APPLICATION PURSUANT TO S 72A

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00922

DELIVERED : WEdnesday, 22 NOvmeber 2023

FILE NO. : CICS 5 OF 2023

Applicant

AND

The Construction, Forestry, Mining and Energy Union of Workers

Respondent

Local Government, Racing and Cemeteries Employees Union (WA)

Intervenor

FILE NO. : CICS 8 OF 2023

Applicant

AND

WESTERN AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES

Respondent

Local Government, Racing and Cemeteries Employees Union (WA)

Intervenor

Catchwords : Industrial law (WA) - Application to amend application under s 27(1)(l) of the Industrial Relations Act 1979 (WA) - Applications under s 72A of the Act - Respondent opposed - Amendment consistent with s 26(1)(a) of the Act - Allows all issues in dispute and the real controversy to be resolved - No demonstrated substantial prejudice - No excessive delay - Amendment granted  

Legislation : Industrial Relations Act 1979 (WA) s 6(e); s 26(1)(a); s 27(1); s 27(1)(l); s 28; s 72A; s 72A(3)
Industrial Relations Commission Regulations 2005 (WA) reg 17      

Result : Application amended

Representation:

Applicant   Mr J Blackburn SC of counsel and with him Mr C Fogliani of counsel on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees

Respondent   Mr T J Dixon of counsel and with him Mr J Nicholas of counsel on behalf of the Construction, Forestry, Mining and Energy Union of Workers

Intervenor   Mr K Trainer as agent on behalf of Local Government, Racing and Cemeteries Employees Union (WA)

Case(s) referred to in reasons:

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Attorney-General State of Western Australia v Cockburn Cement Limited and Ors (1982) 63 WAIG 6

AWU and CFMEUW [2012] WAIRC 00032; (2012) 92 WAIG 102

Gloucestershire Council v Fitch Ratings Inc (No2) [2017] FAC 248

Gordon v Commissioner of Police [2010] WAIRC 00334; (2010) 90 WAIG 645

Hospital Salaried Officers Association of Western Australia v Civil Service Association (1996) 76 WAIG 1673

Kellerman v Hansel Properties Ltd [1987] AC 189

Weldon v Neal (1887) 19 QBD 394

Reasons for Decision

COMMISSION IN COURT SESSION:

Background

1         The substantive matter in application CICS 5 of 2023 was filed on 4 April 2023 and seeks orders under s 72A of the Industrial Relations Act 1979 (WA) that the applicant has the right, to the exclusion of the respondent, to represent the industrial interests of employees in the outside workforce at the City of Rockingham.  In the alternative, the application seeks orders that the respondent does not have such rights.  The Local Government, Cemeteries, and Racecourse Employees Union is an intervenor in the proceedings, and is generally supportive of the applicant’s position.

2         For context, both the applicant and the intervenor have constitutional and industrial coverage of the outside workforce at the City of Rockingham.  The applicant initially contested the respondent’s constitutional coverage of the outside workforce at the City of Rockingham, in relation to carpenters and some employees described as ‘plant operators’ under the respondents ‘engine driver’ rule.  This is no longer the case.  It accepts there is some coverage, but not throughout all local government enterprises. 

3         The respondent opposes the substantive application and asserts that it has some industrial coverage of the affected employees, which, as noted, is now not disputed.  In its response, given the then position of the applicant, that the respondent did not have constitutional and industrial coverage of any employees at the City of Rockingham, the respondent foreshadowed an application by it under s 72A of the Act for orders to obtain such rights.

4         On 2 August 2023, the respondent filed such an application in matter CICS 8 of 2023.  In that application the respondent seeks orders that, if the Commission in Court Session determines that the respondent does not have the right to represent the industrial interests of outside employees at the City of Rockingham, it should have that right in relation to persons employed as carpenters, painters and plant operators.  Given the concession now made by the applicant in these proceedings, the status of application CICS 8 of 2023 is a matter that may require some reconsideration by the respondent. 

