CITY OF CANNING INDUSTRIAL AGREEMENT 2025

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00265

DELIVERED : MONday, 5 May 2025

FILE NO. : AG 9 OF 2025

Applicant

AND

Western Australian Municipal, Clerical and Services Union (WASU), The Local Government Racing Cemetries Employees Union (LGRCEU)

Respondent

Catchwords : Industrial Law (WA) – Application to intervene in City of Canning Industrial Agreement 2025 – Application for union to be named as a party to the proposed agreement – Principles to be applied in an intervention application – Requirements under ss 41 and 41A(2) of the Industrial Relations Act 1979 (WA) – Application for leave to intervene granted

Legislation : Industrial Relations Act 1979 (WA)

Result : Application for leave to intervene granted

Representation:  (on the papers)

Applicant  Mr C Beetham (of counsel)

Respondents  Mr R Knox on behalf of the Western Australian Municipal, Clerical and Services Union (WASU)
Mr K Trainer on behalf of the Local Government Racing Cemetries Employees Union (LGRCEU)

Intervenor  Mr T Meagher on behalf of the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW)

Case(s) referred to in reasons:

Amalgamation of the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers and the Food Preservers’ Union of Western Australia Australian Union of Workers [2016] WAIRC 00966; (2017) 97 WAIG 148

City of Cockburn v the Western Australian Municipal Administrative Clerical and Services Union of Employees [2023] WAIRC 00787; 103 WAIG 1723

Fisher Catering Services Pty Ltd v Federated Liquor and Allied Industries Employees Union of Australia, Western Australia Branch, Union of Workers and Others (1994) 74 WAIG 2953

R v Holmes; Ex parte Public Service Association (NSW) (1977) 140 CLR 63

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

Reasons for Decision

1         On 22 January 2025, the City of Canning (COC) made a Form 1A Application (substantive application) to register the City of Canning Industrial Agreement 2025 (proposed agreement), under s 41 of the Industrial Relations Act 1979 (IR Act).

2         The substantive application is supported by two unions, both of whom are named as parties to the proposed agreement: the Western Australian Municipal, Administrative, Clerical and Services Union (WASU) and the Local Government, Racing and Cemeteries Employees Union of Western Australia (LGRCEU).

3         Although the proposed agreement is the result of negotiations that also involved the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW), it is neither a signatory to nor named as a party to the proposed agreement.

4         After the COC filed the substantive application, the CFMEUW on 30 January 2025, applied to the Commission under s 27(1)(k) of the IR Act to intervene in the hearing to register the proposed agreement (intervention application).

5         By its intervention application, the CFMEUW is seeking leave to intervene and be heard on the substantive application. This is so the CFMEUW may be afforded an opportunity to make submissions on:

 i. whether the proposed agreement should be registered under s 41 of the IR Act; and

 ii. if the proposed agreement is to be registered, whether the Commission should make an order under s 41(3) of the IR Act to include the CFMEUW as a party to the agreement.

6         The intervention application is opposed by the COC, the WASU and the LGRCEU. They each contend the intervention application should be dismissed and the Commission should proceed to hear the substantive application.

7         This decision deals with the intervention application.

Background to the application

8         On or around 5 April 2024, the COC commenced negotiations for an industrial agreement to replace the City of Canning Enterprise Agreement 2021 (2021 Agreement) which was made under the provisions of the Fair Work Act 2009 (FW Act).

9         As a result of legislative changes that came into force on 1 January 2023, the local government industry transitioned from the National industrial relations system to the State industrial relations system. A full description of these legislative changes was provided in City of Cockburn v the Western Australian Municipal Administrative Clerical and Services Union of Employees [2023] WAIRC 00787; 103 WAIG 1723 at [1]-[4] (City of Cockburn).

10      Under s 80BB of the IR Act, pre-existing industrial agreements made under the FW Act would continue to apply as new State instruments, until they are renewed or replaced.

11      The 2021 Agreement is cast in terms that are very similar to the provisions of the proposed agreement. It covers all the employees who are engaged in the classifications that are described in the 2021 Agreement as well as the WASU and the LGRCEU. 

12      The classifications that appear in Appendices 1 and 1.1 of the proposed agreement include employees who work ‘inside’ for the COC in administrative roles and COC employees who work ‘outside’, performing duties that include maintenance, horticultural, waste disposal and minor construction works.

13      The participants in the negotiations for the proposed agreement included representatives from the COC, the WASU, the LGRCEU and the CFMEUW (negotiating parties). The COC also allowed the CFMEUW to hold meetings with some of the employees who will be covered by the proposed agreement, even though the CFMEUW is not a party to the 2021 Agreement. 

14      During the negotiations, the CFMEUW raised the issue of whether it would be joined as a union party to the proposed agreement (representation issue). Although raised, it is reasonable to say this matter was not resolved between the negotiating parties.

15      Despite their disagreement on the representation issue, the negotiating parties have reached agreement on all the other terms of the proposed agreement, including rates of pay, wage increases and classification structure.

Section 72A proceedings

16      At the same time as negotiations for the proposed agreement were occurring, the WASU, LGRCEU and CFMEUW were involved in proceedings before a Commission in Court Session (CICS) under s 72A of the IR Act (72A proceedings).

17      The 72A proceedings involve three separate applications that have been joined and are being heard together by the CICS. The first of these is CICS 5 of 2023 in which the WASU is seeking an order under s 72A(2)(a) of the IR Act, that confirms the WASU has the right, to the exclusion of the CFMEUW, to represent the industrial interests of the outside employees, who work at the City of Rockingham.

18      Alternatively, the WASU in CICS 5 of 2023 seeks an order under s 72A(2)(c) that the CFMEUW does not have the right under the IR Act to represent the industrial interests of the outside employees, who work at the City of Rockingham.

19      The second, CICS 8 of 2023 is a responsive application from the CFMEUW which seeks an order under s 72A(2)(b) of the IR Act, in the event the CICS makes or proposes to make a finding, the CFMEUW does not have the right to represent the industrial interests of the outside employees, who work at the City of Rockingham.

20      By its application in CICS 8 of 2023, the CFMEUW seeks an order that it has the right to represent the industrial interests of outside employees who work at the City of Rockingham, who are employed as carpenters, painters and plant operators.

