DISPUTE RE REDUNDANCY PAYMENT AND AUTHORITY OF UNION TO ACT AS AN AUTHORITSED REPRESENTATIVE OF EMPLOYEE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00803

DELIVERED : MONday, 9 September 2024

FILE NO. : CR 29 OF 2023

Applicant

AND

City of Stirling

Respondent

Catchwords : Industrial law (WA) – Redundancy – Suitable Alternate Employment – Severance Payment – Arbitral Power – Judicial Power

Legislation : Industrial Relations Act 1979 (WA)

  Fair Work Act 2009 (Cth)     

Result : Findings made

Representation:

Applicant : Mr R Knox

Respondent : Ms Groves (of counsel)

Case(s) referred to in reasons:

Australian Chamber of Manufacturers and Derole Nominees Pty Ltd – Clothing Trades Award 1982(1) [1990] 140 IR 123

Australia Limited t/a Alliance Catering [2016] FWC 4505

Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australia Branch v Eurest (Australia) Pty Ltd [2003] 83 WAIG 4157

Broadlex Services Pty Ltd v United Worker’ Union [2020] FCA; 296 IR 425

Cranswick v Burswood Resort (Management) Limited [2003] 84 WAIG 887

Crewe and Sons Pty Ltd v AMWSU (1989) 69 WAIG 2623

St Michael’s School v The Independent Schools Salaried Officers’ Association of Western Australia, Industrial Union of Workers [2000] 80 WAIG 2839

The Civil Service Association of Western Australia Incorporates v Director General as the Employing Authority, Department of Justice [2023] 104 WAIG 11

United Voice WA v The Director General, Department of Education (2015) 95 WAIG 13

United Voice WA v The Minister for Health in His Incorporated Capacity Under s.7 of the Hospitals and Health Services Act 1927 as the Hospitals Formerly Comprised in the Metropolitan Health Service Board [2012] 93 WAIG 261

Reasons for Decision

Introduction

1         The Western Australian Municipal, Administrative, Clerical and Services Union of Employees (Union) applied pursuant to s 44 of the Industrial Relations Act 1979 (WA) (the IR Act) for assistance to resolve a dispute with the City of Stirling (City) concerning the eligibility of their member for a severance payment in circumstances where their member’s job had been abolished.

2         Following a compulsory conference before the Western Australian Industrial Relations Commission (the Commission), the dispute between the parties remained unresolved. The issues in dispute were referred for hearing and determination under s 44(9) of the IR Act:

‘Where… any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.’

3         The s 44(9) memorandum of referral, in this matter drafted and agreed between the parties, sets out the questions to be answered:

Entitlement to redundancy payment

1.  Is the role of Community Patrol Officer, suitable alternative employment under cl 10.4 of the City of Stirling Inside Workforce Agreement 2019?

2.  If the answer to question 1 is ‘yes’, is Ms Cerinich entitled to:

a) reject an offer of suitable alternative employment made under cl 10.4 of the City of Stirling Inside Workforce Agreement 2019; and

b) be paid a redundancy payment under cl 10.7 of the City of Stirling Inside Workforce Agreement 2019?

3. If the answers to question 2 is ‘yes’, does section 80BE(2) of the Industrial Relations Act 1979 (WA) apply so as to give the Western Australian Industrial Relations Commission the power under cl 10.7.5 of the City of Stirling Inside Workforce Agreement 2019 to vary the applicable redundancy package the Respondent is required to pay to Ms Cerinich under clause 10.7.1?

4.  If the answer to question 1 is ‘no’, is Ms Cerinich entitled to a redundancy payment under clause 10.7 of the City of Stirling Inside Workforce Agreement 2019?

Application of cl 6

5. During what period did cl 6 of City of Stirling Inside Workforce Agreement 2019 apply to Ms Cerinich as an employee affected by the Respondent’s decision to restructure the Respondent’s Community Safety Business Unit?

Appointment of representative under cl 6.7

6. Was Mr Knox appointed as Ms Cerinich’s representative pursuant to cl 6.7 of the City of Stirling Inside Workforce Agreement 2019 and if so, from when?

Rights of representative under cl 6.7

7. What rights, if any, does Mr Knox have as Ms Cerinich’s representative under cl 6.7 of the City of Stirling Inside Workforce Agreement 2019?

8. Did the Respondent interfere with, impair or prevent Ms Cerinich from exercising her right to be represented under cl 6.7 of the City of Stirling Inside Workforce Agreement 2019?

Other rights relating to representation of Ms Cerinich

9. If Mr Knox was not at any time appointed as Ms Cerinich’s representative under cl 6.7 of the City of Stirling Inside Workforce Agreement 2019, did the Western Australian Municipal, Administrative, Clerical and Services Union of Employees have a right under the City of Stirling Inside Workforce Agreement 2019 and/or the Industrial Relations Act 1979 (WA) to represent the interests of Ms Cerinich to the Respondent in this matter?

10.  If the answer to question 9 is ‘yes’, did the Respondent interfere with, impair or prevent the Western Australian Municipal, Administrative, Clerical and Services Union of Employees or Ms Cerinich from exercising that right?

Evidence and Facts

4         The parties agreed on the facts as follows and the relevant documents referred to were submitted as a bundle of agreed documents.

5              Ms Cerinich commenced employment with the City on or around 3 February 2014 as a Parking and Information Officer (P&I Officer). The relevant contract of employment is dated 22 January 2014, and a copy was submitted along with the position description for the role of P&I Officer reviewed and modified in October 2017.

6              As a P&I Officer, Ms Cerinich was part of the Parking Services team within the Community Safety Business Unit (Community Safety BU), which was part of the broader Community Development directorate of the city.

7              Ms Cerinich is a financial member of the Union and eligible to be a member of the Union under rule 5 of the Rules of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees.

8              At all times relevant to this matter, the City of Stirling Inside Workforce Agreement 2019 (2019 Agreement) applied to Ms Cerinich. The 2019 Agreement is a new State instrument under s 80BB of the IR Act.

9              In early-2023 the City made a decision to restructure the Community Safety BU to streamline services and deliver efficiencies across various teams.

10      In accordance with its obligations under cl 6 of the 2019 Agreement, the City advised the employees that were to be affected by the City's decision to restructure the Community Safety BU (Affected Employees). The Affected Employees were invited to attend a meeting at which the restructure would be discussed. This advice and invitation to attend a meeting was provided to Ms Cerinich.

11      The City also advised Mr Paul Cecchini, a Senior Industrial Organiser of the Union, of the proposed restructure on or around 16 February 2023.

