Appeal against a decision of the Industrial Magistrate in matter number M 170/2021 given on 22 March 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2023 WAIRC 00986

DELIVERED : FRIDay, 22 December 2023

FILE NO. : FBA 1 OF 2023

Appellant

AND

Director General as the Employing Authority, Department of Justice

Respondent

ON APPEAL FROM:

Jurisdiction : Industrial Magistrates Court

Coram : Industrial Magistrate O’Donnell

Citation : [2023] WAIRC 00149 (Reasons for Decision)

File No : M 170 of 2021

CatchWords : Industrial Law (WA) – Appeal against decision of the Industrial Magistrate – Alleged contravention of clause 36A(4) of the Public Service Award 1992 – Officers’ entitlements to representation – Alleged failure to recognise representative capacity during disciplinary processes – What is correct construction of clause 36A(4) – Structure of clause – Meaning of ‘Representative’ – Clause provides process for invoking representation obligations – Clause does not create distinct obligation – Claimed contravention of clause 36A(4) bound to fail – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA) 

Result : Appeal dismissed

Representation:

Counsel:

Appellant : The Civil Service Association of Western Australia Incorporated

Respondent : State Solicitor's Office

Solicitors:

Appellant : Ms J Moore of counsel

Respondent : Mr J Carroll of counsel

Case(s) referred to in reasons:

Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595

Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28; [1998] 1 WLR 896

Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18, (1925) 36 CLR 60

Quasar Resources Pty Ltd v APG Aus No 3 Pty Ltd [2023] WASCA 171

Re Harrison; Ex parte Hames [2015] WASC 247

Reardon v Gaetano Anthony Lagana (ABN 85 867 757 829) T/A Stratton Park Pharmacy [2019] WAIRC 00889; (2020) 100 WAIG 243

The Civil Service Association of Western Australia Incorporated v Director General as the Employing Authority, Department of Justice 2023 WAIRC 00793; (2023) 103 WAIG 1715

Reasons for Decision

THE FULL BENCH:

1         On 1 January 2021, a new clause about officers’ entitlements to representation was inserted by consent into the Public Service Award 1992: ([2020] WAIRC 00950; (2021) 101 WAIG 26) (representation rights clause). The representation rights clause says:

36A. ‑ REPRESENTATION RIGHTS

Officer Entitlement to Representation

(1) For the purposes of representation under this clause, significant matters are discipline, performance, officer entitlements, fitness for work and return to work.

(2) In respect of significant matters an officer’s right to representation includes advocacy.

(3) The employer will recognise the choice of representative made by an officer, which may include a union representative, a union official or an employee of the union.

(4) If:

(a) a representative nominated by an officer, being an organisation within the meaning of the Industrial Relations Act 1979 (the Act), an employee or officer of such an organisation, a union representative within the meaning of clause 36(2) of this Award, a person registered under section 112A of the Act, an employee or officer of such a person, or a legal practitioner, or

(b) an officer,

notifies the employer in writing that a representative acts for the officer in relation to a matter and provides the identity and contact details of the representative, the employer must recognise that person’s representational capacity in all future dealings on that matter.

(5) The presence of a representative is not necessary at every meeting between an officer and the employer (or a representative of the employer). Where the meeting involves a significant matter the representative shall be permitted to attend. All parties will make reasonable efforts to avoid unnecessary delays.

(6) The employer accepts a representative can advocate on behalf of the officer at the meeting. For the purposes of this clause only, an advocate may make comments on the process, ask questions, seek clarification of questions put to the officer, seek adjournments to confer with the officer and provide further comments at the conclusion of the interview, but will not answer questions of fact put to the officer.

2         The appellant, the Civil Service Association of Western Australia Incorporated (CSA), brought proceedings in the Industrial Magistrates Court (IMC) alleging that the Director General, Department of Justice (DOJ) had contravened the representation rights clause by failing to recognise its representative capacity during disciplinary processes involving two of the CSA’s members. Relevantly, the CSA alleged the requirement in clause 36A(4) to recognise the CSA’s representational capacity was breached when the DOJ issued an invitation to a meeting to discuss the outcome of a disciplinary matter to the CSA’s members directly, without also directly informing the CSA of the meeting.

