APPEAL AGAINST THE DECISION OF THE PUBLIC SERVICE ARBITRATOR IN MATTER NUMBER PSACR 12/2023 GIVEN ON 6 MARCH 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2025 WAIRC 00146

DELIVERED : FRIDAY, 7 MARCH 2025

FILE NO. : FBA 8 OF 2024

Appellant

AND

The Civil Service Association of WA (Inc.)

Respondent

ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Coram : PUBLIC SERVICE ARBITRATOR, SENIOR COMMISSIONER R COSENTINO

Citation : [2024] WAIRC 00092

File No : PSACR 12 OF 2023

Catchwords : Industrial Law (WA) – Appeal against decision of the Public Service Arbitrator – Referral for arbitration – Dispute regarding working from home – Entitlement under industrial agreement – Whether enforcement of agreement – Jurisdiction of Arbitrator – No extra claims – Enforcement involving judicial power and not arbitral power – Appeal upheld

Legislation : Industrial Relations Act 1979 (WA) ss 6(aa), (ad), (ac), (ag), (b), (c), s 23, s 26(3), s 27(1)(a)(ii), s 41(4)(a), s 44, s 44(9), s 46, s 49(2)(a), s 83

Fair Work Act 2009 (Cth)

Industrial Relations Amendment Act 2024 (WA)

Minimum Conditions of Employment Act 1993 (WA) 

Result : Appeal upheld

Representation:

Counsel:

Appellant : Mr D Anderson of counsel and Mr J Carroll of counsel

Respondent : Mr J Tebbutt

Solicitors:

Appellant : State Solicitor's Office

Case(s) referred to in reasons:

Australasian Society of Engineers, Moulders and Foundry Workers, Industrial Union of Workers, Western Australian Branch & Ors v State Energy Commission of Western Australia & Ors (1990) 71 WAIG 315

BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2006] WASCA 49; (2006) 151 IR 362

Civil Service Association of Western Australia Incorporated v Director General, Housing Authority [2016] WAIRC 00902; (2016) 96 WAIG 1630

Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260

Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623

Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award (2008) 181 IR 245

Davie v Manuel [2024] WASCA 21

Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231

House v The King [1936] HCA 40; 55 CLR 499

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152

Minister for Corrective Services v Western Australian Prison Officers’ Union of Workers [2024] WAIRC 00825; (2024) 104 WAIG 2001

R v Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617

Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140

Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656

Robe River Associates v The Amalgamated Metalworkers and Shipwrights Union of Western Australia & Ors (1990) 70 WAIG 2083

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 87 WAIG 1689

The Civil Service Association of WA (Inc.) v Director General, Department of Justice [2024] WAIRC 00092; (2024) 104 WAIG 283

The Director General of Health v Health Services Union of Western Australia (Union of Workers) (Skull [No.2]) 2012 WAIRC 00362; (2012) 92 WAIG 732

The Registrar v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 29

Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152

United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2014) 95 WAIG 13

Reasons for Decision

THE FULL BENCH:

Background

1         The respondent, the Civil Service Association, filed an application for a s 44 conference on 18 April 2023 in respect of a dispute concerning a working from home request made by its member, Ms McFarlane, under cl 51 of the Public Sector CSA Agreement 2022.  The matter was not resolved by conciliation and the Arbitrator referred the dispute for arbitration.  The Memorandum of Matters for Hearing and Determination under s 44(9) of the Act, which issued on 17 July 2023, contained the following material facts and issues for determination: (see AB15):

SCHEDULE

1. The Applicant's member, Ms Rhonda McFarlane, is employed by the Respondent, the Director General, Department of Justice, as an Investigator Advocate for the Office of the Public Advocate (OPA) on a permanent, full‑time basis. She has served in the role for approximately 10 years.

2. Ms McFarlane’s terms and conditions of employment are those contained in the Public Sector Award 1992 and, since 21 February 2023, the Public Sector CSA Agreement 2022.

3. From early March 2022 until early March 2023 Ms McFarlane worked from home. Ms McFarlane was not directed to return to work during this period due to arrangements in place to manage the risks of COVID‑19 during the Public Health State of Emergency.

4. On 24 January 2023, following the end of the Public Health State of Emergency, the Respondent ended the arrangements referred to in paragraph 3 and directed that Ms McFarlane return to the OPA office workplace from 7 March 2023.

5. Clause 51.2 of the Public Sector CSA Agreement 2022 entitles employees to request a working from home arrangement to support their personal circumstances.

6. On 20 February 2023, Ms McFarlane requested a working from home arrangement on the basis it would support her personal circumstances involving her claim of having a medical condition or conditions that place her at high risk of complication or complications from COVID‑19.

7. Ms McFarlane submitted a working from home request form on 27 February 2023.

8. The working from home arrangement Ms McFarlane requested included that she work on a full‑time basis without being required to attend in person at the office of the OPA, at the State Administrative Tribunal, or at meetings with proposed represented persons.

9. The Respondent refused Ms McFarlane’s working from home request by letter dated 3 March 2023 citing the Department's Policy.

10. The Respondent does not accept that there are medical conditions Ms McFarlane has which together with the present level of COVID‑19 circulating in the community raise an unreasonable risk to her from attending work at the Office of the Public Advocate or from performing all of the duties of her employment as an Investigator Advocate.

11. The Respondent also maintains that there are reasonable business grounds for refusing Ms McFarlane’s requested working from home arrangements. Those grounds include that:

a) It is impracticable to change the working arrangements of other employees within the Office of the Public Advocate to accommodate the working from home arrangement Ms McFarlane has requested.

b) It would result in a significant loss of efficiency or productivity or have a significant negative impact on customer service, namely, the quality of investigation and advocacy.

c) The limitations on the duties required by Ms McFarlane would mean that she would not be discharging the substantial duties of the role for which she is employed.

12. Notwithstanding paragraph 10, the Respondent has proposed alternative means for supporting Ms McFarlane’s personal circumstances when she attends at the Office of the Public Advocate.

13. The parties are in dispute as to:

a) Whether Ms McFarlane suffers from a medical condition or conditions which expose her to an unreasonable risk which cannot be mitigated to an acceptable level by the measures proposed by the Respondent should she return to work at the OPA and be required to discharge all the duties of her role.

b) Whether there are reasonable grounds for refusing Ms McFarlane’s requested working from home arrangements in light of her personal circumstances.

c) Whether there are reasonable flexible working arrangements that can and should be accommodated, and if so, what are they.

14. Whilst in dispute, from 7 March 2023 to the date of this Memorandum, Ms McFarlane has not worked. She has accessed 555 hours of personal/annual/long service leave.

15. Ms McFarlane exhausted her accrued personal leave on 10 May 2023.

16. The matters which the Public Service Arbitrator is to decide are:

a) Whether Ms McFarlane will be exposed to an unreasonable risk if she returns to work at the Office of the Public Advocate.

b) Whether the accommodation which Ms McFarlane seeks in order to work exclusively from home is reasonable accommodation, having regard to the role she is employed to perform, its effect on the working arrangements of other employees, its impact on the quality of investigation and advocacy and Ms McFarlane’s personal circumstances.

c) Whether the Respondent has unreasonably refused Ms McFarlane’s working from home request.

d) Whether an order should be made that Ms McFarlane’s remuneration be resumed with immediate effect.

e) Whether an order should be made for reimbursement of Ms McFarlane’s remuneration and leave backdated to 7 March 2023.

2         The appellant filed an application on 2 January 2024 for the proceedings to be dismissed under s 27(1)(a)(ii) on two bases.  First, it was alleged the respondent’s pursuit of the proceedings contravened the Agreement by seeking to impermissibly traverse the appellant's refusal of the member's working from home request, conferred on it by cl 51(4). Second, on the basis that the respondent’s pursuit of the claim on behalf of Ms McFarlane contravened the ‘no extra claims’ provision in cl 7.2 of the Agreement.

Arbitrator’s decision

3         The learned Arbitrator dismissed the s 27(1)(a) application, giving ex tempore reasons at the conclusion of the hearing on 6 March 2024: The Civil Service Association of WA (Inc.) v Director General, Department of Justice [2024] WAIRC 00092; (2024) 104 WAIG 283.  After stating the issues to be determined, and summarising the parties’ arguments, the learned Arbitrator found and concluded as follows:

(a) The terms of cl 51 of the Agreement regarding work from home requests is not merely facilitative.  It contains substantive obligations on an employer to consider an employee’s working from home request, which must be approved unless there are reasonable business grounds to refuse it.  This is a mandatory obligation;

(b) The clause sets out parameters within which the parties may reach an agreement regarding working from home requests.  The employer’s ability to refuse such a request is inseparable from the employee’s right to make one and have it considered;

(c) Clause 51.4 of the Agreement is most accurately described as a right of an employer to withhold its agreement.  A refusal by an employer of a request for a work from home arrangement does not constitute a contravention of the Agreement.  The request and the refusal constitute a disagreement or dispute about the matters with which the clause deals;

(d) Such a dispute is amenable to the dispute resolution provision in the Agreement in cl 61, on a similar basis to many other provisions of the Agreement that deal with requests by both the employer and an employee;

(e) The appellant’s argument that on its proper construction cl 51.4 of the Agreement cannot be traversed was not accepted. Clause 51 is not exhaustive as to matters that might be relevant to an employee’s working from home request and its terms are not determinative;