5         Given the issues in dispute, on 20 September 2023, the Commission in Court Session ordered that applications CICS 5 of 2023 and CICS 8 of 2023 be joined and be heard and determined together.  Additionally, the LGRCEU was granted leave to intervene in application CICS 8 of 2023.  On the same date, programming directions were made for the joined applications to be heard and determined.  These directions included the provision of requests and answers for particulars, the filing of documents and written outlines of evidence.  On 24 October 2023, the applicant filed a new application in CICS 9 of 2023, seeking orders under s 72A of the Act in respect of 145 local government bodies throughout the State.  The orders sought in application CICS 9 of 2023 are the same as those sought in application CICS 5 of 2023, but the grounds in support of the application are different.  Procedural steps are presently being undertaken by the Registrar under s 72A(3) of the Act to enable that application to be heard by the Commission in Court Session in due course.

6         The grounds of the application in CICS 9 of 2023, whilst lengthy, are in the following terms:

Grounds

2. The WASU and its counterpart Federal body, the Australian Municipal, Administrative, Clerical and Services Union (the ASU), have in Western Australia:

a. a long and distinguished history of representing local government employees including outside employees at both the enterprise and industry level.

b. a long history of award coverage in local government, including awards covering outside employees, at both the State and Federal level.

c. a long history of agreement coverage in local government at both the State and Federal level. The WASU is currently party to a large number of industrial agreements including new State instruments covering local government employees including outside employees.

3. The rules of the WASU allow it to cover all local government employees.

4. The WASU has significant membership in all areas of local government, including among outside employees.

5. The WASU has provided and has the capacity to continue to provide strong, lawful and effective representation to outside employees in local government in Western Australia.

6. The Local Government, Racing and Cemeteries Employees Union (WA) (the LGRCEU) and its counterpart Federal body, the Western Australian Shire Councils, Municipal Road Boards, Health Boards, Parks, Cemeteries and Racecourse, Public Authorities, Water Boards Union (the Federal LGRCEU), also have in Western Australia:

a. a long and distinguished history of representing outside employees in local government at both the enterprise and industry level;

b. a long history of award coverage in local government, including awards covering outside employees, at both the State and Federal level;

c. a long history of agreement coverage in local government at both the State and Federal level. The LGRCEU is currently party to a large number of industrial agreements including new State instruments covering local government employees including outside employees.

7. The rules of the LGRCEU also allow it to cover local government outside employees (excluding staff officers and clerical workers).

8. The LGRCEU also has significant membership among outside employees in local government.

9. The LGRCEU also has provided and has the capacity to continue to provide strong, lawful and effective representation to outside employees in local government in Western Australia.

10. The WASU and LGRCEU and their federal counterpart bodies have worked cooperatively together for many years representing employees in local government effectively, without unnecessary industrial disputation and in a manner which has facilitated a high degree of industrial harmony, efficiency and productivity.

11. The Construction, Forestry, Mining and Energy Union of Workers (the CFMEUW) and its Federal counterpart the Construction Forestry Maritime Mining And Energy Union (the CFMEU) have historically had in Western Australia:

a. save as set out below, very little involvement in representing outside employees in local government at either an enterprise or industry level;

b. no recent history of award coverage in local government, at either the State or Federal level;

c. a limited involvement representing a small number of employees in Federal enterprise bargaining negotiations in a small number of local governments.  The CFMEUW claims to be party to approximately 8 new State instruments covering outside employees in local government.

12. The eligibility rules of the CFMEUW do not allow it to cover all outside employees in local government. Its constitutional coverage is predominantly limited to carpenters (not painters) and some “engine drivers”. Exactly which and how many local government positions fall within the CFMEUW’s engine driver rule is unclear and could only be determined by an individual assessment of all of the duties and the primary purpose of each position.

13. The CFMEUW’s membership amongst outside employees in local government is not currently known to the applicant, however it is likely, given the limitations in its eligibility rules and the CFMEUW’s (and the CFMEU’s) limited involvement in enterprise bargaining in only a small number of local governments to date, that the CFMEUW has a comparatively small and insignificant membership among outside employees in local government.