3         The IMC dismissed the CSA’s claims. The CSA appeals that decision, and seeks orders upholding its claim that clause 36A(4) was breached by not directly informing the CSA about the meetings scheduled on 22 January 2021. In the alternative, the CSA seeks orders quashing the IMC’s decision, and remitting the matter to the IMC for further hearing and determination.

4         There is no dispute that the representation rights clause in general contains binding and enforceable obligations. The DOJ originally filed a Notice of Contention in the appeal which alleged that, on its proper construction, sub‑clause 36A(4) has no enforceable content. This ground of the Notice of Contention was not ultimately pressed.

5         There are three grounds of appeal advanced. The first ground alleges the learned Industrial Magistrate erred in her Honour’s construction of sub‑clause 36A(4). Specifically, the CSA alleges her Honour erred by failing to find that sub‑clause 36A(4), on its proper construction, requires an employer to communicate directly with a duly nominated representative. The second and third grounds follow from Ground 1, in that they relate to the application of the facts to the contended for correct construction for each of the two employees.

6         Fundamentally, the appeal is about what sub‑clause 36A(4) of the representation rights clause means.

Background Facts

7         The circumstances that led to the CSA’s claim in the IMC were relatively uncontroversial. They were summarised in The Civil Service Association of Western Australia Incorporated v Director General as the Employing Authority, Department of Justice 2023 WAIRC 00793; (2023) 103 WAIG 1715 (first Full Bench decision) at [6]‑[11]. That summary is reproduced here for ease of reference:

[6] Two of the Director General’s employees appointed the CSA to represent them in the course of a process dealing with allegations that those employees had committed a breach of discipline.

[7] The breach of discipline matters were ‘significant matters’ for the purpose of cl 36A(1) and therefore attracted the application of cl 36A.

[8] The CSA informed the Director General in writing that it represented the employees.

[9] The Director General proceeded to conduct meetings with each of the employees for the purpose of delivering to them a letter of outcome relating to the allegations of breach of discipline. Those meetings were arranged by sending an electronic meeting invitation on 21 January 2021 to the employees, for a meeting with Professional Standards on 22 January 2021 to advise of the outcome of the disciplinary process.

[10] The Director General advised the employees in writing that they were entitled to bring a support person or union representative to the meeting. However, the communications scheduling the meetings were not sent directly to the CSA or any of the CSA’s officers or employees when they were sent to the employees.

[11] The employees contacted the CSA after receiving the Director General’s notice of the meeting. A representative from the CSA did then attend the meetings held on 22 January 2021 in relation to each employee.

8         The CSA’s Originating Claim alleged that the DOJ had failed to comply with clause 36A, and sought the imposition of a penalty for that alleged failure. The Originating Claim referred specifically to sub‑clause clause 36A(4) and to the obligation to ‘recognise the union’s representational capacity in all future dealings on that matter’. It alleged:

8. On 21 January 2021 the Respondent made arrangements with [Employee 1] and [Employee 2] to attend separate meetings on 22 January 2021 to receive a letter of outcome in respect to their allegations of a breach of discipline without making the arrangements through the Claimant as expected or required as their representative.

9. Both [Employee 1] and [Employee 2] advised the Claimant of the proposed meetings on 22 January 2021.

10. The Claimant attempted to get the Respondent to rearrange the meetings for another date because of short notice, and the unavailability of their Industrial Officers, who did not work on Fridays.

11. The Respondent refused to rearrange the date.

12. Wherefore[sic], the Claimant alleges that the Respondent has contravened or failed to comply with clause 36A(4) the Award; namely to recognise the union’s representational capacity in all future dealings on that matter.