(f) There are factual matters in dispute in the present proceedings. What flexible work arrangements can and should be accommodated is also a factual issue all of which are preliminary steps to be determined before cl 51.4 operates;

(g) The proceedings were not a contravention of cl 51 and the Commission’s jurisdiction was not precluded;

(h) The application does not constitute a contravention of cl 7.2 of the Agreement prohibiting further claims.  The substance of the industrial matter does not seek orders for the respondent’s member to exclusively work from home, nor does it seek to interfere with the employer’s right to refuse the request.  The substance of the dispute is essentially factual;

(i) The possible future orders that may be made do not include an order requiring Ms McFarlane to be allowed to work from home.  Any orders made would not have the effect of reversing the appellant’s decision, but may inform any future decision;

(j) As the proceedings only concern Ms McFarlane, the determination of the matter cannot affect any other employee or employer and therefore cannot be regarded as a claim to vary or enhance the terms and conditions of the Agreement;

(k) The dispute before the Arbitrator involves the exercise of a discretion concerning matters the subject of the Agreement and is not a further claim; and

(l) In applying United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2014) 95 WAIG 13 at [94], the proceedings are not in the nature of enforcement. In this case the powers in s 44 of the Act are being invoked for the purposes of the determination of particular questions of fact in order to resolve the industrial dispute.

The appeal

4         The appellant has appealed against the learned Arbitrator’s decision. The grounds of appeal are as follows:

1. In dismissing the appellant's application for the proceedings to be dismissed (Application), the Public Service Arbitrator (Arbitrator) erred in law by failing to provide the appellant with procedural fairness, namely, the Arbitrator did not put to the appellant any of the following:

a. the Arbitrator had the power to resolve a dispute before it by making a bare declaration;

b. the dispute before the Arbitrator involved a dispute as to the exercise of a discretion about matters contained in the Public Sector CSA Agreement 2022 (Agreement);

c. the claim made by the respondent was not captured by the no further claims clause in the Agreement on the basis that the dispute raised by the respondent is a dispute as to the exercise of a discretionary power conferred on the appellant by an industrial agreement; and / or

d. on its proper construction, clause 7.2 of the Agreement has no application to claims made by the respondent in respect of individual members of the respondent.

2. In dismissing the Application, the Arbitrator erred in fact and in law by failing to find that PSACR 12 of 2023 is an attempt to impermissibly impeach the appellant's refusal.

Particulars

a. an employee is entitled to a working from home arrangement upon written request unless an employer has reasonable business grounds to refuse it: cl 51 of the Agreement;

b. an employer contravenes an entitlement provision by failing to comply with that provision: s 83(1) of the Industrial Relations Act 1979 (WA);

c. the respondent's member, Ms Rhonda McFarlane, made a written request on 20 February 2023 for a working from home arrangement: [6], Memorandum of Matters (Memorandum);

d. the appellant refused the request made by the respondent's member: [9], Memorandum;

e. on a proper construction of cl 51, reasonable business grounds requires adverse business impacts associated with the material request sufficient to outweigh the employee’s personal considerations: Australian Municipal, Administrative, Clerical and Services Union v Brimbank City Council [2013] FWC 5 [14]‑[16];

f. the parties are in dispute as to whether there are reasonable grounds for refusing Ms McFarlane’s requested working from home arrangements in light of her personal circumstances: [13], Memorandum;

g. the Arbitrator seeks to determine that which the Industrial Magistrate's Court has exclusive jurisdiction to determine, namely whether the appellant has unreasonably refused Ms McFarlane’s right to work from home upon request: [16](c), Memorandum;

h. the Arbitrator does not have power to make a bare declaration in the terms set out in Memorandum [16](a), (b) and (c): Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244 and United Voice WA v The Director General, Department of Education (2014) 95 WAIG 13;

i. the Arbitrator seeks to determine whether Ms McFarlane ought be paid and whether reimbursement of her remuneration and leave ought be backdated to the date of the Memorandum: [16](d) and (e), Memorandum;

j. Ms McFarlane could have preserved her leave and maintained her remuneration by seeking injunctive relief, including interim injunctive relief, from the Industrial Magistrates Court in alleging a contravention that the appellant unreasonably refused her right to work from home upon request; and

k. Moreover, if the Arbitrator considers Ms McFarlane meets the preconditions for past or future remuneration such rights cannot be secured by an arbitral order.

3. In the alternative to Ground 2, by dismissing the Application, the Arbitrator erred in fact and in law by failing to find that the pursuit of PSACR 12 of 2023 by the respondent is a contravention of clause 7.2 of the Agreement, when as a matter of fact and law, it is.

Particulars

a. Clause 7.2 prevents parties to the Agreement, which includes the respondent, from making a further claim “on matters contained in” the Agreement.

b. Matters contained in the Agreement are:

i. that an employee is entitled to a working from home arrangement upon written request unless an employer has reasonable business grounds to refuse it: cl 51 of the Agreement; and

ii. minimum rates of pay and leave.

c. Contrary to the finding of the Arbitrator, cl 7.2 of the Agreement has application to claims made by the respondent in respect of individual members of the respondent: The Director General of Health as the delegate of the Minister of Health in his incorporated capacity under section 7 of the Hospitals and Health Services Act 1972 for the hospitals formerly comprising the Metropolitan Health Services Board in the person of Dr Phillip Montgomery, Executive Director, Royal Perth Hospital, South Metropolitan Area Health Service v Health Services Union of Western Australia (Union of Workers) [2012] WAIRC 362.

d. Commencement and the pursuit of PSACR 12 of 2023 is a “claim” within the meaning of that term as it appears in cl 7.2.

Public interest

The appellant contends that the matter is of such importance that in the public interest an appeal should lie on the following bases:

a) If the appellant is correct and the pursuit of PSACR 12 of 2023 by the respondent is in breach of the no further claims clause:

i. Even if the appellant was to be successful on the substantive merits in the proceedings in PSACR 12 of 2023 and / or the appellant was able to successfully challenge the finding pursuant to an appeal against any final relief, one of the main purposes of the no further claims clause would be entirely defeated merely by the matter proceeding to trial. That is, the objective that the appellant not be vexed by claims of any type captured by clause 7.2 and made in any manner by the respondent during the life of the Agreement.

ii. No further claims clauses create both a legal and a moral obligations. Compliance with such clauses goes to the heart of the system of industrial relations in this State, and it is consistent with the objects of the Industrial Relations Act that parties to industrial agreements be held to their solemn bargains in respect of no further claims clauses.

b) The appellant was not provided with a fair hearing at first instance because the key matters relied upon by the Arbitrator in dismissing the Application were not put to the appellant and were not raised by the respondent's submissions. The appellant's Application has therefore not been heard and determined in accordance with law and there is a strong public interest in such applications being heard and determined in accordance with law.

c) The decision at first instance is inconsistent with binding Industrial Appeal Court (Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244 [28]‑[34] (Wheeler and Le Miere JJ) [167] (Hasluck J)) and binding Full Bench authority (The Director General of Health as the delegate of the Minister of Health in his incorporated capacity under section 7 of the Hospitals and Health Services Act 1972 for the hospitals formerly comprising the Metropolitan Health Services Board in the person of Dr Phillip Montgomery, Executive Director, Royal Perth Hospital, South Metropolitan Area Health Service v Health Services Union of Western Australia (Union of Workers) [2012] WAIRC 362 [58]‑[65] (Smith AP) [89] (Beech CC)) and there is public interest in the resources of the WAIRC and the resources of the parties not being wasted by virtue of a trial which will last around 5 days if the matter ought to have been dismissed at an interlocutory stage based on the proper application of those binding authorities.

Nature of the appeal

5         The appeal involves a challenge to the exercise of a discretion by the learned Arbitrator as to whether she should have dismissed the proceeding at first instance under s 27(1)(a)(ii) of the Industrial Relations Act 1979 (WA) on the ground that further proceedings were not necessary or desirable in the public interest.  As such, and being a discretionary decision, the appellant is required to establish error of the kind set out in House v The King [1936] HCA 40; 55 CLR 499.

Leave to appeal

6         Given that the learned Arbitrator’s refusal to dismiss the substantive application under s 27(1)(a)(ii) of the Act is not a final decision, under s 49(2)(a) of the Act, for an appeal to lie to the Full Bench, the Full Bench must form the view that the subject matter of the appeal is of such importance that in the public interest, an appeal should lie.

7         The parties addressed this issue in their submissions.  The burden falls on the appellant to establish the public interest criterion is met. The nature of the ‘public interest’ is not to be construed narrowly and will involve a judgment being made, depending upon the circumstances of each case.  In The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2017] WAIRC 00830; (2017) 87 WAIG 1689, the nature of the public interest was considered and Smith AP (Scott CC agreeing) observed at [68] as follows:

When considering whether the matter is of such importance that in the public interest an appeal should lie, the principles are well established.  In Rainbow Coast Neighbourhood Centre Inc v Wood [2011] WAIRC 00821; (2011) 91 WAIG 1831, the Full Bench observed in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873 it was settled by a Full Bench unanimously [24]:

[T]hat the words ‘public interest’ are not to be narrowed to mean 'special or extraordinary circumstances'. An application may involve circumstances which are neither special nor extraordinary. It may involve circumstances which, because of their very generality, are of great importance in the public interest. Each matter will be a question of impression and judgment whether the appeal has the required degree of importance. Also important questions that may have effect in other industries, and substantial matters of law affecting jurisdiction, can give rise to matters of sufficient importance in the public interest to justify an appeal:  Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 (Ritter AP) [13] ‑ [14].