14. The CFMEUW has recently signalled an intention to increase and has attempted to increase its membership amongst outside employees, with particular reliance on its engine driver rule.

15. If the CFMEUW is permitted to do so:

a. there is a high likelihood of demarcation disputes between the CFMEUW on the one hand and the WASU and LGRCEU on the other, given that the WASU and LGRCEU have undisputed overlapping coverage of all the positions which could be covered by the CFMEUW;

b. the likelihood of demarcation disputes will be heightened by the doubt surrounding the application of the CFMEUW’s engine driver rule and which positions in local government are covered (recognising that the nature of business operations and position descriptions can vary considerably between local governments). The CFMEUW has also shown a preparedness to sign up persons who are clearly not eligible for membership including, recently, painters at the City of Rockingham;

c. the involvement of the CFMEUW in local government workplaces is likely to lead to increased and unnecessary industrial disruption in local government, including as a result of the CFMEUW seeking to enrol members (including by poaching LGRCEU and WASU members) and as the CFMEUW’s membership grows. The CFMEUW and the CFMEU in Western Australia have a long record of industrial action and unlawful behaviour in other industries in pursuit of their demands. Notwithstanding their limited involvement in local government to date, there is recent evidence of disruptions in local government workplaces caused by the CFMEUW and/or CFMEU including at the City of Fremantle in 2020 and the City of Cockburn and the City of Wanneroo in 2023; and

d. the involvement of a third union covering the same groups of employees will complicate and slow enterprise bargaining, the more so given that State industrial agreements (unlike Federal enterprise agreements) are made with unions as party principals and not with employees.

16. It is contrary to the objects of the Act to permit a multiplicity of unions with overlapping coverage in an enterprise where it is practicable not to do so: s 6(e).

17. For the reasons set out above, including that the WASU and LGRCEU are specialist local government unions with a long history of industrial coverage, effective representation and working cooperatively with local government employers, the WASU and LGRCEU are best placed to continue to represent the industrial interests of outside employees in local government.

18. Given the CFMEUW’s limited coverage, limited membership and limited involvement in local government to date, it is highly practicable to avoid overlapping coverage by making the proposed orders. The objects of the Act will be advanced if the CFMEUW is excluded before it gains a significant foothold in local governments.

19. The proposed orders are otherwise consistent with and if granted will further the objects of the Act. In particular, the proposed orders will:

a. promote goodwill in local government enterprises (s 6(a)) as they will allow to a substantial degree the status quo of coverage and representation to remain in place, will rationalise the number of unions in the workplace, facilitate enterprise bargaining and avoid the potential for demarcation and other industrial disputes with the CFMEUW; and

b. similarly, encourage conciliation and the prevention and settlement of industrial disputes by reducing the number of unions in the workplace and excluding a union which is less attuned to dispute avoidance and resolution (ss 6(b) and (c)).

20. For the same reasons the proposed orders will have a positive effect on the operations of the employers.

21. Outside employees employed in local government who are currently eligible for membership of the CFMEUW have a greater community of interest, having regard to their work environment and core conditions of employment, with other outside employees employed in local government who are eligible to be members of the WASU and LGRCEU than with other CFMEUW members such as those employed on construction and mine sites.

22. The majority of outside employees in local government are likely to prefer that their positions continue to be covered by the WASU and/or the LGRCEU and not by the CFMEUW.

23. The majority of local government employers are also likely to prefer coverage by the WASU and LGRCEU and not by the CFMEUW including because it will substantially maintain the status quo, promote industrial harmony and reduce the risk of disputation.

24. Given its limited membership in local government to date, particularly in comparison to its total membership, the proposed orders will have a negligible impact on the CFMEUW as an organisation and cause it little disadvantage.

25. Such other grounds as are advanced at the hearing of the application.

Application to amend

7         Shortly after application CICS 9 of 2023 was filed, on 27 October 2023, an application was made by the applicant to amend CICS 5 of 2023.  The application to amend seeks to mirror the terms of the application in CICS 9 of 2023.  Additionally, the applicant seeks to vacate the directions made by the Commission in Court Session on 20 September 2023 and foreshadows seeking orders that CICS 5 of 2023, if amended, be joined and heard and determined with application CICS 9 of 2023.