21      The third application, CICS 9 of 2023 is an application by the WASU in which the relief sought in CICS 5 of 2023, is also being pursued in relation to a list of local councils that includes the COC.

22      The LGRCEU is supporting the WASU in CICS 5 and 9 of 2023. The LGRCEU is opposing the CFMEUW in CICS 8 of 2023.

23      If the CFMEUW is not successful in the 72A proceedings, then it may lose its right to be a party to industrial agreements in the local government industry.

24      Noting the COC has an interest in the 72A proceedings, particularly as it is a party to CICS 9 of 2023, the COC has formed the view, that the outcome of the 72A proceedings has the potential to decide the issue of whether any of its employees, who are bound by the proposed agreement are:

i.  eligible to be members of the CFMEUW, thereby determining whether the CFMEUW has the right to become a party to the proposed agreement; or

ii. the WASU and LGRCEU should have the exclusive rights to represent the industrial interests of the outside employees who work for the COC.

25      It is on this basis, the COC says, that it is not at this stage, prepared to agree to the CFMEUW being a party to the proposed agreement, until after the 72A proceedings are determined.

26      For this reason, the COC has throughout the negotiations for the proposed agreement, maintained that its position on the representation issue is dependent upon what happens in the 72A proceedings, which are ongoing.

Previous applications to the Commission

27      During bargaining for the proposed agreement, two applications in which the representation issue was raised, were made to the Commission, under s 44 of the IR Act.

28      The first of these, C 25 of 2024 was made by the CFMEUW on 3 July 2024, while the negotiating parties were still bargaining for the proposed agreement (first application).

29      At the conclusion of a conciliation conference that was held on Monday 8 July 2024 in relation to the first application, Senior Commissioner Cosentino ordered:

THAT the conference be adjourned to a date to be fixed to consider the matter of the named parties to the replacement agreement, no earlier than the time that agreement on the balance of the terms of the replacement agreement are reached or the s 72A proceedings are determined.

30      The Senior Commissioner also made the following recommendation (recommendation):

THAT the parties continue to bargain with each other in good faith in relation to the terms and conditions of a replacement agreement, other than the question of who is to be named parties to such a replacement agreement.

31      Following the issuance of the recommendation, bargaining between the negotiating parties continued. On or around 19 December 2024, the negotiating parties reached agreement on the terms of the proposed agreement, save and except for an agreed position on the representation issue.

32      On 14 January 2025, the COC made an application to the Commission under s 44 of the IR Act: C 2 of 2025 (second application). The second application was also referred to Senior Commissioner Cosentino, who convened a conciliation conference that was held on 17 January 2025.

33      Each of the negotiating parties attended the conciliation conference. The representation issue was the only matter that was traversed during the conference.

34      I understand from an email that was sent to the negotiating parties following the conciliation conference that it was agreed the following would occur:

i. The COC, WASU and LGRCEU would sign a copy of the proposed agreement as soon as reasonably practical;

ii. Once the proposed agreement was signed, the COC would prepare and lodge an application to the Commission to register the proposed agreement;

iii. The COC agreed that it would copy the CFMEUW into the application to register the proposed agreement to ensure the CFMEUW had notice of the fact the application for registration had been made;

iv. The CFMEUW agreed to make any application to intervene in the COC’s application to register the proposed agreement within 7 days of the application being lodged; and

v. The first and second applications would be withdrawn.

35      Following the conciliation conference, the COC made the substantive application. Noting the context in which the first and second applications were withdrawn, it is reasonable to conclude the representation issue was not resolved between the negotiating parties during the conciliation conference and was in effect left for another day.

The substantive application

36      The substantive application seeks the registration of an industrial agreement, which:

i. subject to a limited number of exceptions, binds all the employees, who work for the COC in the classifications that are described in Appendix 1 of the proposed agreement; and

ii. names the WASU and the LGRCEU as joint parties to the proposed agreement with the COC.

37      In dealing with the substantive application, the Commission must decide whether the proposed agreement, satisfies the relevant criteria for the making of an industrial agreement under ss 41 and 41A of the IR Act.

38      To this end, a copy of the proposed agreement was provided to the Commission in accordance with regulation 55(1) of the Industrial Relations Commission Regulations 2005, together with a table that describes the changes the parties have made to the 2021 Agreement that are reflected in the terms of the proposed agreement.

Programming Orders

39      The intervention application was listed for a preliminary hearing that was held on 26 February 2025. After hearing from the parties, I issued programming orders in the following terms (programming orders):

(i) THAT the CFMEUW is to file a statement of the outcome it will seek in relation to the application for registration of the Agreement by 28 February 2025 (statement of outcome sought).

(ii) THAT the City, WASU and LGRCEU (parties) are to file a response to the CFMEUW’s application to intervene (intervention application) and the statement of outcome sought, in the prescribed form by 5 March 2025.

(iii) THAT the CFMEUW is to file any written submissions and evidence in support of the intervention application by 7 March 2025.

(iv) THAT the parties are to file any written submissions and/or evidence, in response to the CFMEUW’s submissions and/or evidence by 12 March 2025.

(v) THAT the CFMEUW is to file any written submissions in reply to the parties’ submissions by 19 March 2025.

(vi)  THAT the Commission will determine the intervention application on the papers.

(vii)  THAT the parties and the CFMEUW have liberty to apply on short notice.

Materials filed pursuant to the programming directions

40      In accordance with the programming orders, the CFMEUW filed its Statement of Outcome on 28 February 2025 (Statement of Outcome). Following this, the CFMEUW provided its Submissions on Intervention (CFMEUW’s Submissions), and a Witness Statement from Nathan Fisher (First Fisher Statement).

41      As required, the WASU filed its Submissions of the First Respondent on Intervention (WASU’s Submissions), together with a brief witness statement, from Senior Industrial Organiser, Paul Cecchini (Cecchini Statement).

42      The COC and the LGRCEU each filed outlines of submissions in relation to the intervention application. The LGRCEU in its submissions provided a useful chronology with attachments, which I had regard to when preparing these reasons.

43      On 19 March 2025, the CFMEUW filed a further outline of submissions (CFMEUW’s Reply Submissions), together with a supplementary witness statement from Mr Fisher (Second Fisher Statement).

44      After the Second Fisher Statement was filed, the WASU on 9 April 2025, made a Form 1 Application under s 27 of the IR Act, in which it was claimed the programming orders did not permit the CFMEUW to file any supplementary evidence (WASU’s Application).