8         In our opinion, the appeal raises important matters including the operation of ‘no extra claims clauses’ in industrial agreements and whether the learned Arbitrator exceeded her jurisdiction by exercising judicial power.  These matters alone are in our view, of sufficient importance that in the public interest an appeal should lie.

The Agreement

9         It is convenient to refer to the relevant provisions of the Agreement at this juncture.  Clause 7 ‑ No Further Claims is in the following terms:

7.1 The parties to this Agreement undertake that, for its term, salary increases cannot be sought or granted other than those provided under the terms of this Agreement. This includes salary adjustments arising out of State Wage Cases. Such increases are absorbed in the salaries set out in this Agreement.

7.2 The parties to this Agreement undertake that, for its term, further claims cannot be made on matters contained in this Agreement except where specifically provided for.

10      The working from home provision is contained in cl 51 ‑ Working From Home.  Its terms are as follows:

51.1 The parties support working from home arrangements facilitated in accordance with this clause.

51.2 Subject to this clause, Employees can request a working from home arrangement to support their personal circumstances. A request made under this clause must be made in writing and should set out the details of the proposed working from home arrangement.

51.3 The Employer must consider an Employee’s working from home request. Any consideration is to be informed by the Employer’s obligations under the Equal Opportunity Act 1984 (WA) and subclause 51.4 of this Agreement.

51.4 The Employer can only refuse a request for a working from home arrangement on reasonable business grounds. Without limiting what are reasonable business grounds for the purpose of this clause, reasonable business grounds include the following:

(a) the working from home arrangement requested by the Employee would be too costly for the Employer;

(b) it is not possible or would be impractical to change the working arrangements of other Employees, or recruit new Employees, to accommodate the working from home arrangement requested by the Employee;

(c) it would result in a significant loss of efficiency or productivity or have a significant negative impact on customer service.

51.5 If the working from home arrangement is refused in accordance with clause 51.4, the Employer and Employee will consider whether other flexible working arrangements provided under this Agreement can be facilitated.

51.6 Irrespective of the number of days an Employee is permitted to work from home, a working from home arrangement does not provide for an Employee’s headquarters to be moved to the Employee’s home for the purposes of this Agreement or the Applicable Award.

51.7 Statutory requirements apply to Employees working from home as they do to Employees working at an Employer’s workplace. A working from home arrangement must address:

(a) duty of care responsibilities owed by the Employer and Employee under the Work Health and Safety Act 2020 (WA); and

(b) all additional statutory obligations affecting the Employer/Employee relationship.

51.8 Employers are required to undertake a risk assessment of the work activities carried out by Employees. In carrying out any assessment, Employers must look at who and what can be affected by, and the possible effects of, the work being done from home.

51.9 Prior to implementing a working from home arrangement, Employers must discuss matters relevant to a working from home arrangement with Employees including; insurance, provision of equipment and tools, related overhead costs, the Employee’s ordinary hours of work and flexible working arrangements provided under the Agreement, and any agreed reasonable accommodations. Employers can only initiate a working from home arrangement once this discussion has occurred and subject to the agreement of the Employee.

51.10 Approved working from home arrangements can, on the request of either the Employer or Employee, be reviewed. If the working from home arrangement is to be modified, the date of the implementation of the changes is to be agreed between the parties.

51.11 A working from home arrangement can be terminated by either:

(a) the Employer by giving 3 weeks’ notice, where it can be substantiated the arrangement:

(i) is having an ongoing adverse effect on the employee’s ability to deliver on their performance objectives; or

(ii) can no longer be accommodated on reasonable business grounds in accordance with clause 51.4; or

(b) an Employee by giving 3 weeks’ notice.

51.12 A working from home policy or procedure developed by an Employer, must be consistent with the provisions of this clause and statutory obligations under relevant legislation, including but not limited to, the Work Health and Safety Act 2020 (WA) and the Equal Opportunity Act 1984 (WA).

Contentions of the parties

Ground 1

11      As to this ground the appellant submitted that she was entitled to procedural fairness.  In the context of the matter at first instance, it was submitted that this obliged the learned Arbitrator to bring to the appellant’s attention matters that may have been critical to her determination of the issues before her.  It was submitted that the matters set out in sub‑grounds 1(a) to (d) were not matters that could have been reasonably anticipated by the appellant, as they were not raised by either the respondent or the Arbitrator in the proceedings.

12      It was contended that the absence of reference to these matters had a material impact on the appellant as if they had been raised, then the appellant could have addressed the issue of the jurisdiction of the learned Arbitrator to determine the dispute by the making of a bare declaration, in reliance upon Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231 per Wheeler and Le Miere JJ at [28]‑[34].  It was submitted that the appellant could also have made submissions to the learned Arbitrator that the dispute before her was not one which involved the exercise of discretion.  Finally, the appellant contended that she had no opportunity to make submissions as to whether the no extra claims provision in cl 7.2 of the Agreement applied to individual members, in reliance upon The Director General of Health v Health Services Union of Western Australia (Union of Workers) (Skull [No.2]) 2012 WAIRC 00362; (2012) 92 WAIG 732 per Smith AP at [58]‑[65] and Beech CC at [89].

13      In connection with this ground, the appellant relied upon the observations of Buss P, Vaughan JA and Seaward J in Davie v Manuel [2024] WASCA 21.

14      The respondent made a number of submissions in response to this ground.  The overarching submission was that both parties were given a full opportunity to put their written and oral submissions to the learned Arbitrator and that her reasons for decision revealed an awareness of the issues raised by the parties to be determined.

15      First, as to sub‑grounds 1(a) and (b) the respondent submitted that the learned Arbitrator expressly recognised that the matter referred did not require her to make a bare declaration of right but rather, involved the exercise of a discretion under s 44 of the Act.  It was submitted that the learned Arbitrator raised with the parties in the course of the proceedings the distinction between judicial and arbitral power and it could not be contended that the appellant was denied the opportunity of making submissions on the matter.

16      In relation to the no further claims clause in the Agreement, the respondent submitted that the scope and application of cl 7.2 of the Agreement was extensively discussed in the proceedings and in the appellant’s application to dismiss and the respondent’s response. As to the application of cl 7.2 of the Agreement to an individual member of the respondent, the respondent contended that the appellant had every reasonable opportunity to make submissions as to this matter.

17      In any event, and if the appellant makes good these grounds, the respondent submitted that any such failure to afford procedural fairness would have made no difference to the outcome of the proceedings.  Reliance was placed on the decision of the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 at [7].  It was contended, in reliance upon this case, that the possibility of a different outcome in the circumstances of this case is fanciful or improbable.

Ground 2

18      The upshot of the appellant’s submissions in this respect was that there is no capacity to enforce the entitlement to a working from home arrangement other than before the Industrial Magistrate’s Court.  It was contended that the essence of the dispute before the learned Arbitrator was one seeking to traverse the employer’s decision to refuse the request of Ms McFarlane.  It was submitted that the reality of the issues in dispute, as set out in the s 44(9) referral was not a dispute as to whether a working from home arrangement ought to apply as a matter of industrial fairness. Rather, the essence of the dispute is that the working from home arrangement request is an entitlement under the Agreement that was impermissibly refused as the employer did not have ‘reasonable business grounds’. 

19      On this basis, the appellant contended that to the extent that the learned Arbitrator, from her dismissal of the s 27(1)(a) application, intends to determine the dispute, the effect of so doing is to determine the entitlement of Ms McFarlane to a working from home arrangement in accordance with cl 51 of the Agreement. To the extent that the learned Arbitrator concluded to the contrary, the appellant submitted that this was an error.

20      Furthermore, the appellant submitted that the learned Arbitrator’s conclusion that the determination of what flexible work arrangements could be accommodated by the employer was not a matter caught by the terms of cl 51 of the Agreement was in error.  The appellant submitted that the error in this approach is that the accommodation of any flexible work arrangements is inextricably linked to the issue of whether the employer had ‘reasonable business grounds’ to refuse the request of the employee.

21      As to the issue of financial relief for Ms McFarlane, the appellant submitted that there is no jurisdiction for the learned Arbitrator to enquire into and determine these issues.  This is on two bases.  The first is that such would involve the determination of an existing legal right.  Second, such a determination would also involve in effect, a contravention of the no further claims clause.  Furthermore, it was submitted that to the extent that the claim referred for hearing and determination seeks remuneration for Ms McFarlane, whether that be past remuneration, to resume her remuneration or to recredit leave entitlements, these all amount to the exercise of judicial power as discussed by the Full Bench of the Commission in United Voice WA per Smith AP at [98]‑[99], Beech CC at [137] and Kenner C at [161]; and also Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 at 151‑152. It was contended that these matters fall within the exclusive jurisdiction of the Court.