12      As part of the restructure, the Parking Services team would cease as a team and the position of P&I Officer, in which Ms Cerinich was employed as, was to be abolished. The abolition of the P&I Officer position affected four (4) employees who were employed as P&I Officers in the Parking Services Team.

13      As Ms Cerinich was on parental leave (having commenced that period of parental leave on 8 December 2022) at the time that the restructure was advised to the Affected Employees, the City contacted Ms Cerinich by e-mail to arrange a time that was convenient to meet to discuss the City's decision to restructure the Community Safety Business Unit.

14      A member of the Human Resources Business Partner and the Manager of the Community Safety business unit met with Ms Cerinich on 22 March 2023. Ms Cerinich attended the meeting alone. Ms Cerinich did not indicate in writing or otherwise that she wanted to appoint a representative under clause 6.7 of the 2019 Agreement.

15      During the meeting, the City advised Ms Cerinich of its decision to restructure the Community Safety BU and that because of that decision, the role of P&I Officer would change and become the role of Ranger. Ms Cerinich was advised that employees who were employed in a P&I Officer role would each be offered suitable alternative employment at the City as a Ranger. Ms Cerinich raised concerns about performing the role of Ranger.

16      Following the meeting, the City e-mailed Ms Cerinich thanking her for attending the meeting and provided her with the position description for the Ranger role and attached to the e-mail and copies were submitted to the Commission:

a) the position description for the Ranger position;

b) a copy of the proposed structure of the Community Safety business unit post­ restructure;

c) a contract of employment in the position of Ranger; and

d) a casual and additional hours timesheet (so Ms Cerinich could claim and be re-imbursed for her time in attending the meeting).

17           On 29 March 2023, Ms Cerinich e-mailed the City about the Ranger role and stated that the 'only viable option' was for the City to terminate her employment on redundancy grounds.

18      Having considered Ms Cerinich's e-mail of 29 March 2023, on 31 March 2023 (at 9.38am) Mr Mullins replied by e-mail to Ms Cerinich.

19      Also, on 31 March 2023 (at 1:41pm), Mr Mullins sent an e-mail to all employees of the Community Safety BU outlining the new structure of the business unit that was to take effect from 3 April 2023.

20      Later in the day of 31 March 2023 (at 2:48pm), Ms Baker e-mailed Ms Cerinich again with the contract of employment for the position of Ranger, the outcome letter that had already been provided to Ms Cerinich on 29 March 2023, and the position description for the role of Ranger. In the e-mail, Ms Baker requested that Ms Cerinich return a signed copy of the contract of employment for the position of Ranger by 'close of business' Monday 3 April 2023.

21      On 3 April 2023, the Union wrote to the City for the first time about Ms Cerinich.

22      On 21 April 2023, Ms Baker e-mailed Ms Cerinich and Mr Robert Knox (the Industrial Officer of the Union representing Ms Cerinich) inviting both of them to attend a meeting on 28 April 2023 to discuss Ms Cerinich's redundancy matter.

23      Mr Knox responded to Ms Baker's e-mail on 21 April 2023, asking for the meeting to be moved to 26 April 2023 because of Ms Cerinich's difficulties in arranging care of her children. Mr Knox stated that he would be attending this meeting as Ms Cerinich's union representative.

24      Ms Baker responded to Mr Knox's reply e-mail on 24 April 2023 proposing the meeting be held on 1 May 2023 as 26 April 2023 was a day that Ms Baker and Mr Mullins were unavailable.

25      Mr Knox replied to Ms Baker's e-mail on 24 April 2023 proposing the meeting be held on that Friday 28 April 2023.

26      Ms Baker telephoned Ms Cerinich on 24 April 2023 to arrange a meeting date and time.

27      Ms Baker then e-mailed Mr Knox and Ms Cerinich on 24 April 2023 confirming the date, time and location of the meeting to discuss Ms Cerinich's redundancy matter.

28      Ms Cerinich, Mr Knox on behalf of the Union, and the City attended the meeting on 1 May 2023. Ms Baker and Mr Michael Quirk (Director of the Community Development directorate) attended the meeting on behalf of the City. The discussion between the attendees included the following:

a) the attendees agreed that further opportunities for redeployment could be explored;

b) the City considered the redeployment period could remain open until Ms Cerinich was due to return to her work from parental leave in 2024;

c) Mr Knox suggested that Ms Cerinich could provide the City with a list of her preferences for other roles with the City. The City agreed that it would consider Ms Cerinich's preferences but could not guarantee that those preferences could be accommodated; and

d) Mr Knox stated that he would continue to be involved in the matter acting as Ms Cerinich's "representative" to which Ms Baker said "support person."

29      On 1 May 2023, Ms Cerinich provided to the City by e-mail an outline of her preferences for employment and other factors that would affect her decision.

30      The City then requested by e-mail that Ms Cerinich provide her curriculum vitae.

31      Ms Cerinich provided the City with her curriculum vitae by e-mail on 12 May 2023.

32      On 12 May 2023, the City provided by e-mail to Ms Cerinich position descriptions for the following three roles that the City considered were redeployment opportunities:

a) Customer Experience Officer;

b) Senior Customer Service Officer; and

c) Library Officer.

33      On 18 May 2023, Mr Knox e-mailed the City to communicate Ms Cerinich's response to the three (3) redeployment opportunities.

34      On 2 June 2023, the City e-mailed Ms Cerinich and Mr Knox in relation to another two (2) roles, namely the roles of Community Patrol Officer and Engagement Officer. The position descriptions for these roles were attached to the e-mail.

35      On 9 June 2023, Mr Knox e-mailed the City to communicate Ms Cerinich's position about the further two (2) positions that had been presented to Ms Cerinich.

36      On 30 June 2023, the City replied to the e-mail sent by Mr Knox. Attached to that e-mail was a comparison undertaken by the City of the P&I Officer role, the Community Patrol Officer role and the Ranger role.

Question 1: Is the role of Community Patrol Officer Suitable Alternative Employment?

37      The first question the parties seek an answer to is:

‘Is the role of Community Patrol Officer, suitable alternative employment under cl 10.4.2 of the City of Stirling Inside Workforce Agreement 2019?’

38      Clause 10.4.2 of the City of Stirling Inside Workforce Agreement 2019 (2019 Agreement) states:

‘Suitable alternative employment refers to a position of similar classification, salary and status to the employee’s former role. The employee’s skills, qualifications, abilities and experience may also be considered with regard to the requirements of the position. And the practicality and cost of any retraining requirements.’