13. The matter was discipline as contemplated in clause 39A(1), and the breach was complete when the officer of the employing authority contacted the CSA’s members to arrange meetings or an interviews without the CSA’s knowledge.

9         The Originating Claim also said:

16. Clause 36A was inserted into the Award by consent and became effective as from 1 January 2021. The clause does not prevent an employing authority from sending copies of correspondence or communications addressed to the Claimant to the Claimant's members at the same time[.]

10      As observed in the first Full Bench decision at [49], the CSA’s case at first instance was unclear about precisely what conduct was alleged to constitute the relevant breach. The learned Industrial Magistrate ultimately, and in our view, properly, summarised the CSA’s claims in her Honour’s reasons at [8]:

Having regard to the Statement of Claim, the evidence at trial and the cross‑examination of the respondent's witness, it appears that the claimant is alleging that the respondent contravened cl. 36A of the Award in the following ways:

(i) The respondent contravened cl. 36A(4) of the Award in respect of [Employee 1] by not directly informing the claimant and/or Ms Arntzen about the meeting scheduled on 22 January 2021;

(ii) The respondent contravened cl. 36A(6) of the Award in respect of [Employee 1] by not allowing Ms Arntzen to advocate on behalf of Ms Malkoc at the meeting on 22 January 2021;

(iii) The respondent contravened cl. 36A(4) of the Award in respect of [Employee 2] by not directly informing the claimant and/or Mr Tebbutt about the meeting scheduled on 22 January 2021;

(iv) The respondent contravened cl. 36A(4) of the Award in respect of [Employee 2] by not providing the letter of outcome to Mr Tebbutt prior to the meeting of 22 January 2021;

(v) The respondent contravened cl. 36A(5) of the Award in respect of [Employee 2] by refusing to re‑schedule [Employee 2’s] meeting in view of Mr Tebbutt's request that the meeting be held the following week.

11      All five claims were dismissed. The grounds of appeal relate only to the findings related to the alleged breach at paragraphs (i) and (iii): the alleged contraventions of clause 36A(4) by not directly informing the CSA about the meetings.

Decision at first instance

12      After setting out the relevant uncontentious background facts, the text of the representation rights clause, and the alleged contraventions, the learned Industrial Magistrate set out her Honour’s findings relevant to each alleged contraventions. As the appeal only concerns the two alleged contraventions of clause 36A(4), it is only necessary to deal with her Honour’s reasons relating to those.

13      Her Honour relevantly found that:

(a) A letter dated 15 June 2020 from the CSA’s industrial officer who was assisting Employee 1 in the disciplinary matter constituted notification in writing of representation for the purpose of clause 36A(4): [14].

(b) Consequently, the DOJ was required to recognise the relevant ‘person’s’ representational capacity in all future dealings on the matter: [15].

(c) The CSA was the relevant ‘person’ whose representational capacity the DOJ had to recognise, not the industrial officer personally: [20].

(d) The meeting scheduled for 22 January 2021 to discuss the outcome of the investigation into the disciplinary matter is a ‘dealing’ on that matter: [23].

(e) The invitation to such meeting is also a ‘dealing’ on the matter: [24]

(f) Because the invitation to the employee to attend the meeting on 22 January 2021 post‑dated the letter of 15 June 2020, the invitation was a ‘future dealing’ on the matter, in which the respondent was required to recognise the CSA’s representational capacity: [25].

(g) The DOJ did not send the meeting invitation to the CSA or its industrial officer, but it did inform the employee that she was permitted to have a union representative with her in the meeting: [26]‑[27].

(h) By informing the employee that she was permitted to have a union representative with her in the meeting the DOJ complied with the requirement of clause 36A to recognise the CSA’s representational capacity: [35].

14      To arrive at the conclusion that the DOJ complied with the requirement to recognise the CSA’s representational capacity, her Honour considered the content and meaning of the word ‘recognise’ as used in clause 36A(4). Her Honour reasoned:

[29] The Macquarie Dictionary defines “recognise” as:

1. to know again; perceived to be identical with something previously known.