8         The application to amend, whilst supported by the LGRCEU as intervenor, is opposed by the respondent. Accordingly, on 14 November 2023, the Commission in Court Session heard the application to amend. Written submissions were filed in support of and in opposition to the application to amend by the applicant and respondent respectively.

Contentions of the parties

9         In summary, the applicant submitted that the proposed amendment seeks to reflect the issues in dispute and, if made, will enable the present application and CICS 9 of 2023 to be heard together.  It was contended that at the time of the filing of CICS 5 of 2023 in April 2023, the City of Rockingham was one of the first local government employers to transition from the federal to the State industrial relations system and to engage in enterprise bargaining.

10      The applicant submitted that, as was foreshadowed in earlier directions hearings, it has always been the intention of the applicant to seek determinations from the Commission concerning the involvement of the respondent in local government entities more broadly.

11      According to the applicant, there have been developments since the present application was filed.  These include the more active involvement of the respondent in seeking to become engaged in enterprise bargaining with local government employers who are now also commencing enterprise bargaining.  At the same time, in other proceedings, the respondent became more active in recruiting employees in local government, which the applicant regards as providing an increased prospect of demarcation issues from overlapping constitutional coverage between the applicant, the LGRCEU and the respondent.  This is particularly said by the applicant to arise in relation to what the respondent refers to as ‘plant operator’ classifications, in reliance upon the ‘engine driver’ eligibility provision in its constitution rule.

12      Accordingly, the applicant contended that these developments mean that only proceeding with the present application would not resolve the broader issue of the engagement of the respondent more generally through the local government sector.

13      As to the proposed amended grounds, it was submitted that it is not the case advanced by the applicant that there is the necessity for scrutiny of all classifications within local government enterprises to determine coverage.  Rather, the applicant’s approach is to contend that there is complete coverage by the applicant and the LGRCEU of outside employees at the City of Rockingham, the respondent’s coverage of the same employees is very limited and accordingly, it is desirable, having regard to the objects of the Act, that any coverage existing by the respondent be removed, to minimise any potential for demarcation disputes caused by overlapping coverage.

14      The submission was made that this broad basis of the proposed amended claim will reflect that in application CICS 9 of 2023.  Given the common issues arising at the City of Rockingham, and the other local government authorities set out in application CICS 9 of 2023, it would be most appropriate and efficient, for the matters to be heard and determined together, and will involve less time and expense.  A further basis for the application to amend is to enable the proceedings to be dealt with expeditiously and to enable the issue of the potential enlargement of the involvement of the respondent in the local government sector, to be determined at the earliest time.

15      The LGRCEU submitted that it had no opposition to the application to amend.   Additionally, further submissions were made.  First, it was contended from the bar table that there have been disputes in the industry involving the respondent.  Whilst the submission was responsive to what is at [10] of the respondent’s submissions, we note this refers to the risk, rather than the fact, of demarcation disputation.  In the absence of evidence before the Commission in Court Session, we are unable to place weight on these submissions.  Second, regardless of this, the LGRCEU submitted that the issue of organisational coverage and representation rights has become an industry issue. Third, the LGRCEU contented that in particular, the question of the meaning of ‘plant operator’, in the context of the respondent’s rules, and the local government industry more broadly, is now problematic and uncertain. It would be in the interests of all concerned that this issue be addressed.

16      On behalf of the respondent, an overarching submission was the principal purpose of the proposed amendments is to hear and have determined, application CICS 5 of 2023 along with CICS 9 of 2023.  It was submitted that the effect of the applicant’s proposed course is to effectively ‘carve out’ the local government sector from the respondent’s eligibility rules by extending the s 72A applications to all 145 local government enterprises.  The respondent contended that s 72A of the Act enables applications to be brought in relation to a single enterprise, and not an entire industry.  The respondent maintained the applicant’s proposed course constitutes an abuse of process.