39      The Union says that where an industrial agreement or award provides that the test is conducted on the basis of what is ‘suitable alternative employment’ it has been accepted by the Commission that the test is an objective one and refers the Commission to United Voice WA v The Minister for Health in His Incorporated Capacity Under s.7 of the Hospitals and Health Services Act 1927 as the Hospitals Formerly Comprised in the Metropolitan Health Service Board [2012] 93 WAIG 261, 264 [32] (Kenner C) (United Voice); Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australia Branch v Eurest (Australia) Pty Ltd [2003] 83 WAIG 4157, 4160 [24] (Harrison C) (Eurest); Cranswick v Burswood Resort (Management) Limited [2003] 84 WAIG 887, 896 [80] (Harrison C) (Cranswick).

40      The City agrees that the test to apply when assessing whether an alternate position is ‘suitable alternative employment is an objective one.’

41      I find that the test to be conducted in assessing whether an alternative position is ‘suitable alternative employment’ under The City of Stirling Inside Workforce Agreement 2019 (2019 Agreement) is an objective one. That is, an employee is not able to reject an alternative employment opportunity on an unreasonable basis as set out by the Full Bench of the Australian Industrial Relations Commission in Australian Chamber of Manufacturers and Derole Nominees Pty Ltd – Clothing Trades Award 1982(1) [1990] 140 IR 123 (Derole Nominees) at [30]-[31]:

‘What constitutes “acceptable alternative employment” is a matter to be determined, as we have said, on an objective basis. Alternative employment accepted by the employee (and its corollary, alternative employment acceptable to the employee) cannot be an appropriate application of the words because that meaning would give an employee an unreasonable and uncontrollable opportunity to reject the new employment in order to receive redundancy pay; the exemption provision would be without practical effect.’

42      The Union says that the role of a Community Patrol Officer (CP Officer) is not ‘suitable alternative employment’ because it is ‘extraordinarily different’ from that of the P&I Officer role. The Union asserts that the P&I Officer was concerned with completing parking patrols during the day and enforcing the Shire’s parking laws by issuing infringements. In contrast to the limited duties of the P&I Officer, the Union contends, the CP Officer role undertakes a diverse array of duties addressing anti-social and criminal behaviour during the day and at night, providing security for the City’s buildings and infrastructure and performing Ranger duties outside of the Ranger teams operating hours when called upon.

43      The City submits that the role of Community Patrol Officer is suitable alternative employment to that of P&I Officer because the two roles are similar in classification, salary and status.

What are the Factors to Consider in an Assessment of ‘Suitable Alternative Employment’?

44      The Union contends that the assessment when deciding whether a position is ‘suitable alternative employment’ includes the factors listed in cl 10.4.2 of the 2019 Agreement but is not limited to those factors. Consideration of other factors is permitted consistent with the tests applied by the Fair Work Commission.

45      The Union submits that ‘suitable alternative employment’ has the same meaning as ‘acceptable alternative employment’ in the Fair Work Act 2009 (Cth) (FW Act) and says that the tests adopted by the Fair Work Commission to assess ‘other acceptable employment’ ought to be adopted by the Commission to assess ‘suitable alternative employment.’

46      The Union further submits that cl 10.4.2 is not an exhaustive list because the text of cl 10.4.2 uses the term ‘refers’ which has the effect of:

a) Evincing an intention that clause 10.4.2 is non exhaustive because the definition of ‘refer’ in the Macquarie Dictionary (online 30 August 2023) is ‘to direct attention to or thoughts of’ and merely directs attention to the factors listed in clause 10.4.2;

b) The use of refer and not ‘means’ is important because the use of the term ‘mean’ in a statutory content, citing Dennis Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019 265 [6.5]), would evince an intention for clause 10.4.2. to be exhaustive.

c) Clause 10.4.2 was made under a legislative scheme provided by the FW Act and when clause 10.4.2 is considered in the context of the decisions of the Fair Work Commission the term ‘other acceptable employment’ is not confined nor exhaustive and turns on the facts of a matter. The Union refers the Commission to the factors set out in Spotless Services Australia Limited t/a Alliance Catering [2016] FWC 4505, 18 [64] (Alliance Catering):

i) Rate of pay

ii) Hours of work

iii) Work location

iv) Seniority

v) Fringe benefits

vi) Workload

vii) Job security

viii) Continuity of service

ix) Accrual of benefits

x) Probationary periods

xi) Carer’s responsibilities; and

xii) Family circumstances.

d) The second sentence in clause 10.4.2 uses ‘may also’ which tends to indicate the factors listed in the clause are not exhaustive and other factors may be considered.

47      The City disagrees with the Union and says that it is only the matters listed in cl 10.4.2 of the 2019 Agreement that are to be considered in this matter because;

(i) clause 10.4.2 is clear and unambiguous and it is not necessary (or is it permissible) to look beyond the clause to discern the intention of the parties or the clause's meaning; and

(ii) if the parties to the Agreement wanted to list other factors that should be taken into account when assessing whether a position is suitable alternative employment for the purposes of clause 10, they would have included those factors in clause 10.4.2 and they did not.

48      The City submits that this matter is an application made under s 44 of the IR Act and that matters referred for hearing and determination under s 44 (9) do not include determining the meaning of cl 10.4.2 and says to do so is impermissible given an application to interpret a clause in an industrial agreement must be made under s 46 of the IR Act.

49      The City disagrees with the Union’s contention that ‘statutory context’ is a relevant consideration because the industrial agreement is not statute.

50      The City contends that there is no basis for the Union to assert that the factors listed in cl 10.4.2 are just ‘illustrative’ and that the word ‘includes’ can be substituted for the word ‘refers.’ The City submits that to adopt this submission would be to re-write a clear and unambiguous provision.

Consideration

51      The Memorandum sets out the questions that are to be answered. The first question relates to the assessment of the role of the Community Patrol Officer under clause 10.4.2 of the Agreement. The task is for the Commission to decide if the role is suitable alternative employment under cl 10.4.2 of the Agreement.

52      Therefore, the place to start is with the text of the clause and the factors listed within the clause. These factors are whether the position is a similar classification, salary and status to the employee’s former position. The employee’s skills, qualifications, abilities and experience may also be considered regarding the requirements of the position and the practicality and cost of any retraining requirements.

Classification, Salary and Status

53      The CP Officer is classified at Level 5 whereas the P&I Officer is Level 4. The Union contends that the difference in classification reflects important and significant differences in the duties, qualifications, skills, abilities and experience requirements between the two positions. The Union says the CP Officer is not a similar classification.

54      The City says the CP Officer Level 5 role has a similar classification to the Parking and Information Officer Level 4 role and that the CP Officer has a similar salary, albeit higher salary and the two positions have a similar status because they are both roles in the Community Safety Business Unit and report to the Senior Community Patrol Officer. The City says the role of CP Officer Level 5 does not need to be the same, rather it just has to be similar.