45      By its application, the WASU requested the Commission refrain from taking the Second Fisher Statement into account when deciding the intervention application or referring to those parts of the CFMEUW’s Reply Submissions that relied upon this statement.

CFMEUW’s Statement of Outcome

46      To provide context to the outcomes sought, the CFMEUW, in its Statement of Outcome, raised several claims and contentions that are contested by the COC, the WASU and the LGRCEU.

47      In providing this context the CFMEUW as a precursor, contended the IR Act must be read consistently with its overall objects, as set out in section 6, including:

i. to promote goodwill in industry and enterprises within industry: s 6(a);

ii. to provide for rights and obligations in relation to good faith bargaining: s 6(aa);

iii. to promote the principles of freedom of association and the right to organise: s 6(ab);

iv. to promote collective bargaining and to establish primacy of collective agreements over individual agreements: s 6(ad);

v. to ensure all agreements registered under the Act provide for fair terms and conditions of employment: s 6(ae); and

vi. to encourage employers, employees, and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises: s 6(ag).

48      The CFMEU submitted the IR Act must also be read together with s 26, which requires the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, and to have regard to the interests of persons immediately concerned: Statement of Outcome paragraph 5.

49      It was contended the mandatory provision regarding the registration of agreements under s 41(2) of the Act, and the requirement for there to be a ‘genuine’ agreement, must be interpreted and applied in the pursuit and fulfilment of, the objects of the Act: Statement of Outcome paragraph 6.

50      The CFMEUW contended that when s 41(2) was drafted, it is unlikely the circumstances at issue in the present case were contemplated. More specifically, the CFMEUW claims the IR Act does not envisage employers inviting a union to participate in bargaining and allowing that union to participate in bargaining without, at any point, intending to register the agreement with that union as a party: Statement of Outcome paragraph 7.

51      The CFMEUW claims the IR Act contemplates unions and employers participating in bargaining and doing so with the expectation that if an in-principal agreement is reached, each of the unions would be a party to the agreement: Statement of Outcome paragraph 7.

52      In its Statement of Outcome, the CFMEUW in effect contended the COC had engaged in a course of conduct which misled the CFMEUW into believing that it would be joined as a party to the proposed agreement: Statement of Outcome paragraph 8.

53      The CFMEUW says that in the early stages of bargaining for the proposed agreement, the COC represented that if there were no orders preventing it from having coverage of employees in local government and there were employees who were or would be eligible for membership of the CFMEUW at the time the agreement was registered, the CFMEUW would be included as a named party to the agreement: Statement of Outcome paragraph 13.

54      The CFMEUW says that on this basis, the CFMEUW and its members who work for the COC did not take any industrial action and participated in the bargaining process in good faith. The CFMEUW contends that if this representation had not been made, the CFMEUW and its members would have likely embarked on different course of action and now be in a very different position (alleged misrepresentation): Statement of Outcome paragraph 14.

55      It was submitted the proposed agreement is vitiated by the alleged misrepresentation and the mandatory requirement to register an industrial agreement under s 41(2), has not come into effect because the statutory requirements and criteria, have not been complied with: Statement of Outcome paragraph 15.

56      The CFMEUW contended that in these circumstances, the Commission ought not register the proposed agreement because it is not a lawfully made, bona fide agreement, it is not ‘genuine’ and has not been made for a lawful purpose: Statement of Outcome paragraph 15.

57      It was contended that by registering the proposed agreement, the Commission would be condoning an approach that does not promote the objects of the IR Act and is contrary to the requirements of s 26. In addition, the CFMEUW claimed the registration of the proposed agreement has the potential to promote ‘subterfuge and deceit’: Statement of Outcome paragraph 8.

58      Having raised these matters, the CFMEUW in paragraph 16 of its Statement of Outcome said that it should be permitted to intervene in the substantive application to argue:

 a. The Commission should not register the proposed industrial agreement; or

 b. before registering the proposed agreement, the Commission should require the parties to vary it, to include the CFMEUW as a party for the purpose of giving clear expression to the true intention of the parties as permitted under s 41(3) of the IR Act.

The CFMEUW’s submissions in support of the intervention application

59      The CFMEUW submits that it should be permitted to intervene in the substantive application because it has members who work at the COC, whose interests will be directly affected by the proposed agreement: CFMEUW’s Submissions paragraphs 6-9.

60      Referring to its rules, the CFMEUW submitted that it was entitled to represent the industrial interests of employees at the COC who are employed as carpenters, painters and plant operators. It was submitted the CFMEUW has members, who work at the COC, that are employed in these roles: CFMEUW’s Submissions paragraph 7.

61      The CFMEUW submitted that if the Commission registers the proposed agreement, it will be prevented from exercising its rights under the IR Act to represent and protect the industrial interests of the COC’s employees who are eligible to join the CFMEUW, including those employees who are already members: CFMEUW’s Submissions paragraph 10.

62      The CFMEUW submitted that if the proposed agreement is registered to the exclusion of the CFMEUW, it will suffer a detriment because it will be prevented from representing its members, who are covered by the proposed agreement, in industrial matters before the Commission: CFMEUW’s Submissions paragraph 10.

63      It was submitted that as the CFMEUW’s members who work at the COC, have a direct interest in and will be affected by the registration of the proposed agreement, it follows the CFMEUW has a sufficient interest in the matter.

64      Referring to the decision of the High Court in R v Holmes; Ex parte Public Service Association (NSW) (1977) 140 CLR 63 at [78], the CFMEUW submitted that where a union has relevant coverage under its eligibility rule, there can be no doubt that it has a substantial interest sufficient to sustain its intervention: CFMEUW’s Submissions paragraph 4.

65      It was submitted that a further consideration the Commission should have regard to is that the CFMEUW’s members and delegates, were involved in bargaining for the proposed agreement. It was contended their involvement in the negotiations demonstrates the CFMEUW has a direct and sufficient interest that would support the CFMEUW being granted leave to intervene: CFMEUW’s Submissions paragraph 12.

66      The CFMEUW submitted that despite a mandatory obligation under s 41(2) of the IR Act to register an industrial agreement, the Commission must still be satisfied the proposed agreement has been lawfully made, is a bona fide agreement, and has not been made for an unlawful purpose. To this end, the CFMEUW says it should be heard on this point: CFMEUW’s Submissions paragraphs 28-29.