17      The effect of granting the amendment in the respondent’s submission, would be to create what it described as an ‘evidentiary circus’ because there would be a need for evidence as the assessment of eligibility for the respondent to cover relevant employees, on a single enterprise basis. The respondent submitted however, that from the applicant’s application, it was unclear as to what extent there would be such a focus and the grounds in support appeared somewhat contradictory.

18      Furthermore, it was submitted by the respondent that granting the application to amend, and hearing application CICS 5 of 2023 along with CICS 9 of 2023, would inevitably lead to delay and a significant increase in the time taken to hear the proceedings.  All of which are contrary to the requirements of the Act for the expeditious and speedy determination by the Commission of matters before it.  The respondent also contended that at the outset, the applicant indicated that it intended to ultimately seek to extend the s 72A applications to each local government, but has not explained why it now wishes to do so, after some seven months.

19      Contrary to the contentions of the applicant, the respondent submitted that the hearing of application CICS 5 of 2023 before application CICS 9 of 2023, will be a more expeditious, cost-efficient and manageable way to consider the issues.  It was submitted that once the Commission in Court Session has determined application CICS 5 of 2023, the answers to the issues posed in that application will guide the determination of the matters in application CICS 9 of 2023.  Ultimately, the respondent contended that it would be prejudiced by the granting of the application and the vacation of the existing directions.  This prejudice was contended to involve the necessity to assess in each of the 145 local government enterprises, which employees may be employed in an occupation covered by the respondent’s engine driver rule and assess the tasks concerned.  This was also put in the context of the apparent inconsistency in the applicant’s grounds of the application to amend; on the one hand foreshadowing a determination on a case-by-case basis, which positions may be covered by the respondent’s engine driver rule and on the other, that the evidence in each case will focus less on which particular positions fall within the respondent’s constitutional rule, and more on the relevant s 72A factors for consideration.

20      The respondent also submitted that the time spent preparing the matter for the City of Rockingham case will be wasted.  Given the Commission is a no cost jurisdiction, that time and expense cannot be recovered. Overall, the respondent contended that the applicant had not advanced any good reason for there to be what was described as a ‘radical’ change to its case and the application to amend should be refused.  There was, according to the respondent, also no good reason advanced by the applicant to seek to vacate the existing directions, which would also be another circumstance of prejudice to the respondent.

Consideration

21      There is no dispute as to the relevant principles concerning the Commission’s power to amend proceedings in s 27(1)(l) of the Act.  As with all powers of the Commission under the Act, an application to amend is to be considered consistent with s 26(1)(a). In a proposed amendment of the present kind, an issue for consideration is whether the amendment will allow all issues in dispute and the real controversy to be resolved:  Attorney-General State of Western Australia v Cockburn Cement Limited and Ors (1982) 63 WAIG 6 cited in Gordon v Commissioner of Police [2010] WAIRC 00334; (2010) 90 WAIG 645 per Kenner C (as he then was) at [34] – [35].  (See too: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175).

22      Additionally in these proceedings, no issue of a time limitation arises to bring into play the principles in Weldon v Neal (1887) 19 QBD 394.  The application to amend is made in accordance with the statutory right to do so under reg 17 of the Industrial Relations Commission Regulations 2005 and s 27(1)(l) of the Act.  Subject to any demonstrated substantial prejudice to the other party or other material issue such as significant delay, an amendment should be granted if it will enable the real controversy in issue to be determined: Kellerman v Hansel Properties Ltd [1987] AC 189; Gloucestershire Council v Fitch Ratings Inc (No2) [2017] FAC 248.

23      For the following reasons, which we can relatively shortly state, we consider that the application to amend should be granted.  We also consider that, consequently, the current directions issued on 20 September 2023 should be vacated.

24      While not developed in any detail in the respondent’s submissions, the issue of multiple enterprises being listed in application CICS 9 of 2023 is ultimately a matter for that application and not whether this application should be amended.  However, given that multiple enterprises were listed in the application brought by the Civil Service Association in Hospital Salaried Officers Association of Western Australia v Civil Service Association (1996) 76 WAIG 1673 without demur, and the multi-enterprise approach which was adopted in AWU and CFMEUW [2012] WAIRC 00032; (2012) 92 WAIG 102, subject to any further argument and determination on the point, this would seem to be a permissible course.