55      The classification of positions and roles reflect the differences in the work value of the various roles in an organisation. The differences result from the duties, the qualifications required to undertake the duties, and the skills, abilities and experience possessed by the employee necessary to undertake the duties of the role. The classification is a result on the assessment of the value, and differences in value, between the various roles in the organisation.

56      In this matter, there is no evidence of a classification assessment of the relevant positions having been conducted. The difference in the classification of the two roles appears to reflect differences in the elements of the roles set out in the Position Descriptions of the two roles: Position Overview, Position Objectives, Qualification/Education Level, and Knowledge, Skills and Experience, and Other.

57      In respect of the Position Overview, the Parking & Information Officer role is described as one that carries out parking patrols with a view to gaining high level and fair compliance with the City’s laws and regulations concerning parking. This is achieved with consistent interpretation and application of the City’s local parking law, relevant legislation, policies, guidelines, and instructions. The role also provides accurate and timely parking related information to the public to assist them locate convenient parking available at the time required. The Position Overview for the role of a CPO is described as one that undertakes community safety patrol services (7 days a week, 24 hours a day) to deliver on the City’s strategic plan objective concerning working with the community to create a safer City. The role is to deliver a visible and responsive patrol service that is engaging within the community, intelligence driven and proactive to the demands of the evolving customer. The role administers and enforces the various relevant acts, regulations and local laws where required and provides excellent customer service to both external and internal customers regarding community safety matters. The position of CPO is placed in the context of the City’s statement that it will be a leader in community safety, addressing crime and antisocial behaviour and working with the community to make people who visit and work in the City feel safer.

58      In respect of the Position Objectives, the P&I position needs to maintain a highly visible presence while undertaking parking patrols to encourage and achieve a high level of compliance with parking restrictions and to deter anti-social behaviour. The CPO’s Position Objectives requires the attendance at complaints and action to resolve the complaints or referral where necessary. The CPO patrols designated areas to identify and report on issues of concern including suspicious activities, damage and faults, graffiti and obstructions.

59      The CPO attends to building alarms and specified incidences and liaise and assist Western Australian Police as required. Outside of core hours the CPO assists with Ranger related services.

60      It is my assessment that the Position Overviews of the two positions are not similar. The P&I has a specific and limited focus to that of enforcing parking rules and regulations whereas the CPO has a broader focus covering a range of unspecified but various laws, rules and regulations. The CPO position is directed toward addressing crime and antisocial behaviour and is to be visible and responsive and must anticipate the actions or activities of the City’s customers. The CPO role involves interaction with people in a greater variety of situations and more challenging circumstances. It is my assessment that the scope and responsibilities of the P&I are less than those of the CPO.

61      With respect to qualifications and education, I find that the two positions are not similar. The P&I role did not require any qualifications nor specific certifications. Whereas the CPO role requires a Certificate II in Security Operations, a WA Security Officers Licence and a WA Crowd Controllers Licence.

62      In respect of Knowledge, Skills and Experience, the P&I role requires the abilities to deal with the public in a courteous way, using good customer service and conflict resolution skills. The CPO requires excellent communication (both written and verbal) including the ability to display tact and sensitivity and demonstrate problem solving skills and the ability to exercise professional judgement in a lawful and accountable way. In addition, the CPO requires developed community and interpersonal skills including the ability to effectively manage conflict situations and negotiate positive outcomes effectively. The two roles require very different skills and abilities which is not surprising when the different position overviews and objections are considered.

63      The P&I role has a comparatively limited scope, confined to matters associated with the enforcement of parking regulations. I recognise this may, from time to time, require a P&I officer to engage with people unhappy with being issued an infringement notice. The engagement in conflict resolution is limited. The CPO role, in contrast, is directed towards conflict resolution and ensuring a safer community. The CPO role is required and expected to engage in resolution of conflict as a core element of their role, not one that is incidental.

64      For the reasons set out above I find that the Classification of the two roles are not similar.

65      I find that the salary of the P&I Officer is less than that of the CPO and reflects the differences in the classification, and work value, of the two roles. The positions are not similar.

66      That status of the roles, based on reporting lines in the organisational structure, are similar and this supports a finding that the positions are similar.

67      Clause 10.4.2 permits the consideration of an employee’s skills, qualifications, abilities and experience with regard to the practicality and the cost of any retraining requirements. The clause uses the term ‘may also be considered.’ That is consideration of the practicality and cost is a discretionary consideration.

68      The evidence is that the CPO role requires the occupant possess a Certificate II in Security Operations. Ms Cerinich did not have this qualification and to undertake the CPO role would require her to undertake the relevant training course and assessment.

69      The City contends that it would facilitate Ms Cerinich obtaining the qualification. The City says that means it may have paid for the fees and charges and have permitted Ms Cerinich paid time to undertake the training. Ms Cerinich says she was not informed of these factors until after she had declined the CPO role and the Union had made this application.

70      Ms Cerinich considered the practicality of obtaining additional qualifications and undertaking the training required to obtain a Certificate II in Security Operations and concluded that she would struggle to attain the qualification in her circumstances of caring for two young children and working full time.

71      Retraining and obtaining further qualifications requires an employee to learn. It is difficult to gain additional knowledge and skills in circumstances where a person lacks motivation or capacity to undertake any training required. In Ms Cerinich’s circumstances it would not be fair to direct her to undertake the training required and to obtain a qualification she did not wish to obtain.

Conclusion to Question 1

72      For the reasons above, I find that the Community Patrol Officer is not suitable alternative employment for the Union’s member for the Parking and Information Officer.

Consideration of Other Factors Not Specified in Clause 10.4.2

73      Given my conclusion in [70], the question of whether other factors may be considered need not be addressed.

74      In this matter, the parties to the Agreement have adopted conflicting positions as to the meaning of the term ‘refer’ in cl 10.4.2 and consequentially the factors that are to be considered in an assessment of ‘suitable alternative employment.’

75      Clause 10.2 ‘Definitions of the Agreement’ uses the terms ‘includes’ and ‘means.’ This subclause does not contain a definition for the term ‘suitable alternate employment’ and cl 10.4 ‘Suitable Alternate Employment’ uses the term ‘refers’ in cl 10.4.2.

76      The term ‘refer’ is potentially capable of two meanings according to the Mirriam Webster dictionary. The first defines ‘refer’ as a transitive verb:

(1) to think of, regard, or classify within a general category or group

(2) to explain in terms of a general cause

 (a) to allot to a particular place, stage, or period

 (b) to regard as coming from or located in a specific area

77      Whereas the second defines ‘refer’ as an intransitive verb:

(1) to have relation or connection

(2) to direct attention usually by clear and specific mention

78      Dictionary definitions are not to be simply adopted when interpreting the terms of an Agreement however I observe that the term ‘refer’ is ambiguous and clarification of the text in cl 10.4.2 by the parties in future Agreements may assist in preventing and/or resolving disputes concerning the factors to be assessed in deciding whether a position is ‘suitable alternative employment.’