22      Finally, in connection with this ground of appeal, the appellant contended that nothing in the s 44(9) referral indicates that the respondent’s claim on behalf of Ms McFarlane for financial relief, is sought on industrial fairness grounds, as opposed to being an entitlement.

23      For the respondent, a number of submissions were made. First, it was contended that the appellant’s approach to cl 51 misconstrues its terms and the distinction between the criteria of an entitlement and factual issues in dispute. The respondent submitted that from the learned Arbitrator’s reasons at AB102, it is clear that she took the view that a dispute about an employer’s refusal of a work from home arrangement is not a contravention of the Agreement. The respondent submitted that in this case there was a dispute about the circumstances of the respondent’s refusal and whether it was reasonable, having regard to the circumstances of the employee.  On this basis, the respondent submitted that the matters to be determined by the learned Arbitrator are essentially factual and contextual and operate within the limits established by cl 51 itself.

24      Looked at in this way, the respondent’s submission was that the essence of the task to be undertaken by the learned Arbitrator is in the nature of a preliminary fact finding, in order to determine how the industrial dispute is to be inquired into and dealt with.  In this regard, reliance was placed by the respondent on the decision of the Industrial Appeal Court in Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231 at [30].  It was submitted that a number of factual issues require determination, including the employee’s personal circumstances and whether any medical issues arise, in the context of COVID‑19 relevant factors.

25      In support of this approach, the respondent referred to the well settled distinction between the exercise of judicial and arbitral power as discussed in cases such as R v Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617 and Re Cram.  Furthermore, the respondent submitted that the learned Arbitrator was correct to observe that the distinction between a claim for enforcement and the exercise of arbitral power, is to be determined in the context of the relief sought in this case.  It was submitted that the s 44(9) referral does not seek a finding of a contravention of cl 51, and nor would findings of fact made by the learned Arbitrator have such an effect.

26      For these reasons the respondent submitted that ground 2 has no substance.

Ground 3

27      The appellant contended that this ground is advanced as an alternative to ground 2 and only needs to be considered if ground 2 is not made out.  The appellant submitted that the learned Arbitrator made an error by failing to find that the pursuit by the respondent of its claim on behalf of Ms McFarlane constituted a contravention of cl 7.2 of the Agreement, prohibiting ‘further claims’.

28      The appellant’s submissions in relation to this ground were advanced upon a number of bases.  First, it was submitted that on the authority of Toyota Motor Corporation Australia Ltd v Marmara [2014] FCAFC 84; (2014) 222 FCR 152 at [37] and [55], the no extra claims clause goes beyond merely a ‘right or entitlement’.  It also embraces any ‘attempt to improve upon’ any ‘matters contained in the agreement’.  This includes the advancing of a ‘proposal by one party to vary the outcome arrived at (by way of an agreement) in a way which advances its interests’. Second, it was submitted that the respondent, by pursuing an application under s 44 of the Act, can constitute a ‘further claim’: The Registrar v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 29 at 34.

29      Third, there is no necessity for a claim falling within cl 7.2 of the Agreement, that it be on behalf of all of the respondent’s members or a class of its members.  A further claim can be advanced in respect of one member: Skull [No.2]. Finally, undertakings expressed in ‘no further claims’ clauses, have been regarded as ‘solemn undertakings’, which are to be regarded as ‘morally, as well as legally binding’: Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award and Crown Employees (Teachers in TAFE and Related Employees) Salaries and Conditions Award (2008) 181 IR 245 at [15].

30      On the above bases, the appellant submitted that if the s 44(9) referral is to be construed as enabling the learned Arbitrator to determine whether the appellant’s refusal of the request was unreasonable, as distinct from not industrially fair, irrespective of the existence of reasonable business grounds for the refusal, then the respondent in pursuing the claim, must be seeking to improve on the matters set out in the Agreement, contrary to cl 7.2.  On the same basis, if the matters to be determined in relation to financial recovery for Ms McFarlane are based on an assessment of industrial fairness, then the appellant submitted that this too would constitute the respondent seeking to improve on the terms and conditions for salaries and leave set out in the Agreement.

31      On behalf of the respondent, it was contended that the content of the s 44(9) referral does not involve further claims contrary to cl 7.2 of the Agreement.  The respondent submitted that the learned Arbitrator correctly concluded that nothing in the referral seeks an order for the respondent’s member to be permitted to exclusively work from home. There is no order sought to prevent the employer from refusing such a request and nor did the application seek to limit the employer’s rights beyond cl 51.

32      In this context, the respondent submitted that in reliance on Civil Service Association of Western Australia Incorporated v Director General, Housing Authority [2016] WAIRC 00902; (2016) 96 WAIG 1630 at [97] the learned Arbitrator was correct to conclude that the dispute before her concerns the appellant’s exercise of a discretion to withhold agreement to the work from home arrangement with Ms McFarlane. That dispute falls within the scope of the Agreement, and is not one precluded by cl 7.2.

33      Finally, the respondent contended that the dispute does not seek any changes or improvements to the terms of cl 51 of the Agreement.  Nothing in the s 44(9) referral gives rise to such a potential outcome.  The submission was made that the learned Arbitrator would be required to embark on essentially a fact finding process.

34      Additionally, the respondent submitted that Scull [No2] is distinguishable.  That matter involved a claim in respect of an employee which would lead to a variation of the employee’s salary attached to their position, which was a relevant issue determined by the relevant industrial agreement.  In that case, and analogously with the present matter, the circumstances of the individual employee were held not to be relevant to a no extra claims provision of an industrial agreement.  There was no contravention in that matter.

Consideration

Ground 1

35      A party to proceedings before the Commission is entitled to procedural fairness in the conduct of their case. This requires a party being given a reasonable opportunity to present their  case and to respond to issues that may be adverse to them.  As Le Miere J observed in BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor [2006] WASCA 49; (2006) 151 IR 362 at [33]‑[34]:

BHPB was denied right to be heard

[33] The second step is whether BHPB was denied the right to be heard in relation to those findings.  Procedural fairness does not normally require a Judge to disclose his thinking processes or proposed conclusions.  However, a party may be denied procedural fairness if a Judge departs from the basis upon which the case has been argued by the parties without notice to the parties.

[34] The right to be heard includes a proper opportunity to present submissions seeking to persuade a court or tribunal that the evidence and inferences from it support or fail to support any fact necessary to be established.  A restriction upon the opportunity afforded to one of the parties through their counsel to make submissions upon the facts that are said to be established by the evidence deprives a party of their right to be heard.

36      Recently, the Court of Appeal in Davie considered the relevant principles in relation to procedural fairness.  The Court (Buss P, Vaughan JA and Seaward J) said at [86]‑[91] as follows:

[86] The principles relating to procedural fairness are well settled and were recently outlined by this court in Defendi v Szigligeti and approved in Frigger v Frigger.

[87] It is axiomatic that a court is obliged to accord procedural fairness to a litigant.  However, to say that a court is obliged to afford procedural fairness is only the first step of analysis.  The second step (and usually the more critical step) is to identify the content of the requirements of procedural fairness.

[88] Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.  However, the requirements of procedural fairness are not fixed or immutable.  Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances.

[89] Generally speaking, in litigation the parties must anticipate combinations and permutations of various findings and adduce evidence and make submissions at the trial on all the potential findings of fact on the issues litigated.  Any gap in the evidence on an issue will generally operate to the detriment of the party carrying the burden of proof on that issue.

[90] A person to whom procedural fairness is owed is, ordinarily, entitled to have brought to his or her attention the critical issues or factors on which the decision is likely to turn so as to give the person an opportunity to deal with them.  However, a decision‑maker is not usually required to disclose to a person to whom procedural fairness must be accorded the decision‑maker’s mental processes, provisional views or proposed conclusions before a final decision is made.  The position may be different when the decision‑maker's evaluation or conclusion is one that could not have reasonably been anticipated.  In this context, the observations of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd, are relevant:

Within the bounds of rationality a decision‑maker is generally not obliged to invite comment on the evaluation of the subject's case …

The general propositions set out above may be subject to qualifications in particular cases.  Two such qualifications were enunciated by Jenkinson J in Somaghi at 108‑109:

1 The subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it: Kioa v West at 587 (Mason J); Sinnathamby at 348 (Burchett J); Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 (Burchett J).

2 The subject is entitled to respond to any adverse conclusion drawn by the decision‑maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material: Minister of Immigration and Ethnic Affairs v Kumar (unreported, Full Court, Federal Court, 31 May 1990); Kioa v West at 573, 588 and 634.

[91] This statement of principles was referred to with approval by this court in Apache Northwest Pty Ltd v Agostino [No 2] and McKay v Commissioner of Main Roads.

37      The above general principles find expression in the Act in s 26(3) which provides:

(3) Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission must, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.

38      Consideration of this provision arose in the Australasian Society of Engineers, Moulders and Foundry Workers, Industrial Union of Workers, Western Australian Branch & Ors v State Energy Commission of Western Australia & Ors (1990) 71 WAIG 315. In this case, the Industrial Appeal Court considered the obligation to afford a party procedural fairness in the context of s 26(3) of the Act.  Nicholson J (Rowland and Walsh JJ agreeing) observed at 317 as follows:

The obligation to accord procedural fairness is one which takes its colour from the circumstances of the case including the nature of the enquiry the subject matter and the rules under which the decisionmaker is acting; cf Kioa v. West (Minister for Immigration and Ethnic Affairs (1985) 60 ALJR 113 at 127 per Mason J (as he then was). Where the decision in question is one for which provision is made by statute, “the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute” — Kioa (supra). Although Mason J was there speaking of the application of the rules of natural justice to administrative decisions, he spoke generally concerning the content of those rules which, a fortiori, have application to a judicial body. It is not therefore necessary to characterise the Commission as administrative or judicial to conclude that the rules have application to it.

