each expressed their support for the variations.

The variations seek to better encapsulate the types of work the Award is intended to cover, to ensure that the Award extends to the wholesale industry generally, and to clarify that the Award does not apply to employees covered by another State award.

The decision can be read here. 

The applicant was Director of Corporate and Legal Services at the respondent local government. After being summarily dismissed from the position following an investigation into a pay banking arrangement into which he had entered, the applicant lodged claims with the Commission alleging that he was unfairly dismissed and denied contractual benefits.

The applicant argued that his intention for the pay banking arrangement was to save for retirement, noting that while the arrangement was undocumented, his reduced pay appeared on payslips, and full pay was recorded in the respondent’s records. He claimed that the investigation was inadequate and that there were no reasonable grounds for believing he had committed misconduct. He sought reinstatement, compensation for unfair dismissal, and full payment of denied benefits.

The respondent contended that the arrangement was questionable and exposed them to compliance and governance risks, including breaches of the employment contract, the Fair Work Act 2009 and the Code of Conduct. They asserted that they had reasonable grounds for believing misconduct had occurred and that the investigation was properly conducted.

Commissioner Tsang considered whether the respondent’s legal right to dismiss the applicant was exercised harshly or oppressively, concluding that the respondent had reasonable grounds for an honest and genuine belief that the applicant's conduct warranted summary dismissal. Consequently, the Commissioner dismissed the applications.

The decision can be read here.