Question 2: If the answer to Question 1 is ‘yes’, is Ms Cerinich entitled to:

a. Reject an offer of suitable alternative employment made under cl 10.4 of the City of Stirling Inside Workforce Agreement 2019?

b. Be paid a redundancy payment under cl 10.7 of the City of Stirling Insider Workforce Agreement 2019?

79      Given the answer to Question 1 is ‘no’ it is not necessary to answer this question.

Question 3: If the answer to question 2 is ‘yes’, does section 80BE(2) of the Industrial Relations Act 1979 (WA) apply so as to give the Western Australian Industrial Relations Commission the power under cl 10.7.5 of the City of Stirling Inside Workforce Agreement 2019 to vary the applicable redundancy package the City is required to pay to Ms Cerinich under clause 10.7.1?

80      Given there is no necessity to answer question 2, it is not necessary to answer this question 3.

Question 4: If the answer to question 1 is ‘no’, is Ms Cerinich entitled to a redundancy payment under clause 10.7 of the City of Stirling Inside Workforce Agreement 2019?

81      The Union submits that Ms Cerinich is entitled to a redundancy payment in circumstances where there is a declaration by the Commission that the role of Community Parole Officer is not suitable alternative employment.

82      The Union submits that cl 10.7 of the 2019 Agreement operates in the same manner as described by how the Honourable Justice Katzmann of the Federal Court of Australia determined how s 119 of the FW Act operated in Broadlex Services Pty Ltd v United Worker’ Union [2020] FCA; 296 IR 425 (Broadlex) with regard to when an employee’s redundancy pay entitlement crystallised. In line with the Union’s submissions, Katzmann J held that:

a) an employer’s declaration of redundancy under s 119 of the FW Act is a repudiation of the employment contract;

b) an affected employee’s refusal to continue their employment is acceptance of the employer’s redundancy repudiation;

c) the employment of the affected employee is terminated by reason of their acceptance of the employer’s redundancy repudiation for the purposes of redundancy pay under s 119 of the FW Act; and

d) the termination of employment has thus occurred and the employer must pay the employee the applicable redundancy payment under s 119 of the FW Act.

83      The Union contends that Ms Cerinich’s employment contract terminated when Ms Cerinich accepted the City’s repudiation on 9 June 2023.

84      The Union says Ms Cerinich has terminated her employment by acceptance of the City’s redundancy repudiation by way of her refusal to accept any offers of further employment. Therefore, her entitlement to redundancy pay has crystallised in accordance with cl 10.7 of the 2019 Agreement and the City must pay her a redundancy payment. Refusal of any ‘suitable alternative employment’ does not extinguish Ms Cerinich’s entitlement to redundancy pay upon termination of employment.

85      The Union submits that Ms Cerinich is entitled to a redundancy payment applying cl 10.7 ‘Redundancy Payment’:

10.7.1 An employee whose employment is terminated by reason of redundancy is entitled to the following amount of redundancy pay in respect of a period of continuous service:

10.7.2 An employee who is 50 years of age or more at the time of redundancy shall be entitled to an additional eight (8) weeks’ pay provided that the total amount payable under 10.7.1 and 10.7.2 is capped at 52 weeks’ pay.

10.7.3 The above package shall be additional to all other entitlements owing to the employee.

10.7.4 For the purposes of this clause, continuity of service shall be the same as defined in Regulation 5 of the Local Government (Long Service Leave] Regulations regarding service to the City, as amended from time to time.

10.7.5 Application may be made to the FWC for variation of the applicable redundancy package where the City has obtained other acceptable employment for the employees or cannot pay the relevant amount stipulated in clause 10. 7.1.

86      The City submits that an assessment that the CPO role is not suitable alternative employment does not entitle Ms Cerinich to a redundancy payment under clause 10.7.1 because:

i) there is another position available to Ms Cerinich that the City says is suitable alternative employment, being the role of Ranger;

ii) even if the both the Ranger role and the Community Patrol Officer role are found after proper assessment by the Commission not to be suitable alternative employment, the City has the option of redeploying Ms Cerinich to another role, so long as it complies with its obligations under clause 10.5 of the Agreement;

iii) given the City has not yet decided to terminate the employment of Ms Cerinich on redundancy grounds, an entitlement to redundancy pay under clause 10.7.1 of the Agreement has not crystallised for Ms Cerinich.

87      The City’s submissions are that the processes set out in cl 10.4 ‘Suitable Alternate Employment’ and cl 10.5 ‘Redeployment’ and cl 10.6 ‘Transfer to Lower Paid Duties’ must be engaged and explored before it can be concluded that the decision results in the termination of the employment of an incumbent employee. The City contends that a decision to terminate the employment of Ms Cerinich has not been made.

88      The Union contends that the City’s submissions if accepted will permit the City to unfairly withhold a redundancy payment by refusing to terminate an employee when they are genuinely redundant and deny the employee a redundancy payment.

89      Clause 10.2 defines ‘redundancy’:

(b)  ‘Redundancy’ occurs where the City has made a definite decision that the City no longer requires a particular job to be performed by anyone and that decision leads to the termination of employment of the incumbent employee, except where this is due to the ordinary and customary turnover of labour.

90      It is not disputed that the City has made a definite decision that the City no longer requires the particular job of Parking and Information Officer to be performed by anyone. The disagreement between the parties is whether this decision leads, or has led, to the termination of Ms Cernich’s employment.

91      Adopting similar reasoning to that of Broadlex, I find that the City’s decision to no longer require a position to be performed leads to termination of employment because it is a repudiation of the employment contract. An effected employee’s refusal to continue their employment is acceptance of the employer’s redundancy repudiation and the employment is terminated.

92      In this matter, Agreement between the parties requires the City to consider alternative options to termination of an employee’s employment contract in circumstances where it has decided that the employee’s position is no longer required. However, I do not find that these obligations then mean the decision to fundamentally change the employment contract in this manner does not amount to a repudiation of the employment contract. The employee may elect to accept an alternative position/s offered by the City or accept the repudiation of the employment contract.

93      An employee may not unreasonably reject all positions offered. The test of whether a position is not acceptable is an objective one. However, it would be unfair to an employee for the City to engage in a practice of offering alternative positions that are not objectively acceptable alternatives and that are beyond the skills, knowledge and competence of the employee over an extended period of time such that the employee is given no option but to resign.

