The Full Bench has dismissed an appeal against an Industrial Magistrates Court decision which had found the respondent was made redundant and had ordered that the appellants pay severance pay.

Background

The appellants were a steel manufacturing partnership, of which the respondent was Chief Executive Officer. In 2020, the appellants informed the respondent they could not afford his $250,000 remuneration, and that his employment would be terminated unless he accepted a reduction. The respondent did not agree and was sent a termination letter.

The respondent commenced an Industrial Magistrates Court claim alleging contravention of the Commission’s termination, change and redundancy General Order in  [2005] WAIRC 01715; (2005) 85 WAIG 1681.

The Industrial Magistrate held that the respondent was made redundant. The appellants appealed to the Full Bench under s 84 of the Industrial Relations Act 1979 (WA) (‘IR Act’). The appellants sought to challenge the redundancy conclusion, to quash the decision, and set aside its orders.

Contentions

The appellants contended that the Industrial Magistrate erred in her findings in various matters of fact and law. The appellants contended that if the Managing Partner took over responsibility for the CEO position, the appellants had not decided that they no longer wished the job to be done by the respondent or anyone. The appellants further contended that a CEO position cannot be made redundant, unless wound up businesses requires this position.

The appellants also contended that the Industrial Magistrate erred in relying on Bampton v Viterra Limited [2015] SASCFC 87 and the cases within was an error, as they applied where redundancy obligations were not defined by any industrial instrument, and that the decision in UGL Rail Services Pty Ltd v Janik [2014] NSWCA 436 (‘UGL’) should instead be followed.

The respondent contended that there were no errors of law in the decision at first instance and contended that the job of the CEO was no longer required, as restructuring meant work previously performed by the respondent was performed by the Managing Partner and an external consultant.

Findings

The Full Bench considered the history and context of the redundancy General Order; and the broader principles surrounding redundancy.

The Full Bench found the evidence did not support a conclusion that the appellants wished to keep the respondent in his job. The Full Bench found the dismissal was in prospect if the respondent did not accept lower remuneration offered. The Full Bench found the respondent was dismissed on financial grounds, that a definite decision had been made and that this was communicated unequivocally.

The Full Bench noted the appellants’ advanced no authority or principle to support the impossibility of a CEO being made redundant, and that was never contended at first instance. The Full Bench noted that except in limited circumstances, a point not raised in proceedings cannot be raised for the first time on appeal. The Full Bench found it was not in the interests of justice to permit raising the point on appeal for the first time and noted that it was not persuaded it had merit. The Full Bench considered that the appellants were entitled to terminate and abolish the CEO position, noting that there is no requirement for a partnership to have a CEO as decision maker.

The Full Bench found UGL could be distinguished factually and because its redundancy provision involved an undefined common law contract term.

The Full Bench found cl 4.1 of the General Order must be construed faithfully to its text, with the definition of redundancy being broad and informed by its industrial history and context, and breadth of meaning. The Full Bench noted that the termination resulted from the decision to cease having a CEO due to financial constraints, and at this time, the position no longer existed. The Full Bench found that as the position no longer existed, and the respondent had no duties to perform, that he was redundant under cl 4.1 of the General Order.

The Full Bench found on the evidence the Industrial Magistrate’s findings were open and the only ones reasonably open. The Full Bench found no error in the decision of the Industrial Magistrate and dismissed the appeal.

The decision can be read here.

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.

The Industrial Appeal Court has dismissed an appeal against a decision of the Full Bench in relation to jurisdiction and ordered the appellant to pay the respondent’s costs of the appeal fixed at $3,000.

Background

The appellant lodged a claim in the Industrial Magistrates Court, alleging that the respondent failed to comply with the National Employment Standards and the Professional Employees Award 2010 (Cth). The Industrial Magistrates Court dismissed the claim, finding it an attempt to relitigate matters determined, or ought reasonably to have been raised, in two previous claims.

The appellant appealed to the Full Bench, contending omissions in the strike out application and that the Industrial Magistrate’s Court did not abandon or release the respondent from all claims. The Full Bench dismissed the appeal for want of jurisdiction on grounds that the Industrial Magistrate exercised Federal jurisdiction under a Federal award and the Fair Work Act 2009 (Cth) (FW Act), and ordered the appellant pay $5,150 in costs.