67      It was submitted the CFMEUW should also be given permission to intervene, to make submissions on its exclusion from the proposed agreement, despite the representations it says the COC made on the representation issue, which would allow the CFMEUW to become a party: CFMEUW’s Reply Submissions paragraph 25.

The First Fisher Statement

68      In his first statement, Mr Fisher said that when bargaining for the proposed agreement commenced, he contacted the COC in an email dated 8 December 2023 and requested the CFMEUW be included in correspondence regarding negotiations, be invited to attend bargaining meetings and be given access to CFMEUW members for the purpose of drafting a log of claims: First Fisher Statement paragraph 4.

69      Mr Fisher stated that on 11 December 2023, he received a reply email from Scott Roffey (Roffey), who works for the COC in role of ‘Service Lead People and Performance’, which confirmed he would be allowed to hold discussions with COC employees who are members or ‘potential members’ of the CFMEUW, during a scheduled entry to the COC’s Operations Depot on 19 December 2023: First Fisher Statement paragraph 5.

70      Mr Fisher says that on 23 January 2024, he wrote to Mr Roffey requesting a meeting with CFMEUW members and potential members to discuss the upcoming negotiations for the Agreement and to finalise the CFMEU’s log of claims: First Fisher Statement paragraph 5.

71      Following this, Mr Fisher said that on 31 January 2024, Mr Roffey confirmed the COC would provide a space so he could meet with CFMEUW members and potential members on 6 February 2024. Mr Fisher said the meeting went ahead as planned: First Fisher Statement paragraphs 7-8.

72      Mr Fisher stated that following the meeting, he wrote to Mr Roffey on 7 February 2024, to confirm the CFMEUW’s log of claims was close to being finalized and endorsed. Mr Fisher said he requested a further meeting to be held on 13 February 2024 for the final endorsement of the CFMEUW’s log of claims: First Fisher Statement paragraph 9.

73      Mr Fisher said that on 8 February 2024, Mr Roffey confirmed that a meeting with CFMEUW members and potential members on 13 February 2024, would be allowed to proceed. Mr Fisher said the meeting went ahead as planned and the CFMEUW’s log of claims was endorsed by the employees who attended the meeting. Mr Fisher said he sent the CFMEUW’s log of claims to Mr Roffey, the same day: First Fisher Statement paragraph 10-11.

74      In his statement, Mr Fisher said that bargaining for the proposed agreement commenced on 5 April 2024. He said he attended every bargaining meeting except one that was held while he was on leave. Mr Fisher said that CFMEUW delegate, Eric Chee Lit Tan attended this meeting in his absence: First Fisher Statement paragraph 12.

75      Mr Fisher says that on 9 May 2023, he attended a bargaining meeting at the COC with Andrew Johnson from the LGRCEU and Mr Cecchini from the WASU. Mr Fisher said employee bargaining representatives who work for the COC were also present: First Fisher Statement paragraph 13.

76      He said it was agreed the three unions would maintain a unified position and hold meetings with employees in the week beginning 13 May 2024 to discuss the COC’s response in bargaining: First Fisher Statement paragraph 13.

77      Mr Fisher stated the COC did not at stage take issue with the CFMEUW being a bargaining representative or a participant in bargaining, for the proposed agreement. He said this was subject to the CFMEUW continuing to have a right to represent the industrial interests of one or more of the COC’s employees: First Fisher Statement paragraph 14.

78      In his statement, Mr Fisher described the categories of employees who work at the COC, which he claims the CFMEUW is entitled to represent. Mr Fisher attached images of COC buildings and facilities to his statement, which he suggested, are repaired and maintained by the carpenters and painters, who are employed by the COC.

COC’s Submissions

79      In paragraph 5 of the City of Canning Submission in Response to CFMEUW Submissions on Intervention and Statement of Outcome Sought (COC’s Submissions), the COC submitted the intervention application should be refused for three reasons:

(a) First, the CFMEUW has not discharged its onus to prove that it has a sufficient interest in the application for the registration of the proposed agreement. It was submitted that when scrutinized, the intervention application dissolves to a series of assertions unsupported by the evidence.

(b) Second, the first alternative order sought by the CFMEUW in the Statement of Outcome, (that the proposed agreement should not be registered), is premised on scandalous, unparticularized allegations of fraud, deceit, subterfuge and misrepresentation, which should be withdrawn. It was submitted the relief sought should be summarily refused.

(c) Third, that the Commission does not have the power to grant the second alternative order sought by the CFMEUW; that the proposed agreement be varied to include the CFMEUW as a party.

80      The COC submitted that the intervention application is premised on two factual claims. The first is that the CFMEUW has members at the COC. The second is that the COC has employees who are eligible to become members of the CFMEUW: COC’s Submission paragraph 6.

81      It was submitted that neither claim is supported by evidence. The COC contended the CFMEUW has led no evidence from any member, or from any employee said to be eligible to become a member. Rather, the CFMEUW has adopted the approach of making assertions regarding its membership that is supported by hearsay evidence: COC’s Submission paragraph 7.

82      The COC submitted that when considering whether the CFMEUW has proved its case in the intervention application, the Commission should bear in mind that it was open to the CFMEUW to put on evidence as to its membership, but it chose not to do so: COC’s Submission paragraph 9.

83      In paragraph 12 of the COC’s Submissions, it was contended the CFMEUW had alleged the COC represented:

…that, should there be no orders preventing it from having coverage of employees in local government, and there were employees who were eligible for membership of the CFMEUW at the time of registration of the agreement, the CFMEUW would be included as a named party to the agreement.

84      The COC said the CFMEUW had alleged that the representation was made, that it was false, and that ‘the proposed agreement is vitiated by this misrepresentation:’ COC’s Submissions paragraph 13.

85      The COC submitted that its position was and has always been, that the issue of whether the CFMEUW should be a party to the proposed agreement would be informed by the outcome of the s 72A proceedings: COC’s Submissions paragraph 16.