94      In circumstances where the City believes that any alternative position offered to Ms Cerinich was acceptable and was suitable alternate employment and was rejected by Ms Cerinich, the 2019 Agreement provides that the City may apply to the Commission to reduce the redundancy payment to be made. The City has not done so.

95      In these circumstances, I find that on 3 June 2023, Ms Cerinich accepted the repudiation of her employment contract because of the abolition of her position.

Does the Commission have Jurisdiction to Determine the Entitlement?

96      Question 4 seeks an answer to whether Ms Cerinich is entitled to a redundancy payment in accordance with the industrial agreement.

97      The City submits that the Commission does not have the power to decide this question because it requires the Commission to interpret the terms of the Agreement. The City contends that the s. 46 of the IRA provides the authority to interpret agreements and therefore it is not open to the Commission to interpret the Agreement under s. 44.

98      The Commission’s powers under s 44 are arbitral and are directed toward rights and obligations to be created whereas the exercise of judicial powers concern the ascertainment and enforcement of rights and liabilities as they are set out in industrial instruments.

99      A claim for the interpretation of an Agreement is an exercise of judicial power by the Commission under s 46 of the IR Act and a claim for enforcement of an industrial instrument is an exercise of judicial power and is within the exclusive jurisdiction of the Industrial Magistrate Court under s 83 of the IR Act.

100   The Full Bench in Crewe and Sons Pty Ltd v AMWSU (1989) 69 WAIG 2623 considered the powers available to the Commission under s 44 of the IR Act and at 2627 said:

‘In the ultimate analysis, the issue for determination in the present case is whether the authority was deciding a claim for payment of wages made as a matter of legal right or a claim for payment of wage is made not as a matter of legal right? But of what was right and fair.’

‘The former, then the decision constituted an attempted exercise of judicial power and was not the resolution of a dispute as to an “industrial matter”. If the latter, then the decision resolved a dispute as to such a matter.’

and at 2628 said:

‘A matter which involves the determination of existing rights under an award and therefore does not involve the application of section 26, because it involves the determination of existing prescribed legal rights, is not a matter which section 44 empowers in the arbitral function, unless it is in the course of addressing an industrial matter, but subject to what we say hereunder.

….

If the claim involves a determination of what is payable in accordance with legal principle that than what should be ordered as a matter of equity, good conscience and the substantial merits of the case, under section 26, then the matter is more likely to be a matter of enforcement or interpretation.

The arbitral function, however, does not involve a final determination of matters of right under the award.

A bald interpretive decision is precluded by the express existence of the power in section 46. However, in our opinion, in the course of a section 44 matter, unless the question is a bald interpretative matter, the Commission is entitled to interpret an award or any other document before it.

The recourse of interpretation removed from the arbitral process is not authorised by section 44.

A claim for payment based on matters of industrial policy as distinct from matters of legal entitlement is clearly one which might be dealt with under section 44.

A claim which arises clearly out of the contract of employment and the award is more likely to be a matter for enforcement. Thus, a claim for wages due and payable by an employer to an employee is a claim for the enforcement of an existing right as is a claim for the enforcement of a provision in an award.

If the claim involves a determination of what is payable in accordance with legal principle rather than what should be ordered as a matter of equity, good conscience and the substantial merits of the case, under section 26, then the matter is more likely to be a matter of enforcement or interpretation.’

101   In St Michael’s School v The Independent Schools Salaried Officers’ Association of Western Australia, Industrial Union of Workers [2000] WAIRC 00002; 80 WAIG 2839 the Full Bench found in a dispute pursuant to s 44 of the IR Act concerning the correct classification of an employee, that:

42 Its resolution required a finding of fact as to [the employee’s] duties and the application of the terms of the award (perhaps involving its interpretation) to those duties, to determine whether her classification should be as a Level 4, not a Level 3, employee, and whether the order sought should therefore issue.

43 There was clearly no attempt to enforce an order to pay the monies or indeed to enforce the award. The matter involved a determination of what classification under the award applied to an employee. The order, as the Commissioner, correctly observed, did not seek to compel the employer to do anything. Clearly, if the City was successful in obtaining the order and Mrs Murray was not paid what a Level 4 employee should be paid under the award, then the award would be enforceable in the Industrial Magistrate’s Court, pursuant to s.83 of the Act

102   In United Voice WA v The Director General, Department of Education (2015) 95 WAIG 13 (United Voice WA), The Full Bench considered the jurisdiction of the Commission under s 44 and the determination of the rights and obligations of parties under an industrial instrument and Smith AP sets out:

[94] In my respectful opinion, the determination of this issue starts from a consideration of the nature of the relief sought and whether the Commission is called upon to exercise arbitral power.

[95] The difference between an exercise of judicial power and arbitral power was explained by Issacs and Rich JJ in The Waterside Workers’ Federation of Australia v J W Alexander Ltd (1928) 25 CLR 434, 463 as:

[T]he judicial power is concerned with an assessment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted; whereas the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other.

[96] In Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australian (1987) 163 CLR 656, 666 the High Courts put the distinction simply:

  The purpose of the Commission’s inquiry is to determine whether rights and obligations should be created. The purpose of a court’s inquiry is to decide whether a pre-exising legal obligation has been breached, and if so, what penalty should attach to the breach.

 … … … …

[99] The Full Bench in Crewe and Sons referred to the decision of the High Court in Re Cram; Ex parte The Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 in which the High Court held that the making of a binding declaration or right is the exercise of judicial power. The Full Bench then summarise the principles enunciated by Mason CJ, Brennan, Deane, Dawson and Toohey JJ in Re Cram as follows (2627);

(1)    A claim for payment of wages due and payable by an employer to an employee is a claim for the enforcement of an existing legal right.

(2)    A claim for the enforcement of a provision in an award for the payment of wages to an employee is also a claim for the enforcement of an existing legal right.

(3)    Claims for the enforcement of existing legal rights necessarily invoke the exercise of judicial power.

(4)    The Court held that there was no jurisdiction in the Board to determine or enforce a legal right to payment of wages on the part of employees in respect of a past period during which they had been stood down or refused work or to enforce the provisions of an award regulating the right to payment of wages for such a period.

(5)    Thus, the authority was denied the power of judicial determination which included, to use the words of Kitto J. in Aberdare Collieries Case (op. cit.) 'the giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct'.

(6)    The making of a binding declaration of right is an instance of the exercise of judicial power.

It stands outside the arbitral function.

But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not of itself amount to a usurpation of judicial power (see Cessnock Collieries Case (op. cit.) and Australian Coal and Shale Employees' Federation Case (op. cit.) at page 174 and R. v. Gough; ex parte Key Meats Pty Ltd (1982) 148 CLR 582 at 596-597) (our underlining).

