APPLICATION PURSUANT TO S 72A

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00057

DELIVERED : WEDNesday, 7 February 2024

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

FILE NO. : CICS 9 OF 2023

Applicant

AND

The Construction, Forestry, Mining and Energy Union of Workers

Respondent

Local Government, Racing and Cemeteries Employees Union (WA)

Intervenor

Catchwords : Industrial law (WA) - applications pursuant to s 72A - coverage of employee organisations - local government – application for intervention by peak body granted – application to vary order and directions for programming - Applications granted

Legislation : Industrial Relations Act 1979 (WA) s 27(1)(k)

Local Government Act 1995 (WA)

Result : Orders and directions issued

Representation:

Applicant Mr C Fogliani of counsel on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees

Respondent 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)

Proposed  Mr D White of counsel on behalf of the Western Australian Local

Intervenor  Government Association

Case(s) referred to in reasons:

R v Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 155 CLR 513

Re Applications by The Australian Workers’ Union, Western Australian Branch, Industrial Union of Workers and The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch (1999) 79 WAIG 2998

Reasons for Decision

COMMISSION IN COURT SESSION:

1         There are two matters before the Commission in Court Session.  The first is an application filed by the Western Australian Local Government Association under s 27(1)(k) of the Industrial Relations Act 1979 (WA) for leave to intervene in the proceedings. The second matter is the exercise by the Western Australian Municipal, Administrative, Clerical and Services Union of Employees of the liberty to apply under par (7) of the order and directions made by the Commission in Court Session on 20 December 2023.

Intervention application

2         We turn to deal with the intervention application first.  The WALGA is a body corporate established under the Local Government Act 1995 (WA).  It is and has been the peak representative body for local government entities since its establishment in December 2001.  It advocates for, and represents some 139 local governments and seven regional councils across the State.  As a part of its representative function on behalf of local government entities, the WALGA engages in industrial relations policy, legislative reform and advocacy on behalf of members, in employee relations and industrial relations matters.

3         Further, whilst the WALGA is not an organisation registered under Part II Division 4 of the Act, it has taken and takes part in high level engagement with the State Government and other parties, on behalf of the local government sector in relation to industrial relations and related matters.

4         The application made by the WALGA to seek leave to intervene in these proceedings, encompasses the matters to which we have just referred, but in addition, the WALGA also refers to proceedings in the course of 2023 before the Commission, in which it has taken part on behalf of local government employers with a recognised interest in doing so.  The WALGA contended in its grounds for application for leave to intervene, that the current proceedings will have significant implications for its members in the State industrial relations system. Accordingly, it submitted that the WALGA has, consistent with the objects of the Act in s 6, a sufficient interest to be granted leave to intervene.

5         The application for leave to intervene is not opposed by the other parties to the proceedings or the LGRCEU, as intervenor.

6         The Commission may, on application, permit a person leave to intervene, on terms as it thinks fit, if the Commission is of the opinion that the person has a sufficient interest in the matter.  The relevant principles applicable to a person’s application for leave to intervene are well settled.  As discussed in R v Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 155 CLR 513, a direct but also an indirect interest may be sufficient to warrant the grant of leave to intervene (per Gibbs CJ at 421; Mason J at 422-423).  In the circumstances, we are satisfied that WALGA should be granted leave to intervene in these proceedings.

Variation to order and directions

7         The second issue relates to a variation to the order and directions issued by the Commission in Court Session on 20 December 2023.  The relevant directions for present purposes, require the WASU and the LGRCEU to file documents they intend to rely upon in support of the applications and outlines of any evidence of persons they intend to call as witnesses, by 9 February 2024.