Sub‑section 26(3) of the Act provides:

“(3) Where the Commission, in deciding any matter before it proposes or intends to take into account any matter or information that was not raised before it on the hearing of the matter, the Commission shall, before deciding the matter, notify the parties concerned and afford them the opportunity of being heard in relation to that matter or information.”

It is apparent that by sub‑s 26(3) the Act provides its own statutory support for procedural fairness so that what is appropriate iin[sic] terms of the requirement of natural justice for a proper hearing must take its colour from that provision.

39      The Court considered at 318 that the consequence of failing to afford a party a proper opportunity to put its case, means that orders made arising from the proceedings are void or voidable: Robe River Associates v The Amalgamated Metalworkers and Shipwrights Union of Western Australia & Ors (1990) 70 WAIG 2083.

40      We deal first with the contention in sub‑ground 1(a) to the effect that the learned Arbitrator did not raise the issue of the Arbitrator’s power to make a bare declaration. The appellant relied in this respect on two observations by the learned Arbitrator in her reasons in relation to fact finding.  The first appears at AB106 where the full passage is as follows:

I've already discussed the nature of the proceedings as set out in the memorandum. The arbitrator has not been asked to and is not exercising judicial power to determine the rights and liabilities of the parties. The memorandum does not allege contraventions of the agreement. The memorandum does not require the arbitrator to make bare declarations of a right or grant injunctive relief. Rather the arbitrator is exercising the powers provided by section 44 to decide particular questions of fact to resolve an industrial dispute. (Our emphasis)

41      The second appears in the next paragraph at AB106:

It is likely in the hearing and determination of this matter contested facts relevant to the issue of reasonableness of risks of harm, reasonableness of the accommodations Ms McFarlane seeks, and reasonableness of the refusal of her working from home request need to be determined. In doing so the terms of the agreement will likely need to be considered and applied. However, consideration of the terms of the agreement will be a step in the determination of the questions for arbitration and resolution of the industrial dispute, not for enforcement of the agreement itself.  (Our emphasis)

42      There are two difficulties with the appellant’s contentions in relation to this issue.  First, we do not consider that the learned Arbitrator’s reasons, read as a whole, contemplated that she could make bare declarations of fact, unconnected with the resolution of the wider industrial dispute.  Such bare declarations, as discussed and determined by the Industrial Appeal Court in Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231 (per Wheeler and Le Miere JJ at [28]‑[34]), would be problematic.

43      In the first paragraph referred to above, the learned Arbitrator clearly acknowledged the absence of a power under s 44 of the Act to make bare declarations of right and that the s 44(9) referral did not refer to this matter.  Whilst the last sentence of this paragraph refers to fact finding, the learned Arbitrator’s reasons did not reveal those findings would be made as bare findings of fact, unconnected to the resolution of the dispute.  It needs to be borne in mind that at the time of the appellant’s s 27(1)(a) application, the matter had not progressed to a hearing on the merits.  It could not be said in our view, that these parts of the learned Arbitrator’s reasons disclosed her view that she considered she had such a power.

44      The learned Arbitrator’s views as to this point tend to be confirmed in the second paragraph set out above.  In this paragraph, whilst again the learned Arbitrator referred to the need to make findings on contested matters of fact, she clearly saw such findings as being made in pursuit of the purpose of the ultimate determination of the industrial dispute.  The fact that such findings may bear on issues that may need to be considered in light of relevant provisions of the Agreement, which may involve the interpretation of its terms, is and of itself unexceptional.  In a s 44 arbitration, as it is well settled, ‘arbitral interpretation’ does not involve the bare exercise of judicial power:  Crewe at 2626.

45      Therefore we do not consider that the learned Arbitrator concluded that she had the power to make a bare declaration of fact, unconnected to the disposition of the industrial dispute that was before her.

46      However, irrespective of this, the appellant was alive to the issue of bare declarations of fact, as the appellant raised the possibility of it in oral submissions at the hearing.  At AB97 (p 18 transcript at first instance), the following submission was made by the appellant:

But even if that’s not the case, as my friend submitted, if let’s just say, for example, the arbitrator was just to declare as a matter of fact and maybe law that the respondent unreasonably refused the working from home request, my friend observed that one would expect the employer might take a different view, if a request was made again. But that’s the whole point. Even pursuing a declaration in those terms would be a further claim because it’s positioned the CSA into a better position to get the ultimate outcome it wants, which is a working from home arrangement. So as to get a benefit, which is a factual/legal ‑ in a matter of fact, if not a matter of fact of law, which puts it in a better position to pursue the entitlement. Or entitlement is probably the wrong word. Seek the benefit for Ms McFarlane [sic].  (Our emphasis)

47      It seems clear enough that the appellant had in contemplation the possibility of declarations as to matters of fact, even though in submissions they were qualified as also possible matters of law.  To have such a contention in mind, does not readily lead to the conclusion that the appellant was deprived of an opportunity by the learned Arbitrator to address it, or that it was a matter which could not have been reasonably anticipated: Davie at [90]. In our view, in these circumstances, the appellant was not deprived of an opportunity to address the matter and it was a matter that was sufficiently raised in the proceedings, for the purposes of s 26(3) of the Act.

48      We are not therefore persuaded that this sub‑ground of appeal has been established.

49      We will deal with sub‑grounds 1(b) and (c) together.  Cumulatively, the assertion of the appellant in these respects was that the appellant was not put on notice by the learned Arbitrator that the dispute was one involving the exercise of a discretion concerning matters contained in the Agreement, alternatively that the no further claims clause in cl 7.2 had no application for the same reason.  In addressing these sub‑grounds of appeal, it is necessary to go into some detail the various written and oral submissions put to the learned Arbitrator at first instance. After setting out the various contentions of the parties, and specifically in relation to the no further claims clause in cl 7.2, the learned Arbitrator reached the following conclusion at AB104:

Third, in CSA v the Housing Authority [2016] WAIRC 902 at paragraph 97 Commissioner Emmanuel observed that:

“Disputes about the exercise of discretion about matters the subject of an agreement are not necessarily further claims.”

This case falls into that same category. It is, at least in the relevant part, a dispute about the department’s exercise of its discretion to withhold agreement to a work from home arrangement within the scope of the agreement and not a further claim prohibited by clause 7.2. So the second ground for the department’s application fails.

50      In the respondent’s submissions at first instance at AB53‑55, reference was made to the issue of no further claims and specifically cl 7.2 of the Agreement.  An assertion of the respondent at first instance was that cl 7.2 does not preclude the claim.  Reference was made to Housing Authority and it was contended that that case dealt with a s 44 dispute concerning applications by employees engaged under fixed term contracts for permanency, under the terms of the then Public Sector General Agreement.  The employer in that case contested the Arbitrator’s jurisdiction to deal with the matter on various bases, including that the claim was contrary to cl 7.2 of the Public Sector and Government Officers General Agreement 2014, regarding no further claims.

51      At [54] of its written submissions, the respondent set out the conclusions of Emmanuel C in Housing Authority at [88]‑[97] of her reasons which were as follows:

[88] I agree that I do not have the power to vary the General Agreement in the circumstances.  However, I do not consider that the orders sought would vary the General Agreement.

[89] In my view, the orders would not necessarily give fixed‑term employees a right to be considered for appointment to a permanent position when they would not otherwise have that right.

[90] The Housing Authority and CSA agreed at the hearing that fixed‑term employees can apply for permanent positions at any time.

[91] The effect of the orders may be that the criteria of clause 7.1 of CI2 is met in relation to the specified employees.  A consequence of this may be that the specified employees would then not be excluded from being considered for permanent appointment.  On its face, that does not necessarily amount to having a right to be considered for appointment.  It also does not vary the General Agreement.

[92] I do not agree with the CSA that the no further claims clause only excludes claims in relation to wages and hours, or that it only relates to claims made in the bargaining process.

[93] The no further claims clause excludes ‘claims on matters contained in [the] General Agreement except where specifically provided for’.

[94] The question is whether the matters in the Memorandum are matters contained in the General Agreement.  Conversion is not mentioned in the General Agreement but modes of appointment and the conditions of employment for fixed‑term employees are in the General Agreement.

[95] I agree with the CSA that the no further claims clause should not be construed broadly.  If it were, many ancillary matters, including those introduced by an employer during the life of the General Agreement, would fall foul of the clause.

[96] On its face, the application seeks to correct what the CSA says is an unfair practice.

[97] These matters are about the Housing Authority’s practice of appointing and treating fixed‑term employees.  Disputes about the exercise of discretion about matters the subject of an agreement are not necessarily further claims.  I am not inclined to think this is a further claim.