The appellant appealed the decision of the Full Bench to the Industrial Appeal Court.

Contentions

The appellant contended that he had been denied the right to be heard by refusing to hear submissions about a flawed affidavit in the respondent’s strike out application. The appellant contended that the Full Bench failed to hear the appellant’s submissions about the strike out application’s jurisdictional exercise arguments.

The appellant further submitted that the decision was erroneous in law due to errors in the construction and interpretation of the law. This concerned whether the Industrial Magistrate was exercising a State law by striking out the claim on grounds of abuse of process and Full Bench power to award costs.

The respondent sought $5,150 in costs for the appeal, the same amount awarded by the Full Bench.

Findings

The Industrial Appeal Court considered the legal principles relating to procedural fairness and found that the first ground was not made out. The Industrial Appeal Court noted issues as to whether the relied upon affidavit was defective and whether the appellant’s Industrial Magistrates Court claims were different. The Industrial Appeal Court found the Full Bench could only consider and adjudicate the merits of the appellant’s arguments on these issues if satisfied it had jurisdiction, which it was not.

The Industrial Appeal Court considered that the Full Bench did not err in finding that the Industrial Magistrates Court exercised Federal jurisdiction under s 539 of the FW Act, and that the Full Bench did not have jurisdiction. The Industrial Appeal Court found the resolution of a matter within Federal jurisdiction by application of non-federal procedural law is solely within Federal jurisdiction.

The Industrial Appeal Court noted that the Full Bench correctly construed its power to award costs in an appeal under s 84(5) of the IR Act.

The Industrial Appeal Court found no appeal could lie to the Full Bench, as the Full Bench appeal was against an Industrial Magistrate’s decision for enforcement of a Commonwealth law and instruments made under a Commonwealth law. The Industrial Appeal Court found that the appeal was manifestly groundless, and the applicant was aware of the incorrect jurisdiction. The Industrial Appeal Court dismissed the appeal and ordered the appellant pay the costs of the appeal fixed at $3,000, noting that less preparation would have been required by the respondent’s counsel in the present appeal.

The decision can be read here.

The Chief Commissioner has waived a Union rule pertaining to the timetabling of elections for office bearers, ordering that the rule be complied with by a later date. In making orders, the Chief Commissioner dismissed an application from a member of the Union and the Registrar of the Commission to intervene in the matter.

Background

The applicant was a member of the respondent union. The respondent was an organisation registered under Division 4 of Part II of the Industrial Relations Act 1979 (WA) (‘IR Act’).

Rule 20 of the respondent’s rules related to the timetable for elections of office bearers and when due required that they be conducted between 1 July and 31 August. An election was due in 2022, however an election was not conducted within the prescribed period.

Contentions

The applicant brought an application under s 66(1)(a) of the IR Act for a waiver of rule 20 of the respondent’s Rules. The respondent did not oppose this application.

Applications to Intervene

A member of the respondent who intended to stand as an election candidate and the Registrar of the Commission each applied for leave to intervene in the proceedings under s 27(1)(k) of IR Act.

The member applying to intervene contended an election delay would mean existing officeholders would continue in office and make decisions affecting members, and that there was information the applicant was privy to relevant to their re-election, but that had not been received by members.

The respondent opposed the member’s intervening application. The respondent contended that; the member, though eligible to nominate, was not a candidate as the election had not commenced, and that they had no direct interest in the proceedings beyond any other member according to R v Ludeke; Ex parte Customs Officers Association of Australia (1985) 155 CLR 513.. The respondent submitted that all members would be informed regarding the timetable and nomination forms when the Electoral Commission provided that information. The respondent contended that granting the application would interfere with and slow elections when both parties were trying to expedite it.

The Registrar’s intervention application sought an order to the effect that existing officeholders not make any significant decisions binding the respondent beyond 30 September 2022, except those reasonably necessary to enable day to day running of the respondent. The Registrar contended this was to ensure that those remaining in office for any extended time ordered by the Commission do not take any advantage of this. The Registrar contended the order was consistent with the objects of the IR Act, particularly s 6(f) concerning democratic control of organisations and member participation.