8         By an email of 1 February 2024, the solicitors for the WASU sought, in accordance with the liberty to apply in par (7) of the order and directions, a variation to their terms. A draft minute of proposed orders and directions submitted by the WASU, raised two things.  First, assuming that the WALGA is granted leave to intervene in the proceedings, it is proposed that it file a response to the applications by no later than 16 February 2024.  Second, that the present date of 9 February 2024, for the WASU and the LGRCEU (and the WALGA if granted leave to intervene) to file documents and outlines of evidence, be extended to no later than 15 March 2024. 

9         The LGRCEU does not object to the proposed varied directions and nor does the WALGA, if granted leave to intervene.

10      The WASU submitted that the application for the WALGA to have a reasonable time to file responses to the applications and that the WASU and the LGRCEU have a further reasonable time to consider the WALGA responses before filing their documents and outlines of evidence, was meritorious.  It was contended that the responses filed by the WALGA may have an effect on the evidence that the WASU and the LGRCEU may seek to lead at the hearing of the applications.

11      It was further submitted that the amended timetable will not prejudice the CFMEUW. The WASU contended that if the WALGA is granted leave to intervene, as the directions currently stand, it would have to be given time to file documents and outlines of evidence, after the current date of 9 February 2024.  The CFMEUW will be able to file responsive material some time later.  Accordingly, aligning the filing of documents and outlines of evidence for the WASU, the LGRCEU and the WALGA at this stage of the proceedings, will not lead to any material delay nor impose any prejudice on the CFMEUW, according to the WASU.

12      Furthermore, the WASU contended that staff absences over the Christmas and New Year period have impacted the WASU’s capacity to prepare its evidentiary material.

13      The CFMEUW opposed the WASU request on a number of bases. First, it referred to the proceedings before the Commission in Court Session in November 2023, in which it was foreshadowed that an amendment to application CICS 5 of 2023 brought by the WASU would cause delay and increase the time taken to deal with the proceedings.  Second, it was submitted that the Christmas and New Year period was considered by the Commission in the order and directions made on 20 December 2023.  Third, the prejudice identified by the CFMEUW at the hearing to consider the WASU amendment application has now materialised.  Finally, it was contended that the evidentiary case advanced by the WASU and the LGRCEU can be filed regardless of the WALGA position.

14      For these reasons, the CFMEUW contended that the proposed variations to the order and directions of 20 December 2023 should be refused.

15      We do not consider that the Christmas and New Year holiday period is a sufficient basis to seek a variation to the 20 December 2023 order and directions, given there was due allowance made for this when they issued.  However, the grant of leave to intervene to the WALGA, and its participation in the proceedings on behalf of local government employers does, in our view, constitute a ground upon which there ought to be reconsideration of the timetable concerning the filing of documents and outlines of evidence, as set out in the current order and directions.

16      We think it would be both prudent and helpful for the WALGA to file its response to the applications before the parties and the LGRCEU file their documents and outlines of evidence.  The attitudes of employers is a relevant consideration in the exercise of the Commission’s discretion under s 72A of the Act: Re Applications by The Australian Workers’ Union, Western Australian Branch, Industrial Union of Workers and The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch (1999) 79 WAIG 2998.

17      We consider that it would assist the conduct of the proceedings for the WASU and the LGRCEU to file their materials in light of the position to be stated by the WALGA in relation to the applications. Similarly, being granted leave to intervene, the WALGA should also be required to file its documents and outlines of evidence at the same time as the WASU and the LGRCEU.  As we have already mentioned, the CFMEUW will then have the opportunity to answer the cases of the WASU and the intervenors.

18      Accordingly, we are of the view that the timetable set out in the order and directions of 20 December 2023 should be varied in accordance with the liberty to apply, in the terms of the minute provided by the WASU and the LGRCEU, with the exception that the filing date for materials will be 13 March 2024, and the applications will be listed for a further directions hearing on 15 March 2024 at 9.15am.  Furthermore, the Commission in Court Session also foreshadows that it will shortly request from the parties and intervenors, an estimate of the time that the proceedings will take to hear, with a view to settling tentative listing dates.

19      Minute of proposed orders and directions now issue.