52      In particular, Emmanuel C referred to the nature of the dispute before her in that matter, as not being covered by the no further claims clause and one not involving a variation of the General Agreement.  Her conclusions at [96]‑[97], were that in essence, the nature of the dispute involved an allegation by the CSA in relation to what was contended as an ‘unfair practice’.  Further, that in those circumstances, and given the nature of the specific matter before her, Emmanuel C concluded that disputes regarding the exercise of a discretion concerning provisions of an industrial agreement ‘are not necessarily further claims’.  She did not think that the matter before her was of that kind.

53      Immediately following at [55] of the respondent’s submissions (see AB55), it was contended that the respondent was ‘disputing the reasonableness of the respondent’s decision to deny Ms McFarlane the ability to work from home.  Continuing this approach is well within the jurisdiction of the Arbitrator under s 80E(1) and (5) IR Act’.

54      The appellant filed written submissions in reply to those of the respondent at first instance at AB68‑77.  At [42]‑[44] (see AB75), the following submissions were made:

42. The applicant relies upon the CSA v Housing Authority decision to say the present issue has already been dealt with.

43. That case dealt with the particular claim made in those proceedings and whether the claim made fell foul of the no further claims clause. The Arbitrator held it did not.

44. The Arbitrator as presently constituted needs to consider if the present claim falls foul of the no further claims clause. The present claim is materially different to the claim made in the CSA v Housing Authority and the present claim deals with a matter specifically included in the Agreement (the right to apply to work from home and the limitations regarding an employer's ability to refuse such an application).

55      The issue as to sub‑grounds 1(b) and (c) is raised in the context of an alleged ouster of the respondent’s claim because of the no further claims provision in cl 7.2 of the Agreement.  This matter was raised as part of the second ground advanced by the appellant to dismiss the application under s 27(1)(a).  By way of context, the appellant’s written submissions at first instance contended at [41] (see AB31) that:

41. The present claim by the applicant which seeks arbitral orders that the applicant's member be allowed to exclusively work from home:

(a) in circumstances where the respondent has refused to grant the request, purportedly within its permission to do so under cl 51.4 of the Agreement; and

(b) for reasons which are foreign to cl 51 (in that the applicant seeks for its member to work from home unless the accommodation imposes an unjustifiable hardship on the respondent and where inherent requirements might be relevant but are not determinative of that question),

is a claim in contravention of cl 7.2.

56      In its submissions in opposition to the application to dismiss, the respondent challenged the appellant’s construction of cl 51 of the Agreement (which was rejected by the learned Arbitrator) and as to cl 7.2 of the Agreement, the respondent contended that it did not have the effect of ousting the respondent’s claim because it described cl 51 as ‘inchoate, incomplete or rudimentary’.  Reference was then made by the respondent to the decision of Emmanuel C in Housing Authority. 

57      Whilst it may be fair to observe that the respondent’s submissions at first instance, with respect, could have been clearer, the only reason for seeking to refer to and rely upon Housing Authority, was to assert that as in that case, although factually distinguishable, an issue arising for present purposes in these proceedings, at first instance, was the exercise of a discretion by the employer ‘i.e. an unreasonable refusal to grant the working from home request’ arising from cl 51 of the Agreement, which dispute was capable of being dealt with by the learned Arbitrator.

58      The appellant contended on the appeal that the reference to the Housing Authority case by both the respondent and the learned Arbitrator was erroneous.  It was submitted that the learned Arbitrator needed to engage with the specific claim in this case and the terms of cl 51 of the Agreement.

59      Whether the respondent, and the learned Arbitrator were correct in their reference to and reliance upon the Housing Authority case, is not strictly to the point in the context of these sub‑grounds.  What is relevant is whether the matter of the exercise of a discretion concerning issues contained in the Agreement and its impact on cl 7.2, was a matter raised in the proceedings, and whether the appellant had reasonable notice of it and an opportunity to respond.

60      Having regard to the foregoing, we consider that the issues identified in these sub-grounds were raised in the proceedings for the purposes of s 26(3) of the Act.  These sub‑grounds of appeal are not made out.

61      The final matter under this ground is the contention in sub‑ground 1(d) that the learned Arbitrator did not put to the appellant, or, as we consider it also could be stated, that the issue of cl 7.2 not applying to claims by individual members of the respondent, was not one that was raised in the proceedings. The learned Arbitrator as to this issue said as follows in her reasons at AB104:

Second, the arbitration concerns only the CSA’s member Ms McFarlane vis‑à‑vis her employer the department. Its resolution has no bearing on either any other employee or any other employer covered or bound by the agreement. It cannot, therefore, be a claim to vary or enhance the conditions contained in the agreement.

62      In the appellant’s written submissions at first instance at [46] in addressing the application of cl 7.2 the following submissions were made (see AB33):

…

(b) the object of the IR Act identified in s 6(ae) on the basis that given the statutory assumption that the Agreement provides for fair terms and conditions for employees covered by the Agreement there is no basis for the Arbitrator to confer a more beneficial term upon an employee covered by the Agreement to the detriment of an employer bound by the Agreement ‑ that would be unfair;

(c) the object of the IR Act identified in s 6(ag) because if, after reaching agreement on a fair set of terms and conditions of employment to be contained in an industrial agreement, a union bound by the industrial agreement could seek to obtain by arbitral order more beneficial terms and conditions for one or more of its members during the life of the agreement, there would be insufficient motivation for employers to make industrial agreements given;

(i) such agreements would simply become a safety net for employees covered by the agreement rather than providing the terms and conditions for those employees; and

(ii) if the making of an industrial agreement would not in truth settle as between employer and union parties to the agreement all disputes as to terms and conditions for employees covered by the agreement for the life of the agreement.  (Our emphasis)

63      At p 6 of the transcript at first instance (AB85) counsel for the appellant made the following submission:

So I think paragraphs 11 and 12 of the memorandum are squarely directed at the industrial agreement. As for paragraph 10 that type of argument is what I was alluding to in the framework for how you might approach the Director General’s application in that if the claimant’s ‑ or whether, firstly, under the agreement there’s an ability under clause 51 there’s an ability for an employee or the association to make a claim on behalf of a member to work from home on some reason other than ‑ even where, sorry, there are reasonable business grounds for refusal. And so that the type of circumstances might be ill health or COVID or the like that make it industrially unfair, allegedly industrially unfair.  (Our emphasis)

64      In other respects the issue of the advancement of a claim by an organisation on behalf of an individual member, was not further referred to, including by the respondent.

65      On the basis of the appellant’s written and oral submissions at first instance, relevantly set out above, in our view it was in the contemplation of the appellant that for the purposes of no further claims clauses, a claim by the respondent, made on behalf of an individual employee covered by the Agreement, would be caught by cl 7.2. That is the inescapable conclusion from the tenor of the submissions.  As we have mentioned, the respondent did not address this issue in any of its written oral submissions at first instance. 

66      We accept that the learned Arbitrator did not, from the transcript of proceedings, expressly put to the appellant that which she concluded at AB104 set out above.  That is, she did not put to the parties during the course of argument, that because the claim was brought by the respondent only on behalf of Ms McFarlane, that it therefore could not be characterised as a claim to vary or enhance the conditions set out in the Agreement.  However, accepting this to be so, as discussed in Davie at [90], the issue of the no further claims clause in cl 7.2 would, on the appellant’s submissions, apply to claims on behalf of one or more members of a union.  This matter was put in issue by the appellant.  On this basis, it could reasonably have been anticipated that this issue would arise in the learned Arbitrator’s conclusions.

67      In the alternative, if we are incorrect in relation to this sub‑ground of appeal, given our conclusions below in relation to ground 3, it has no material effect.

Ground 2

What does cl 51 provide?

68      For the purposes of grappling with the difficult issues arising in relation to this ground, a consideration of the terms of cl 51 of the Agreement is necessary.  This needs to be considered in the context of the framing of the issues in dispute between the parties, leading to the s 44(9) referral for arbitration.  We will deal with this latter aspect further below.

69      The principles applicable to the interpretation of industrial instruments, including industrial agreements, are well established and were set out by the Full Bench recently in Minister for Corrective Services v Western Australian Prison Officers’ Union of Workers [2024] WAIRC 00825; (2024) 104 WAIG 2001 at [28].

70      Whilst at first instance the respondent attempted to argue that the terms of cl 51 of the Agreement are merely facilitative, the learned Arbitrator rightly rejected that contention (see AB102).  The terms of cl 51 are not merely facilitative.  It confers substantive rights on employees and employers who are bound by the Agreement.  By cl 51.2 an employee has the right to request a working from home arrangement.  Conditions are attached to this request as to form and substance.  By cl 51.3, the request must be considered by the employer.

71      Clause 51.4 is the key provision for present purposes.  It provides that a request by an employee for a working from home arrangement can only be refused on ‘reasonable business grounds’.  The subclause then sets out what those grounds must include.  They must be matters connected to the business operations of the employer. Clause 51.5 then goes on to provide that other flexible work arrangements under the Agreement are to be considered, in the event of an employer’s refusal under cl 51.4.  This appears to be facilitative in nature. 