86      In Appendix A of the COC’s Submissions, the COC provided its responsive description of the assertions the COC said were made by the CFMEUW. More specifically, the COC:

(a) stated on 27 June 2024, 1 July 2024, and 5 July 2024, that the CFMEUW’s participation in bargaining was conditional on the 72A proceedings being resolved in the CFMEUW’s favour and, to date, this has not occurred;

(b) stated on 27 June 2024, 1 July 2024, 5 July 2024, 14 January 2025, and 17 January 2025, that the CFMEUW could be named a party to the proposed agreement if the 72A proceedings are resolved in the CFMEUW’s favour and, to date, this has not occurred;

(c) repeatedly outlined its position to the CFMEUW objecting to it being included as a named party to the proposed agreement, including by;

(i) responding to the first application on 5 July 2024; and

(ii) seeking a conciliation conference by making the second application on 14 January 2025.

(d) has not been a party to any previous industrial instrument where the CFMEUW (or its federal counterpart) was also a party. The “status quo” therefore is that the CFMEUW should not be a party to the proposed agreement; and

(e) has not been provided with any evidence from the CFMEUW to support its assertion that there are employees at the COC who will be bound by the proposed agreement upon registration, who are members of or who are eligible to be members, of the CFMEUW.

WASU’s Submissions

87      In paragraph 11 of its outline of submissions, the WASU characterised the CFMEUW’s principal contentions in support of its intervention application as:

i. the CFMEUW has an indirect interest by dint of its purported constitutional coverage of certain employees who are employed by the COC, which the proposed agreement will extend to and bind and that it has enrolled these employees as members; and

ii. the application to register the proposed agreement would directly affect the CFMEUW’s right to represent and protect the industrial interests of its members who work at the COC.

88      In relation to these contentions, the WASU submitted the CFMEUW had provided no evidence to show that it had any members who work at the COC. In short, the WASU submitted that without evidence the CFMEUW has members who work at the COC, the CFMEUW could not demonstrate it had a direct interest in the substantive application: WASU’s Submissions paragraphs 12-13.

89      The WASU submitted that without evidence of membership, the CFMEUW could not demonstrate that it had a sufficient indirect interest that would be affected by the registration of the proposed agreement either: WASU’s Submissions paragraph 21.

90      The WASU took issue with the level of involvement the CFMEUW claims it has in other local government industrial agreements, to the extent that it establishes an indirect interest with broader industry wide impacts, sufficient to grant the intervention application: WASU’s Submissions paragraphs 19-20.

91      In its submissions, the WASU denied there was any substance to the CFMEUW’s alleged misrepresentation claim. While the WASU does not cavil with the argument that an industrial agreement cannot be registered if it has been made by fraud or misrepresentation, the WASU denies that this had occurred: WASU’s Submissions paragraph 24.

92      In relation to the representation issue the WASU submitted that it was agreed at the conciliation conference that was held on 17 January 2025, the named parties to the proposed agreement could apply to register the proposed agreement: WASU’s Submissions paragraph 34.

93      It was also submitted the named parties would seek to add the CFMEUW as a named party if in the 72A proceedings, it is decided the CFMEUW can cover any local government employees in Western Australia: WASU’s Submissions paragraph 34.

94      The WASU submitted the CFMEUW should not be permitted to intervene in the substantive application so the proposed agreement can be amended to join the CFMEUW as a party. It was argued that s 41(3) of the IR Act does not operate to allow the altering of the content of an industrial agreement to include a union as a party, which did not make the agreement: WASU’s Submissions paragraph 40.

95      The WASU raised other concerns regarding the CFMEUW’s intervention application, including that it was an abuse of process and that it would unduly delay the speedy and efficient determination of the substantive application.

The Cecchini Statement

96      Mr Cecchini stated that he recalls Mr Fisher attended bargaining meetings for the negotiation of the proposed agreement.  He said he remembers Mr Fisher pressing a claim for the CFMEUW to be a named as a party to the proposed agreement on a few occasions during bargaining: Cecchini Statement paragraphs 4-5. 

97      He said Mr Roffey had responded by saying the COC did not want the CFMEUW to be a party to the proposed agreement until the s 72A proceedings had been determined: Cecchini Statement paragraph 6.

98      Mr Cecchini said the position he took on behalf of the WASU was that if the COC did not oppose the CFMEUW being a named party to the proposed agreement, then the WASU would not hold up the finalisation of the proposed agreement over that one issue: Cecchini Statement paragraph 8.

99      He said that if the COC did not want the CFMEUW as a named party to the proposed agreement, the WASU would support this: Cecchini Statement paragraph 9.

100   Mr Cecchini said the WASU was not opposed to adding the CFMEUW as a party to the proposed agreement if the COC in the s 72A proceedings, determined the CFMEUW had coverage of local government employees. He said the WASU accepted this when it was proposed by Mr Roffey, during a meeting that was held on 30 May 2024: Cecchini Statement paragraph 10.

101   The balance of Mr Cecchini’s statement, described matters that were discussed in the conciliation conference that Senior Commissioner Cosentino convened on 17 January 2025.  I do not however consider that I can have regard to these parts of his statement because they describe communications that were made without prejudice in a conciliation conference.

LGRCEU’s response to the intervention application

102   The outline of submissions on the intervention application, which the LGRCEU filed on 13 March 2025 (LGRCEU’s Submissions), broadly followed and adopted the arguments that were made by the WASU and the COC.

103   While the LGRCEU did not agree with the description of what the CFMEUW said it had secured through its involvement in bargaining for the proposed agreement, the LGRCEU acknowledged in its submissions, that there were three unions involved in the negotiations for the proposed agreement and that all three regularly attended bargaining meetings: LGRCEU’s Submissions paragraph 4.

104   The LGRCEU disputes there was any misrepresentation over the representation issue. Rather it says there was an absence of an agreement between the CFMEUW and the COC. It was submitted that once the CFMEUW’s alleged misrepresentation is rejected, the Commission must register the proposed agreement.

105   The LGRCEU submitted that joining the CFMEUW as a party would fundamentally change the terms of the proposed agreement. It was submitted that adding the CFMEUW as a party is not a clarification, when there is evidence that shows the parties applying to register the proposed agreement did not intend the CFMEUW to be a party: LGRCEU’s Submissions paragraphs 82-84.

Principles to be applied when determining an intervention application

106   The power to grant leave to intervene in a matter is set out in s 27(1)(k) of the Act, which relevantly provides:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

…

(k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter; …

107   The principles to be applied when deciding if an intervention application should be granted are well settled. They were recently discussed and followed in City of Cockburn at [45]-[46].