25      The real issue in dispute in these proceedings is, in our view, whether the capacity of the respondent to represent the industrial interests of relevant outside employees in the City of Rockingham, and in the other local government enterprises set out in application CICS 9 of 2023, is one consistent with the objects of the Act in s 6(e) to discourage, so far as is practical, the overlapping of eligibility for membership of the applicant, the LGRCEU and the respondent.  Apart from the process of registration of organisations and the alteration of their registered rules under the Act, the other way in which that object may be given effect is the making of orders under s 72A.

26      Given that it was apparent at an early stage in the conduct of these proceedings that the applicant had an intention to seek a determination from the Commission as to the rights of the respondent to represent the industrial interests of outside employees more broadly across local government enterprises, the question becomes which is the most efficacious means to enable that to occur?  The relevant factors to consider in a s 72A application are numerous and are not limited to existing constitutional coverage alone, although this may be an important consideration in the circumstances of a particular case.  The application of those factors will involve, to a large degree, commonality across the range of enterprises under consideration. In meeting those factors in a particular proceeding, how the parties tailor their evidentiary cases, will of course, be a matter for them.  However, detailed findings as to constitutional coverage of each classification in each enterprise under consideration is not a necessary element of the exercise of the Commission’s broad discretion under s 72A of the Act.

27      It is to be accepted that the current path of the present application in CICS 5 of 2023 has led to some months passing and steps having been taken in accordance with the existing directions.  However, we do not think that will lead to inordinate delay.  The substantive issues in the present matter have yet to be listed for hearing.  A further directions hearing after late January 2024 is expected.  It is therefore unlikely, on the current timetable, that the matter would be heard by the Commission in Court Session before later in the first half of next year. We therefore do not regard any delay occasioned by granting the application to amend as excessive. 

28      As to the question of time, resources and costs in the conduct of the matters separately or concurrently, given that it will take a considerable period to resolve CICS 5 of 2023, from its current stage, and then be followed by a much larger case in CICS 9 of 2023, we consider that the determination of all of the issues in dispute in one proceeding would be preferable.  On present indications, it may not be until well into late 2024 that CICS 9 of 2023 gets underway in a substantive sense.  All the time from now can be devoted to the preparation, hearing and determination of both sets of proceedings.

29      The question of delay and the level of uncertainty for the respondent in its capacity to represent the industrial interests of the affected employees was raised as an issue of relevant prejudice.  However, for the reasons we have just expressed, if anything, the level of uncertainty is likely to be greater for the respondent if the cases in application of CICS 5 of 2023 and CICS 9 of 2023 are dealt with consecutively. Relevant also to this issue, is the fact that even if application CICS 5 of 2023 is heard and determined first, the outcome in this matter is not of itself, a precedent for the other 145 local government enterprises the subject of application CICS 9 of 2023. Any orders made in CICS 5 of 2023 will be limited to the City of Rockingham and could not bind any other local government enterprise.  There is also the potential for industrial disruption in the meantime, from the continued overlapping coverage, the longer the present matters are unresolved.

30      For these reasons, we would make an order granting an amendment to the present application in the terms sought.  We would also make an order that the present directions be vacated.  The present application to amend, as we have outlined it above, is predicated on both applications CICS 5 of 2023 and CICS 9 of 2023 being heard and determined together.  Whilst s 72A(3) of the Act has yet to be complied with, by s 28 of the Act, the Commission’s procedural powers under s 27(1) may be exercised notwithstanding this. With that in mind, we are inclined to exercise the powers under s 27(1) to order that application CICS 5 of 2023, as it will now be amended, be joined with application CICS 9 of 2023 and that they be heard and determined together.  Any objection to this course should be the subject of written advice to the Commission in Court Session by 4 pm on Friday, 24 November 2023.

31      The parties are also directed to confer within seven days as to new directions to be made, either by consent or as determined by the Commission in Court Session.