72      Other obligations are imposed on employers by cls 51.7, 51.8, and 51.9.  All are expressed in language of obligation.  Of note, cl 51.11 confers a qualified right on an employer to terminate a working from home arrangement, subject to the requirements of cl 51.11(a)(i) and (ii). To terminate an arrangement, the employer must be able to substantiate that the arrangement is having an adverse effect on its performance, or, that reasonable business grounds as specified in cl 51.4, preclude the arrangement continuing. Whilst the employer’s rights to terminate are qualified in this manner, an employee has an unqualified right to terminate a working from home arrangement under cl 51.11(b).

73      The effect of cl 51.4 read with cl 51.11 of the Agreement, creates an enforceable entitlement in an employee, to a working from home arrangement. There appears to be no capacity for the employer to question an employee’s personal circumstances as specified in an employee’s request under cl 51.2, as a basis for refusal of the request.  The refusal may only be on the grounds set out cl 51.4 and on no other grounds.  The terms of cl 51.4 in effect create a reverse onus.  In a sense, it is self‑executing.  If requested by an employee, an employer must accept a request for a working from home arrangement, unless it can establish a reasonable business ground(s) for rejection of the request. That is, an employee’s entitlement to a working from home arrangement exists as an enforceable right under cl 51, unless an employer establishes that it has reasonable business grounds to refuse the request. The burden falls on the employer to establish this. 

74      This construction is supported by the limited basis for an employer to terminate a working from home arrangement, as noted above.  As we have also noted, the onus is on an employer to ‘substantiate’ either of the matters in cl 51.11(a).  If it cannot do so, the working from home arrangement seemingly will continue until the employee decides to terminate it under cl 51.11(b). Whilst there is a capacity for a ‘review’ of an arrangement under cl 51.10, there seems to be no mechanism in cl 51, other than in cl 51.11, to bring a working from home arrangement to an end, assuming that an employee remains employed by their employer.

Judicial or arbitral power

75      It is trite to observe that the Act distinguishes between the exercise of judicial power, by way of enforcement, and the exercise of arbitral power.  Section 46, enabling the Commission to make bare declarations as to the meaning of the terms of awards or industrial agreements, s 83 regarding the enforcement of entitlement provisions by the Court and the power of the Full Bench under s 84A to enforce the Act and certain kinds of orders of the Commission, are examples of the former.  Section 44, read with s 23 of the Act, enabling the Commission to conciliate and arbitrate disputes in relation to industrial matters, is an example of the latter.

76      Whilst the dividing line between the exercise of judicial power by way of enforcement and the exercise of arbitral power is sometimes a fine one, it has been repeatedly held by the Full Bench that the terms of s 44 of the Act should not be read down. This was first considered in Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623 at 2626. The determination of whether judicial or arbitral power is sought to be invoked will often turn on what is the ‘essence’ of the dispute before the Commission: Crewe at 2626.

77      The distinction between judicial and arbitral power was also considered by the Full Bench in United Voice WA.  In this matter, Smith AP (Beech CC and Kenner C agreeing) observed at [95]‑[100] as follows:

[95] The difference between an exercise of judicial power and arbitral power was explained by Isaacs and Rich JJ in The Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 463 as:

[T]he judicial power is concerned with the ascertainment, 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 Australia (1987) 163 CLR 656, 666 the High Court put the distinction more 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 and determination is to decide whether a pre‑existing legal obligation has been breached, and if so, what penalty should attach to the breach.

[97] Accordingly a judicial function arises when the resolution sought is ascertainment of legal rights and obligations as opposed to the creation of new rights and obligations. In reclassification proceedings the Commission usually is called upon to exercise arbitral power; that is to create a bundle of new rights and obligations. The Industrial Magistrate's Court acting under s 83(1) and s 83(4) of the Act is conferred with judicial power to determine whether an award, industrial agreement or order has been complied with.

[98] In Crewe and Sons the Full Bench quashed an order by the Commission that an employer pay three of its employees annual leave loading prescribed by the Metal Trades (General) Award No 13 of 1965. The order was made under s 44 of the Act. In a unanimous decision of the Full Bench they observed that:

(a) it was established in Mt Newman Mining Co Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1984) 64 WAIG 1075 that the Commission does not have any jurisdiction to hear and determine matters that are essentially seeking enforcement or recovery of wages under an award;

(b) the power and duty to enforce orders and awards is conferred separately in the Act by separate express provisions upon the Full Bench (s 84A) and the Industrial Magistrate (s 83) (2626).

[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 summarised 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.

The essential nature of the dispute

78      What then is the essential nature of the dispute at first instance?  An application was made by the respondent for a compulsory conference under s 44 of the Act.  After a brief recitation of the facts, pars 5, 7 and 8 of the application provides as follows:

5. The Dispute relates to the nature of the respondent’s refusals of Ms McFarlane’s recent working from home (WFH) requests made under cl 51 of the Agreement and the respondent’s associated direction that Ms McFarlane take leave (Leave Direction) coinciding with a blanket direction to all employees to cease COVID‑19 WFH arrangements (General Direction).

…

7. Clause 51 of the Agreement is a relatively new clause that sets out a process for approval of employee working from home (WFH) arrangements and imposes limits on the employer refusing or terminating such arrangements. It requires the employer to be informed of its obligations under the Equal Opportunity Act 1984 in making WFH decisions.

8. Simply put, according to the applicant’s perspective, the Dispute has arisen because the respondent has preferred to follow its outdated and more restrictive Working Hours and Flexible Working Options Policy instead of the new cl 51 of the Agreement and wants above all else to continue ‘business as usual.’

79      It seems reasonably clear from the application under s 44 of the Act, that the essence of the dispute as framed by the respondent, is for the appellant to ‘follow’ cl 51 of the Agreement and not what the respondent described as the appellant’s ‘outdated’ and ‘more restrictive’ policy.  We should add however, that nothing in cl 51 prevents an employer from having a policy in relation to working from home arrangements. This is specifically contemplated by cl 51.12, as long as any such policy is consistent with the terms of the clause and relevant statutory obligations.  As a matter of construction, this tends to suggest that cl 51 is to be regarded as a minimum entitlement.

80      As noted above, it was not controversial that Ms McFarlane’s request was made in accordance with cl 51 of the Agreement, which is recorded at par 5 of the application and at pars 5, 6, and 7 of the referral.   

81      There is no suggestion in the s 44 application or in the s 44(9) referral, that the respondent seeks relief based on matters of industrial fairness or on equity, good conscience and substantial merits grounds.  The gravamen of the dispute, as set out in the application under s 44 of the Act, is ‘the nature of the respondent’s refusals of Ms McFarlane recent working from home requests made under cl 51 of the Agreement….’. The respondent seeks to tie the dispute to the entitlements set out in the Agreement.  The s 44(9) referral, as set out above, continues the thrust of the issues identified in the application.  In particular, par 13(b) squarely puts in issue the exercise of the right of the appellant to refuse Ms McFarlane’s request for a working from home arrangement, under cl 51.4 of the Agreement.  It directly invokes the reverse onus, noted above, on the employer to justify its refusal.

82      Similarly, par 16(c), although recast somewhat from par 13(b), essentially asks the same question.  An issue for determination in the arbitration is whether, in effect, the employer exercised its right to refuse Ms McFarlane’s request in accordance with cl 51.4 of the Agreement.  This is because the right of refusal of an employer of an employee’s working from home request can only be based on reasonable business grounds, as set out in cl 51.4 itself and on no other grounds.  The right in an employer to do so only arises under the Agreement and within its four corners.  The matters set out in par 16(b) of the referral seek to ventilate issues that arise under cl 51.4(b) and (c) of the Agreement, being matters the employer can rely upon as reasonable business grounds, in order to refuse a request.

83      Despite the width of the Commission’s powers under s 44 of the Act, as in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (1987) 163 CLR 656, the s 44(9) referral does not in terms, set out what rights and obligations should be created in the future.  Rather, the substance of it concerns whether a pre‑existing obligation on the appellant under cl 51.4 of the Agreement has been breached. These are matters involving enforcement of the Agreement that the Court would need to determine, in the event of an enforcement action under s 83 of the Act.

84      The absence of a provision within cl 51, enabling disputes as to whether an employer’s refusal of a working from home request is based on reasonable business grounds, to be referred to the Commission for resolution, is a further indication of the nature of the clause, as essentially being one for the Court to enforce.  This is in contrast to cl 52 ‑ Workload Management for example, which specifically contemplates in cl 52.8, that disputes in relation to the clause be dealt with in accordance with the disputes resolution procedure in cl 61 of the Agreement.  It may well be open to conclude in any event, that a disputes clause in an industrial agreement cannot confer jurisdiction on the Commission, contrary to the Act.  However, given the absence of such a provision in cl 51, these matters are best left to another day.

85      Further, as provisionally identified by the learned Arbitrator herself, the orders sought in pars 16(d) and 16(e) are problematic.  They appear on their face to seek to recover amounts due to Ms McFarlane, by way of remuneration and leave entitlements, under the Agreement, contrary to s 83 of the Act, and the restoration of remuneration under the Agreement. Despite the width of the Commission’s powers under s 44 of the Act, these orders seek to enforce payments under the Agreement, which is the sole province of the Court under s 83 of the Act. 

86      We would therefore uphold this ground of appeal.

Ground 3

87      Whilst the appellant submitted that the Full Bench need only consider this ground if ground 2 is not made out, we consider the Full Bench should nonetheless deal with all grounds of appeal, not only those that may be regarded as decisive: Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260 at [105] citing and applying Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274 at [105] and Kimberly‑Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1 at [34]‑[35]. 