[Put in the context of the Industrial Relations Act (W.A.) it would not necessarily amount to an intrusion on the section 46 power].

(7)    Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties [see Aberdare Collieries Case (op. cit.)]. Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.

(8)    Despite the reference by Kitto J. in Aberdare Collieries Case (op. cit.) to 'the distinction between a power of arbitral decision in respect of the future and a power of judicial determination of existing rights and obligations', the arbitral function includes the determination of a dispute relating to past transactions, events and conduct. Commercial arbitration often involves the determination of such a dispute and so does industrial arbitration.

[100] Thus, it is clear that the Commission when exercising an arbitral function is not prohibited from interpreting industrial instruments. It necessarily follows that whilst a Commissioner may not make a binding declaration of the rights and obligations of parties under an industrial instrument, it is open to the Commission to make a binding determination of future rights and obligations.’

103   Adopting the reasoning of the Full Bench in United Voice WA, the question to be answered and determination of this issue in this matter arts from the nature of the relief sought and whether it is a determination of an existing right. The essential character of Question 4 is a determination of whether an entitlement to redundancy payment under the terms of the Agreement exists.

104   The question to be answered in Question 4 does not concern issues of fairness nor an issue of industrial policy. The relief sought by the question is a declaration as to an existing entitlement under the Agreement because of an event in the past. It is not a declaration on the pathway to a binding determination of future rights and obligations. It is therefore an exercise of judicial and not arbitral power and therefore, beyond the power of this Commission to make.

Representation

105   The questions concerning the Union’s entitlements in relation to representation are set out in Questions 5 to 10. The Union seeks orders in relation to each of the Questions.

106   The Union seeks orders as to the ‘industrial matters’ that are expressed as binding orders upon the parties. The Union submits that the ‘industrial matters’ are elucidated by the questions contained in the Memorandum

107   In relation to the issues concerning representational rights, the first question set out in the s 44(9) memorandum of referral, drafted and agreed by the parties, to be answered is:

Application of cl 6

Question 5.  During what period did cl 6 of City of Stirling Inside Workforce Agreement 2019 apply to Ms Cerinich as an employee affected by the City’s decision to restructure the City’s Community Safety Business Unit?

108   The Union submits that the period cl 6 applied to Ms Cerinich as an employee affected by the City’s decision to restructure the City’s Community Safety Business Unit was between early to mid-February 2023 and 9 June 2023.

109   The Union contends that the City made a ‘definite decision’ to abolish the Parking Services team within the Community Safety Business Unit and that it is on the occurrence of the Respondent’s ‘definite decision’ under cl 6.1 of the 2019 Agreement that the obligations of consultation crystallised and applied. The Union submits that the agreed facts and evidence that this was early-2023 given that the agreed facts state that the Union was informed of the decision on 16 February 2023 and from this point in time cl 6 of the 2019 Agreement applied to Ms Cerinich.

110   The Union submits that the period during which clause 6 continued to apply was early to mid- February 2023 until 9 June 2023 when Ms Cerinich accepted the repudiation of her employment contract

111   The City contends that period cl 6 applied to Ms Cerinich as an employee affected by the City’s decision to restructure the City’s Community Safety Business Unit as between the beginning of February 2023 and 31 March 2023. The City submits that cl 6 ceased to apply sometime between February 2023 and when the consultation process concluded at the end of March 2023.

112   Clause 6 of the 2019 Agreement provides:

6. Communication and the Introduction of Change

6.1   Where the City has made a definite decision to introduce major changes in production, programme, organisation, structure or technology that is likely to have significant effects on employees, the City shall notify the employees who may be affected by the proposed changes as soon as practicable.

6.2   "Significant effects" include termination of employment, major changes in composition, operation or size of the City’s workforce or in the skills required, the elimination of or diminishing of job opportunities, promotion opportunities, or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations and the restructuring of jobs. Where the Agreement allows for the City to make changes as part of the terms of the Agreement these shall not be considered “significant effects”.

6.3   Where the City has made a definite decision to make the changes referred to in subclause 6.2, the City shall notify the relevant union and commence discussions with affected employees within four (4) weeks of making such a decision. The City shall discuss the effects the changes are likely to have, measures to avert or mitigate the adverse effects of such changes and shall give prompt consideration to matters raised by the employees in relation to the changes.

6.4   Where the City proposes to make changes to employee(s) regular roster or ordinary hours of work, the City shall notify the relevant employee(s) and commence discussions with affected employee(s) as soon as reasonably practicable. The City will provide information and shall discuss the effects the changes are likely to have and invite the employee(s) to give their views about the impact of the change. The City shall give prompt consideration to the views given by employees about the impact of the change.

6.5   For the purpose of the discussions referred to above, the City shall provide in writing to the employees concerned all relevant information about the change including the nature of the changes proposed and the expected effects of the changes on employees. The City shall not be required to disclose confidential information, the disclosure of which would be unfavourable to the City’s interests.

6.6   Commitment to Change in Work Practices

The parties agree to a commitment to change by establishing work practices aimed at increasing productivity and efficiency in the workplace.

This commitment includes but is not limited to:

(i)            The introduction of new equipment to improve the efficiency of the City;

(ii)            Annual review of equipment, operational methods and procedures in place to maximise opportunities for efficiency and business growth;

(iii)            Flexibility in working hours;

(iv)            Acceptance of new technologies such as Global Positioning Systems on vehicles, which lead to a greater understanding of the requirement and characteristics of the business/services provided;

(v)            The recording of any information ultimately requested by the City, which will benefit the business and services, provided to customers;

(vi)            Multi-skilling is viewed by all parties as an essential aspect of working in a team situation where a multitude of tasks need to be performed and as such shall be adopted wherever it is beneficial to the services provided.

6.7   The relevant employees may appoint in writing a representative for the purpose of any of the procedures in this clause. If a relevant employee appoints or relevant employees appoint a representative for the purpose of consultation and the employee or employees advise the employer in writing of the identity of the representative, the City must recognise that representative.

113   Clause 6 does not specify a finite or prescribed period. The clause is directed toward the obligation of the City to notify employees and to engage in discussions with affected employees and their representatives.

114   I find that the relevant period commenced in February 2023 and continued for the period during which discussions concerning the consequences of the decision by the City had on Ms Cerinich’s duties and her employment continued. These discussions included the consideration of the impact the abolition of her position would have, the effect of the changes and consideration of Ms Cerinich’s views. The agreed evidence is that these discussions continued until 30 June 2023. The discussions did not resolve the concerns Ms Cerinich held and the Union made an application to the Commission pursuant to s 44 on 3 July 2023.