108   The Full Bench in City of Cockburn noted that the leading High Court authority is Re Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division (1985) 155 CLR 513 (Re Ludeke).

109   Re Ludeke was discussed along with other cases by a previous Full Bench of the Commission in Amalgamation of the Australian Workers’ Union, West Australian Branch, Industrial Union of Workers and the Food Preservers’ Union of Western Australia Australian Union of Workers [2016] WAIRC 00966; (2017) 97 WAIG 148 (Re AWU). 

110   The Full Bench in Re AWU at [17] to [21] observed as follows:

17 The principles for the Commission to consider when determining whether to exercise its discretion to allow a person to intervene in proceedings pursuant to its power to do so under s 27(1)(k) of the IR Act, in particular the determination whether a person has, in the opinion of the Commission, a sufficient interest in a matter that that person should be heard, were considered by Sharkey P in Gairns v The Royal Australian Nursing Federation Industrial Union of Workers, Perth (1989) 69 WAIG 2343. In Gairns the substantive application was an application brought before the President's original jurisdiction under s 66 of the IR Act for an interpretation of union rules. The federal nursing union, the Australian Nursing Federation, sought intervention in the proceedings. So, too, did federal and state Academic Unions. President Sharkey found that the most helpful dissertation of principles relating to intervention was set out in Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513; (1985) 13 IR 86.

18 In Ludeke, the matter before the High Court was an application by the Customs Officers' Association of Australia, Fourth Division to make absolute an order nisi for a prerogative writ to quash an order made by Justice Ludeke that leave be granted to the Administrative and Clerical Officers' Association, Australian Government Employment (ACOA) to intervene in the matter subject to limitation on certain questions it raised in its submissions in a demarcation dispute between that union and the ACOA. Chief Justice Gibbs at (519) - (520), with whom Dawson J agreed, observed:

The critical question is whether the prosecutor will be denied natural justice if it is allowed to intervene in ACOA's application only to the limited extent allowed by Ludeke J. It may be said immediately that it is clear that notwithstanding the wide discretion in matters of procedure given to the Commission by s. 40(1) of the Act, the Commission is bound to observe the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ((1969) 122 C.L.R. 546, at p. 552); Reg. v. Moore; Ex parte Victoria ((1977) 140 C.L.R. 92, at pp. 101-102); Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) ((1978) 140 C.L.R. 615, at p. 620). That means that a person whose rights will be directly affected by an order made by the Commission must be given a full and fair opportunity to be heard before the order is made. That requirement will not necessarily be satisfied if the Commission relies only on the fact that the person concerned has been heard on the same question by the same member of the Commission on a previous occasion. In general, the rules of natural justice are not satisfied unless the opportunity to be heard is afforded in the proceeding in question, although the fact that there had been an earlier hearing would be relevant in determining what constituted a full opportunity to be heard. However, natural justice does not require that everyone who may suffer some detriment as an indirect result of an order of the Commission is entitled to be heard before the order is made. Orders made by the Commission may affect many members of the community who are not parties to the proceedings in question but that does not mean that any member of the community who will be indirectly affected by an order of the Commission has a right to be heard in those proceedings. It has been held that a person who is not a party to a dispute, but who may nevertheless be affected, indirectly and consequentially, by an order made in settlement of the dispute is not entitled to be heard before the matter is determined: Reg. v. Moore; Ex parte Victoria; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.).

19 From these observations of Gibbs CJ in Ludeke, the following principles emerge:

(a) Every person whose rights will be directly affected by an order must be given a full and fair opportunity to be heard; and

(b) The principles of natural justice do not require that everyone who may suffer a detriment as an indirect result of an order or who is indirectly affected is entitled to be heard before the order is made.

20 Justice Mason in Ludeke made similar observations. He observed that an interest which in its nature is inadequate to support intervention in legal proceedings in a court may be sufficient to support intervention in a matter of industrial arbitration before the Commission (523). His Honour found that if an organisation has a substantial interest sufficient to sustain an application to the court for prohibition then, generally speaking, it is desirable that the Commission should recognise that interest, subject to discretionary considerations, as a basis for intervention (525). In making this observation, his Honour had regard to the decision in R v Holmes; Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63 where it was found that where the prosecutor had relevant coverage under its eligibility rule there could be no doubt that it had a substantial interest sufficient to sustain its intervention and that a lack of coverage would result in the prosecutor's interest being much more tenuous (525). Justice Mason in Ludeke also said (527):

Indeed, the principal object of intervention is to ensure that all interested parties will participate in a single resolution of a controversy instead of being relegated to a resolution of the controversy in several proceedings. It is the attainment of this object that justifies intrusion into the litigant's right or interest in pursuing his proceedings as he chooses to constitute them.

21 Justice Brennan said that he generally agreed with the judgment of the Chief Justice. His Honour then went on to add that in determining whether a repository of a statutory power is bound to hear a person who is not directly involved in proceedings regard must be had (528):

to all the circumstances of the case, including the language of the statute, the nature of the power and of the body in which the power is reposed, the nature of the proceedings, the procedural rules that govern the proceedings (especially any provision for intervention by a person not directly involved in them), the interests which are likely to be affected, directly or indirectly, by the exercise of the power and the stage the proceedings have reached when the repository of the power learns of those interests. Generally speaking, a decision that will affect adversely a person's legal rights or his proprietary or financial interests or his reputation ought not to be taken without first giving him an opportunity to be heard provided such an opportunity can be reasonably given (F.A.I. Insurances Ltd. v. Winneke ((1982) 151 C.L.R. 342, at pp. 411-412)), even if that person is not directly involved in the proceedings which lead to the making of the decision: cf. Reg. v. Town and Country Planning Commissioner; Ex parte Scott ([1970] Tas. S.R. 154, at pp. 182-187; 24 L.G.R.A. 108, at pp. 137- 141). But that is not an absolute rule.

111   The Full Bench decision in City of Cockburn which referred to the principles set out, involved a case where the CFMEUW was able to establish, that it had a sufficient indirect interest, to be given leave to intervene in a case that involved a local council, the registration of an industrial agreement and the same union parties in this matter: (City of Cockburn at [47]).

112   I am also mindful the decision in City of Cockburn centred on whether two provisions in a local government industrial agreement, to which the CFMEUW was not a party, were contrary to the IR Act. In this matter, the CFMEUW was able to establish that it had an interest that was sufficient for it to be granted leave to appear as a contradictor.