88      It is to be accepted that no further claims clauses constitute a serious commitment by parties to an industrial agreement to refrain from attempts to depart from the bargain they have reached.  The importance of no further claims provisions was referred to in Crown Employees.  In that case, Boland and Schmidt JJ and McLeay C of the New South Wales Industrial Relations Commission said at [15]‑[17]:

[15] We would observe that no extra claims undertakings were adopted in the early 1980s in the federal Metal Industry Award 1971, as a device to prevent further award, but particularly over award, claims being made for an agreed period. Such undertakings have become a standard feature of wage fixing arrangements both at the federal and State level, especially through the mechanism of wage fixing principles. Commendably, employees, unions and employers have regarded their commitments to make no extra claims during the life of an award or agreement as solemn undertakings and rarely have they been breached. The commitments have been regarded as morally, as well as legally binding.

[16] The purpose of no further claims commitments is to ensure certainty during the life of the relevant industrial instrument. That is to say, all matters agreed or arbitrated upon represented a settled arrangement for the term of the award or agreement. Depending on the terms of the commitment, employers could plan and act on the basis that during the life of the award or agreement, they would not incur any additional labour costs or industrial action in support of extra claims, nor would they be required to divert resources to dealing with such claims. Employees and their unions would not face claims to cut wages or alter to their detriment employment conditions prescribed by the award or agreement.

[17] In Re Corrections Health Service Nurses’ State Award, Wright J, President made certain observations at 245 about the critical importance of no further claims commitments:

It should be emphasised that the Commission must ensure the integrity of not only its own wage fixing principles but also the strict observance of agreements and undertakings given by parties compliance with which, properly considered, are important and indeed essential to the integrity to the principles. Undertakings such as no extra claims provisions are crucial parts of the integrity of the system of wage fixation which occurs in the New South Wales system of industrial regulation….

In approaching the construction of no extra claims provisions, or provisions such as those contained in the Heads of Agreement, a strict approach of their construction should be applied consistent with the necessity of maintaining the integrity of the wage fixation principles.

89      The importance of such provisions is illustrated by the fact that a contravention of a no further claims provision has been, and may be enforced in the Court: The Registrar v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 29.  In that case, the contravention of the no further claims provision manifested itself in a s 44 compulsory conference application, in which the particular claim was advanced.

90      The nature of no further claims clauses was considered in Toyota Motor Corporation.  In that case, the Full Court of the Federal Court of Australia on appeal, considered the terms of an enterprise agreement made under the Fair Work Act 2009 (Cth) which contained a no further claims provision.  At issue in the matter at first instance was whether the proposed change to the enterprise agreement as sought by the employer, infringed the no further claims clause.

91      Whilst the appellant in that matter argued on the appeal that the concept of a ‘claim’ for the purposes of the no further claims clause should be given a narrow scope, this was rejected by the Full Court.  In concluding that a ‘claim’ is not limited to the advancement of a right or entitlement, Jessup, Tracey and Perram JJ said at [37]:

As a matter of ordinary language we accept that a proposal which requires the addressee’s assent, such as an offer to buy a block of land, would not normally be regarded as a claim.  However, as the primary Judge considered, to deal with the problem at this level of generality would be to ignore context, which is of paramount importance in this area of the law.  His Honour said:

In the context of the scheme for bargaining provided by the FW Act, where agreements are made in resolution of claims pursued through bargaining, a proposal by one party to vary the outcome arrived at in a way which advances its interests is apt to be regarded as a further claim.  That is particularly so where the proposed variations are significant and suggest an attempt, as I consider is here the case, to strike a new bargain.  Both the ordinary industrial meaning of “claim” and the scheme of the Agreement to which I have referred, are consistent with the construction of “further claims” in cl 4 as encompassing a proposal made by a party to the Agreement to materially change the terms and conditions of employment set out in the Agreement other than in a manner already provided for by the Agreement.  Such a proposal is not merely a request or offer, it is also a “further claim” within the intended use of that expression in cl 4.

For reasons which follow, we agree with this passage, and his Honour’s conclusion on this aspect of the case.

92      Thus, any proposal by a party to an industrial agreement, subject to a no further claims clause, that would have the effect of varying or improving upon the outcomes as contained in the industrial agreement, in the advancement of that party’s interests, should be regarded as constituting a ‘further claim’.

93      A further contested proposition in connection with this ground of appeal, is whether the terms of a no further claims clause such as cl 7.2, has any application to an individual employee, as a member of an organisation, as opposed to a claim on behalf of all members or a class of members of an organisation.  There is nothing in the text of cl 7.2 of the Agreement to suggest that the no further claims commitment is limited only to the entire membership of the respondent or a particular group or class of its members.  The text of cl 7.2 is not confined in its scope to a particular subject matter. It extends to ‘matters contained in this Agreement’.

94      Read in its ordinary and natural sense, as it must be, whether the respondent, as a party to the Agreement, brings a ‘further claim’ (as that concept is discussed above), on behalf of all members, or a particular class of members, or only on behalf of a member, in our view, cl 7.2 applies.  We see no reason to distinguish between the number of persons whom a ‘further claim’ may be brought on behalf of, for the solemn commitment given by the respondent as reflected in cl 7.2, to have application.

95      Such a conclusion is consistent with the scheme for bargaining for and the making of industrial agreements under the Act. The objects of the Act in ss 6(aa), (ac), (ad), (b) and (c) provide for good faith collective bargaining with the aim of parties reaching agreement on fair terms and conditions of employment, with the assistance of the Commission, primarily through conciliation, and by arbitration if necessary.  It is of note that in particular, s 6(ag), provides that it is a principal object of the Act, to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within an industry and the employees in those enterprises.

96      Bargaining for an industrial agreement is to be undertaken in good faith, as specified in Division 2B of Part II of the Act. Importantly also, by s 41(4)(a) of the Act, on the registration of an industrial agreement, it extends to and binds all employees employed in a calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies.  This means in our view, that an industrial agreement extends to and binds each employee covered by the industrial agreement, as to all of its terms, not just some of them.  In this case, this includes cl 7 of the Agreement.  Employees obtain substantial benefits from industrial agreements in terms of improved wages and conditions of employment, job security and many other matters. In our view, they therefore must also be equally bound, as a part of the same bargain, by any burdens imposed by the industrial agreement, such as cl 7.

97      In Scull [No 2], Smith AP also reached the view at [65] that it was not open for the union in that case, to make a claim on Mr Scull’s behalf in excess of remuneration specified in the relevant awards and industrial agreements in that matter.  The Arbitrator had no power to deal with such a matter, as the rates of remuneration as specified in those industrial instruments were settled by the making of them.

98      Accordingly, in this case at first instance, to the extent that the learned Arbitrator reached the view that a claim by the respondent on behalf of only one member, Ms McFarlane, was not caught by cl 7.2 of the Agreement (see AB104), we consider that with respect, she fell into error.

99      Turning to the matter of the dispute and whether for the purposes of cl 7.2 of the Agreement, it constitutes a ‘further claim’ and therefore the latter acts as a prohibition, we do not consider that the dispute before the learned Arbitrator, as set out in the s 44(9) referral, seeks to improve or to modify the terms of cl 51, contrary to cl 7.2.

100   To a large extent this flows from our consideration of ground 2 and the conclusions reached in relation to that ground, that the essence of the dispute is one seeking to enforce the terms of cl 51 of the Agreement, and within the four corners of it.  Nothing in the s 44(9) referral seeks to alter or vary the terms of cl 51 or seeks to improve the outcomes contemplated by it.  The referral does not advance a claim by the respondent that the learned Arbitrator should grant relief based on industrial unfairness grounds. It does not seek to alter the operation of cl 51 in any material way, nor confer any additional benefit or entitlement on Ms McFarlane that is not otherwise conferred by the clause. 

101   Therefore, we are not persuaded that this ground of appeal is made out.

Conclusions

102   For the forgoing reasons we would uphold the appeal, quash the decision at first instance and dismiss the substantive application on the basis of want of jurisdiction.

103   As a final observation, as a result of the Industrial Relations Amendment Act 2024 (WA) which came into effect on 31 January 2025, after this appeal was heard by the Full Bench, the Minimum Conditions of Employment Act 1993 (WA) has been amended to insert a new Part 4A dealing with Flexible working arrangement requests.  Such requests include the location where work is to be performed. An employer may refuse such a request on reasonable business grounds. As a minimum condition of employment, the flexible working arrangement request provisions extend to and bind all employers and employees and are taken to be a term of all industrial instruments and will prevail over any less favourable terms. 

104   Additionally, amendments to the Act, effected by the IRLA Act in Subdivision 2 of Division 3A, confer jurisdiction on the Commission to conciliate and arbitrate disputes about flexible working arrangement requests and to make orders of various kinds, which orders are enforceable in the Court. Additionally, as a minimum condition of employment, a flexible working arrangement request is also enforceable in the Court. However, concurrent proceedings before both the Commission and the Court are prohibited.

105   We mention the above matters as the outcome of this appeal in relation to cl 51 of the Agreement, is unlikely to have any consequences beyond the circumstances of this particular case.