115   I find that that the answer to Question 5 is clause 6 applied until 3 July 2023.

Appointment of representative under cl 6.7

Question 6: Was Mr Knox appointed as Ms Cerinich’s representative pursuant to cl 6.7 of the City of Stirling Inside Workforce Agreement 2019 and if so, from when?

116   The Union first wrote to the City in relation to Ms Cerinich on 3 April 2023 (Letter). The Union submits that it is clear from this letter that Mr Knox was acting for Ms Cerinich as his name appears at the bottom of the letter in bold lettering and identified him as the relevant official of the Union. The Union says that is all that is required is for the City to be informed of the appointment of a representative by an employee in writing. That is, the employee is not required to personally write and inform of the appointment of a representative and, as in this matter, the representative may write to the City.

117   Following the letter there is an exchange of emails between Mr Knox and the City concerning Ms Cerinich’s employment in which Mr Knox is acknowledged as acting on behalf of Ms Cerinich.

118   The City contends that Mr Knox was not appointed as a representative under cl 6.7 because Ms Cerinich did not appoint Mr Knox by way of writing and that the union cannot retrospectively assert that one of their officer’s was appointed under cl 6.7 in these circumstances.

119   The City submits that the Letter does not refer to cl 6.7 nor specifically state, using the language of cl 6.7 and the question in the memo of referral, that Mr Knox has been appointed to represent Ms Cerinich for the purposes of the procedures under cl 6.

120   The City contends that the appointment of a representative, cl 6, requires an employee to nominate a representative in writing. That is, the subclause prescribes the means by which an employee invokes an entitlement to representation and communicates this to their employer.

121   In The Civil Service Association of Western Australia Incorporates v Director General as the Employing Authority, Department of Justice [2023] 104 WAIG 11 (the CSA Case) the Full Bench considered how representatives are appointed:

[61] Because of the breadth, or indeed the unlimited scope, of who can be a representative, it is no surprise that the parties would seek, by clause 36A(4), to provide a process for invoking the entitlement to representation. The process makes it clear when the obligation is triggered. The segregation of clause 36A(4)(a) and (b) ensures that an employer is not required to recognise the representative capacity of just anyone, unless:

• the representative is a person of certain standing such that their notification in writing that they so act can be relied upon (clause 36A(4)(a)); or

• the officer has themselves notified the employer in writing (clause 36A(4)(b)).

[63] Another key feature of clause 36A(4) is the conditions it prescribes must be met, before the obligation to recognise the representative or their capacity as such kicks in. Specifically, clause 36A(4) requires the identity and contact details of the representative to be given in writing. If a representative’s conduct, communications, acts and omissions will bind the officer, the employer needs sufficient details of the representative to be able to rely confidently on communications received from the representative.

[64] A further purpose of requiring notification of the identity of the representative is so that the employer understands whether the representative is acting in their capacity as a paid professional advisor, as a union official, or a lay person. The identity of the representative in this regard may inform how the ‘representative capacity’ of the person is to be recognised. For instance, it might be inappropriate to attempt communications with a legal practitioner outside of ordinary business hours. It might be entirely appropriate to communicate with a representative who is a workplace delegate working shiftwork, or a family member who works full‑time, outside of ordinary business hours.

122   In this matter, the processes for appointment of a representative differ from those before the Full Bench, particularly the requirements for specific contact details of the representative. However, the Full Bench set out the purpose of the requirements of how a representative is appointed and that the purpose is an important consideration in determining whether a representative was properly appointed.

123   The clause considered by the Full Bench in the CSA Case provides for either an employee to inform in writing of the appointment of a representative or an appointed representative to inform, in writing, the employer they have been appointed. In this matter, cl 6 of the 2019 Agreement provides for an employee or employees to advise the employer in writing of the representative. Clause 6 does not provide for the representative to inform the employer.

124   I find that cl 6 requires that Ms Cerinich inform the City in writing that she has appointed a representative. There is no evidence that Ms Cerinich did so. Therefore, I find that no such appointment was made.

Rights of representative under cl 6.7

Question 7: What rights, if any, does Mr Knox have as Ms Cerinich’s representative under cl 6.7 of the City of Stirling Inside Workforce Agreement 2019?

Question 8: Did the City interfere with, impair or prevent Ms Cerinich from exercising her right to be represented under cl 6.7 of the City of Stirling Inside Workforce Agreement 2019?

125   Given I have found that Mr Knox was not appointed to represent Ms Cerinich under cl 6.7, Question 7 and Question 8 does not arise.

Other rights relating to representation of Ms Cerinich

Question 9.  If Mr Knox was not at any time appointed as Ms Cerinich’s representative under cl 6.7 of the City of Stirling Inside Workforce Agreement 2019, did the Western Australian Municipal, Administrative, Clerical and Services Union of Employees have a right under the City of Stirling Inside Workforce Agreement 2019 and/or the Industrial Relations Act 1979 (WA) to represent the interests of Ms Cerinich to the City in this matter?

126   The Union submits that it has a right to representation under the IR Act and its registration under the IR Act has the effect of conferring rights of representation upon it to represent eligible members.

127   The City submits that the Question has no relevance to these proceedings because there is no evidence that the Union was prevented from representing its member. The Union has not set out any facts that point to the dispute to be resolved concerning its rights and nor any circumstances where its rights to representation as a party to the Agreement have been stifled nor any conduct by the City that prevents officials of the Union from representing its members.

128   The orders sought by the Union to quell the dispute are vague and lack clarity. It is not possible to determine the remedy that goes to creating future rights and obligation and, in these circumstances, I decline to make a finding or determination.

Question 10. If the answer to question 9 is ‘yes’, did the City interfere with, impair or prevent the Western Australian Municipal, Administrative, Clerical and Services Union of Employees or Ms Cerinich from exercising that right?

129   The Union submits the City interfered with the Union’s rights to represent its members by attempting to have another officer of the Union attend a meeting with Ms Cerinich despite being on notice that Mr Knox was representing her. The Union contends that this amounted to an interference with the representative rights of Mr Knox and the right of Ms Cerinich to be represented by Mr Knox.

130   The City denies it interfered with, impaired or prevented the Union or Ms Cerinich from exercising a right.

131   There is no dispute that an officer of the City suggested officers of the Union, other than Mr Knox, attend a meeting with Ms Cerinich. However, when Ms Cerinich declined to agree that another person attend the meeting to represent or support her, the officer did not press this, and Mr Knox continued to represent Ms Cerinich.

132   On the evidence I conclude that the City did not interfere with, impair or prevent the Union from representing its member.