113   The Full Bench in City of Cockburn accepted that it was appropriate to permit the CFMEUW to intervene, because the effect of the legal questions to be decided, may have had broader application, thereby indirectly affecting the interests of the CFMEUW: (City of Cockburn at [47]).

Industrial agreements under Division 2B of the IR Act

114   Sections 41 and 41A are contained in Division 2B of the IR Act, which I have extracted below:

 41. Industrial agreements, making, registration and effect of

  (1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of any related disputes, disagreements, or questions may be made between an organization or association of employees and any employer or organization or association of employers.

  (1a) An agreement may apply to a single enterprise or more than a single enterprise.

  (1b) For the purposes of subsection (1a) an agreement applies to more than a single enterprise if it applies to –

   (a) more than one business, project or undertaking; or

   (b) the activities carried on by more than one public authority.

  (2) Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission must register the agreement as an industrial agreement.

  (3) Before registering an industrial agreement, the Commission may require the parties to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties.

  (4) An industrial agreement extends to and binds –

   (a) all employees who are employed –

    (i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and

    (ii) by an employer who is –

     (I) a party to the industrial agreement; or

     (II) a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement;

    and

   (b) all employers referred to in paragraph (a)(ii), and no other employee or employer, and its scope must be expressly so limited in the industrial agreement.

  (5) An industrial agreement operates –

   (a) in the area specified in the agreement; and

   (b) for the term specified in the agreement.

  (6) Notwithstanding the expiry of the term of an industrial agreement, it continues in force in respect of all parties to the agreement, except those who retire from the agreement, until a new agreement or an award in substitution for the first-mentioned agreement has been made.

  …

 41A Which industrial agreements must not be registered under s.41

  (1) The Commission must not under section 41 register an agreement as an industrial agreement unless the agreement –

   (a) specifies a nominal expiry date that is no later than 3 years after the date on which the agreement will come into operation; and

   (b) includes any provision specified in relation to that agreement by an order referred to in section 42G; and

   (c) includes an estimate of the number of employees who will be bound by the agreement upon registration.

  (2) The Commission must not under section 41 register an agreement as an industrial agreement to which an organisation or association of employees is a party, unless the employees who will be bound by the agreement upon registration are members of, or eligible to be members of, that organisation or association.

Issues to be determined in the substantive application

115   In dealing with the substantive application, the Commission must decide if the pre-requisites to register an industrial agreement under Section 41 of the IR Act have been met, which will include a finding on whether an agreement with respect to an industrial matter or for the prevention or resolution under the IR Act, of any related disputes disagreements or questions under the IR Act has been reached.

116   I also consider the parties will need to make submissions on whether the proposed agreement describes with sufficient clarity, the callings of the employees who will be bound by the proposed agreement and which organization has the right to represent the employees who the proposed agreement ‘extends to and binds.’ 

117   I raise this issue because of the requirement under s 41A(2) of the IR Act.

Requirements under s 41A

118   Section 41A(2) of the IR Act makes it clear that the Commission must not register an agreement as an industrial agreement, to which an organisation or association of employees is a party, unless the employees who will be bound by the agreement upon registration, are members of or eligible to be members of that organisation or association.

119   It appears that because an industrial agreement extends to and binds all the employees who are employed in the classifications to which an industrial agreement applies, the union party/parties to a proposed industrial agreement, must be able to show the employees who are bound by the agreement are either:

i. members of the union/unions that are parties to the proposed agreement upon registration; or

ii.  are eligible to be members of the union/unions that are parties to the proposed agreement.

120   It appears the reason for the inclusion of this requirement under s41A(2) of the IR Act, is because once an industrial agreement is registered, it has the effect of closing the gate to the making of any other agreements that:

i. apply to the employees who are employed in the classifications that are contained in the agreement: ss 41(4);

ii. apply for the term specified in the industrial agreement: ss 41(5); and

iii. apply before a replacement agreement is made or the parties to the industrial agreement retire from it: s 41(6).

121   I therefore consider that when determining the substantive application, I will need be satisfied the employees, who work in the callings or classifications that are described in the proposed agreement, are either members of or are eligible to be members of the WASU and the LGRCEU.

Consideration – Intervention application

122   In this matter, the Commission is only concerned with whether the CFMEUW has a sufficient interest to justify the CFMEUW being granted permission to intervene in the substantive application.

123   The Commission does not have to reach a conclusion on whether the CFMEUW, if it is granted permission to intervene, will ultimately be successful in the arguments it is proposing to make in the substantive application. Rather the Commission must only be satisfied the CFMEUW has a sufficient interest to make those arguments; see Fisher Catering Services Pty Ltd v Federated Liquor and Allied Industries Employees Union of Australia, Western Australia Branch, Union of Workers and Others (1994) 74 WAIG 2953 at p. 2956

124   In reaching my decision in the intervention application, I have had regard to the submissions from the CFMEUW, the WASU, the LGRCEU and the COC. I have also considered the terms of the proposed agreement, the contents of the First Fisher Statement and the Cecchini Statement.

125   I have also reviewed the documents that were attached to the COC’s submissions. These documents include the various emails Mr Roffey sent to Mr Fisher, which confirm the COC was prepared to allow Mr Fisher to hold discussions with some of its employees who work in the ‘Flemming Avenue Operations Centre.’

126   The COC’s documents also include Mr Roffey’s letter to the CFMEUW dated 27 June 2024, which concluded with the following paragraph:

The City will continue to bargain with the CFMEUW in respect of its other claims for the proposed agreement as it has done since bargaining commenced.

127   I have not had regard to the Second Fisher Statement or those parts of the CFMEUW’s Reply Submissions that refer to this statement. There was in my view, sufficient material before me to reach a decision on the intervention application, without the need to consider the contents of the Second Fisher Statement.

128   By reaching this conclusion, I have addressed the objection that was raised in the WASU’s Application, to the Second Fisher Statement.

Effect of registration

129   I am satisfied that if the proposed agreement is registered, it will, on its current terms, significantly hamper the CFMEUW in its efforts to represent the industrial interests of any COC employee who may be a CFMEUW member or who is eligible to become one.

130   I am satisfied the registration of the proposed agreement will remove the standing of the CFMEUW to represent any members who work at the COC in proceedings before the Commission or in enforcement proceedings before the Industrial Magistrates Court.