The respondent opposed the Registrar’s application  noting that limited time to brief the respondent’s new secretary and consult with the respondent’s Council created difficulty.

Findings

The Chief Commissioner found the applicant had standing to bring the application and noted the application was not opposed by the respondent. The Commission found the Registrar had a sufficient interest for the purposes of 27(1)(k), and had standing, given the functions and powers conferred by s 66 of the IR Act. 

The Chief Commissioner found that the member seeking to intervene had not established a sufficient interest. The Chief Commissioern found the member did not have a direct interest in the outcome of the proceedings rather than merely being affected by them. The Commission noted it did not place much weight on the consideration that granting the application would delay the election process. 

The Chief Commissioner did not issue the order sought by the Registrar, considering its terms and possible impact on the members of the union, their legitimate interest in being heard, and whether the matters could be heard later, to enable fulsome argument and consideration, without unduly delaying the matter. The Chief Commissioner noted that the proposed order sought was a novel one, and there was no reason it could not be subject to a separate application. Given this was the basis for the Registrar’s application to intervene, the application was refused. 

Chief Commissioner noted that s 66 must be applied consistently with the objects of the Act, in particular encouraging democratic control of registered organisations and full member participation. The Chief Commissioner noted a crucial means by which this object is achieved is free, fair, and timely elections for officeholders. 

 Noting that s 66(2) of the IR Act confers a broad power on the Chief Commissioner to make such orders in relation to organisational rules the Chief Commissioner ordered the requirement to hold the election between 1 July and 31 August be waived, but that the election conducted and concluded by 30 November 2022. The Chief Commissioner ordered that until the Returning Officer declared the election result, the current office holders would be deemed to continue holding office and have authority to exercise their powers, duties, and functions. 

The decision can be read here.

The Commission has dismissed a claim under s 27(1)(a) of the Industrial Relations Act 1979 (WA) (IR Act) finding that the applicant did not take any steps or intend to prosecute their claim.

Background

The applicant filed an application pursuant to s 29(1)(c) of the IR Act. The Commission understood that at a conciliation conference in May 2022, the matter was resolved and a Form 1A – Notice of Discontinuance was sent to the applicant.

The applicant did not file the Notice of Discontinuance, and did not respond to two further emails. The applicant was contacted by telephone on 21 June 2022, and she indicated that she was unwell, had not completed the form, and requested another one, which was sent.

On 29 June 2022, the Commission contacted the parties, noting that the form had not been filed and attaching a Notice of Hearing listing the matter for a directions.. The applicant failed to appear at the directions hearing or answer calls that day. It was ordered that a further hearing be listed for the applicant to show cause why the application should not be dismissed.

The applicant was sent a copy of the orders with a Notice of Hearing, and on 14 July the directions hearing transcript. She apologised for the delay and asked for a copy of the form to close the matter, which was sent on the same day.

On 22 July, the applicant was again contacted, noting the form had not been filed, requesting an update, and confirming the show cause hearing was listed for 26 July 2022.

Contentions

The applicant did not communicate further, file the form, or appear at the hearing on 26 July 2022.

Findings

The Commission found that the applicant had no intention of continuing, progressing or prosecuting their claim. The Commission noted the applicant’s general lack of any engagement with the Commission and their statement in their last email concerning having the matter closed.

The Commission noted that it can dismiss any matter before it at any stage of the proceedings if satisfied by the requirements in s 27(1)(a) of the IR Act.

The Commission reiterated that it is not in the public interest that matters not be expeditiously dealt with. The Commission noted that it is the interests of parties and the public that matters before the Commission be resolved as efficiently as the justice of the case requires.

The Commission noted that if the applicant intended to progress their application, they had not done so with the necessary assiduity, promptness, or diligence. The Commission noted that as a result both the respondent and the Commission had incurred unnecessary expense in attempting resolve the matter, that the situation was prejudicial to the respondent, and against the public interest.

The Commission found that the applicant had not taken any, or the appropriate, steps to prosecute their claim and that they did not intend to prosecute their claim. The Commission ordered that the application be dismissed.

The decision can be read here.