131   More significantly the CFMEUW will, following registration of the proposed agreement and because of s 41(4) of the IR Act, lose any right that it may have to become a party to an industrial agreement that binds the COC’s employees, who work in classifications, which the CFMEUW may cover, for the duration of the proposed agreement.

132   There is nothing in the proposed agreement that confirms the named parties to the proposed agreement, will following registration, accede to a request from the CFMEUW for it to be joined as a party, even if the result in the 72A proceedings confirms, the CFMEUW is able to represent the industrial interests of the employees who work at the COC.

133   As indicated earlier, the 72A proceedings are ongoing. Until a final decision in that matter is made, the representation issue in so far as it relates to the COC, the CFMEUW and any affected employees, remains unresolved.

134   The effects that I have described in the preceding paragraphs [128] - [132], on the respective rights of the CFMEUW and the employees who work at the COC, who may be either members of or eligible to be members, are substantial.

135   It is my view that the legal effects of the proposed agreement if it is registered, are relevant to determining whether the CFMEUW should be afforded the right to be heard in the substantive application.

CFMEUW is a negotiating party

136   In reaching a decision on the intervention application, it is important to note that this matter very much turns on its own facts and that my assessment of the CFMEUW’s interests in the present case, was influenced by the CFMEUW’s involvement as a negotiating party in bargaining for the proposed agreement. 

137   I accept that an official from the CFMEUW and a workplace delegate (Mr Chee Lit Tan), who took part in the negotiations, contributed in some way to the proposed agreement. I accept the negotiating parties were aware the CFMEUW intended to become a party to the proposed agreement. I am also satisfied the three unions in their negotiations for the proposed agreement, had agreed to work in a ‘unified’ way.

138   After permitting the CFMEUW to hold meetings with some of its employees, albeit in a discrete section of the workplace, recognizing the CFMEUW’s role as a bargaining agent for some COC employees by allowing a CFMEUW official and a workplace delegate to take part in negotiations, I consider that it is too late to suggest the success of the intervention application should now turn on the provision of hard evidence of the CFMEUW’s membership at the COC.

139   There is an inconsistency in the position the COC has adopted in relation to the intervention application. The suggestion the CFMEUW’s right to be heard, should now be conditional upon proof of membership sits at odds with the COC accepting the CFMEUW had a part to play in negotiations and by allowing an official of the CFMEUW to hold meetings with COC employees.

140   While direct evidence from the CFMEUW regarding its membership at the COC would have put the issue of whether it has a sufficient interest in the substantive application beyond all doubt, I am, because of the involvement of a CFMEUW workplace delegate, in bargaining for the proposed agreement, prepared to infer the CFMEUW has at least one member who works at the COC, with a direct interest sufficient to grant the CFMEUW a right to be heard.

141   I find the WASU’s and LGRCEU’s objections to the intervention application, which rely upon the CFMEUW having to demonstrate that it has membership at the COC, are similarly problematic, particularly after both unions agreed to take part in bargaining for the proposed agreement, alongside the CFMEUW.    

142   If the CFMEUW had not been a negotiating party, played no role in the negotiations for the proposed agreement or was only seeking to leave intervene so that it could become a party, to the proposed agreement, when it had played no part in bargaining, I would have been less inclined to accede to the CFMEUW’s intervention application.

143   However, and as the CFMEUW participated in negotiations for the proposed agreement as a negotiating party, committed resources to the negotiations for the proposed agreement and the CFMEUW’s interests were represented, in at least one bargaining meeting by a CFMEUW workforce delegate, I am satisfied the CFMEUW has an interest in the substantive application, sufficient to grant the intervention application.

144   When the role the CFMEUW has played in bargaining is considered together with, the legal effects the registration of the proposed agreement, will have on the interests of the CFMEUW and any of its members who may work at the COC, it is, having regard to the principles referred to in Re AWU, appropriate for the CFMEUW be given permission to intervene.

145   In making my decision to grant the intervention application, I have at this stage and for the avoidance of any doubt, made no findings in relation to either the alleged misrepresentation or the representation issue.

146   In dealing with the intervention application, I have not delved into the issue of whether the CFMEUW has constitutional coverage over any of the classifications of the COC’s employees who are bound by the terms of the proposed agreement either. There was no need to.

147   The involvement of the CFMEUW in bargaining was in and of itself sufficient to give rise to an interest to intervene, particularly where the COC has suggested the CFMEUW might yet be made a party to the proposed agreement if the outcome in the 72A proceedings goes the CFMEUW’s way. This does not however mean the issue of constitutional coverage will not be a live issue in the substantive application.

Matters to be addressed in the substantive application

148   Having granted permission to the CFMEUW intervene in the substantive application, I expect to hear from both the parties to the proposed agreement and the CFMEUW, on whether the proposed agreement has been validly made and meets the requirements ss 41 and 41A of the IR Act.

149   This will require the parties to give some thought to what these provisions of the legislation require and how they fit within the context of the IR Act as a whole. In my view, there are potential implications from a decision on the construction and application of the relevant provisions of the IR Act to the present case, that apply more broadly.

150   I also consider that evidence on the number of members the WASU, the LGRCEU and the CFMEUW each respectively have and the classifications or callings in which they are employed, may have some bearing on the matters that I will be required to decide in the substantive application.

151   I have my doubts the Commission has the power to amend the proposed agreement to join the CFMEUW as a party to the proposed agreement. Noting the decision of the Full Bench in City of Cockburn, at [169] – [170], I am not at this stage convinced the Commission has the power under s 41(3) of the IR Act, to make an amendment in the form the CFMEUW has proposed.

152   It also does not appear from the materials filed, that the negotiating parties reached a final agreement on how the representation issue is to be resolved at the COC, to the extent that I could vary the proposed agreement in the terms the CFMEUW is suggesting.

Conclusion

153   For all the reasons I have provided in the preceding paragraphs, I have determined the CFMEUW should be given permission to intervene in the substantive application.

154   Before scheduling the matter for further hearing, it is my view that it would be in the best interests of the parties to the substantive application and the intervenor, to attend a conciliation conference that I will convene under s 32 of the IR Act.

155   To this end I will arrange for my Associate to contact the parties for their unavailable dates so that a conciliation conference in relation to the substantive application can be scheduled as soon as practicable.