[30] However, in the context of the Award, the Cambridge Dictionary provides a more apt definition, namely:

to accept that something is legal, true, or important.

[31] A thing may be “recognised”, that is, accepted as legal, true, or important, in any number of ways, any of which may be appropriate in a particular context.

15      Her Honour then proceeded to consider the facts as found, to determine whether the CSA’s representational capacity had been recognised in the sense described. Her Honour outlined in [32] the particular context which her Honour had regard to in determining whether the CSA’s representational capacity had been recognised:

[32] In order to determine whether the respondent’s invitation to Ms Malkoc recognised the claimant’s representational capacity, I must take into account the terms of cl. 36A of the Award as a whole. Significantly:

(i) Discipline is a “significant matter” – cl. 36A(1) of the Award;

(ii) In respect of significant matters an officer’s right to representation includes advocacy – cl. 36A(2) of the Award;

(iii) Where the meeting involves a significant matter the representative shall be permitted to attend – cl. 36A(5) of the Award;

(iv) The employer accepts a representative can advocate on behalf of the officer at the meeting – cl. 36A(6) of the Award.

16      Her Honour concluded that when the DOJ invited the employee to the meeting, it had to ‘convey clearly to her that she was permitted to have a representative present with her at the meeting’: [33]. Had it failed to do so, it would have been in breach of the requirement to recognise the CSA’s representational capacity. However, because it had conveyed this clearly to the employee, in terms which the employee obviously understood as she acted on the information, no breach was established: [34].

17      In relation to Employee 2, her Honour also found that the DOJ had been notified that the CSA represented Employee 2 in relation to the alleged breach of discipline by letter dated 12 June 2020: [50] and [55].

18      Accordingly, the DOJ was required to recognise ‘the person’s’ representational capacity in all future dealings on the matter: [56]

19      The CSA was the relevant ‘person’ whose representational capacity the DOJ had to recognise: [64].

20      The purpose of the meeting on 22 January 2021 was to inform Employee 2 of the outcome of the investigation into alleged disciplinary breaches. The invitation to Employee 2 to attend the meeting post‑dated the correspondence informing the DOJ that the CSA represented the employee, and so was a ‘future dealing’ on that matter in which the DOJ was required to recognise the CSA’s representational capacity: [66].

21      The DOJ did not send the meeting invitation to the CSA or its industrial officer.

22      However, the DOJ did inform Employee 2 that he was permitted to have a union representative with him in the meeting. Her Honour then concluded:

[69] In view of the provisions of cl. 36A of the Award identified at paragraph [32] above, and in view of the fact that the respondent had received the correspondence contemplated by cl. 36A(4) of the Award, it stands to reason that when the respondent invited [Employee 2] to the meeting, it had to convey clearly to him that he was permitted to have a representative with him at the meeting. If it had not done so, it would have effectively ignored the claimant’s right to attend and [Employee 2’s] right to advocacy, meaning, it would have failed to recognise the claimant’s representational capacity.

[70] In the circumstances however, the respondent did convey clearly to [Employee 2] that he was permitted to have a representative with him at the meeting. [Employee 2] obviously understood this, because he promptly contacted Mr Tebbutt.

[71] In my view, the respondent telling [Employee 2] that he was permitted to have a union representative with him at the meeting, in a way that he understood, constituted recognition of the claimant’s representational capacity in the disciplinary matter.

[72] In the absence of a provision in the Award specifically requiring service of invitations and the like upon the claimant, or defining ‘recognition’ as including such a requirement, there is no basis upon which to import such a notion into the word “recognise”.

…

[74] To the extent that Mr Tebbutt and Mr Claydon took the view that it was wrong of the respondent to deal directly with its own employee, there is no basis for that view. It must be the case that an employer subject to the Award is at liberty to correspond directly with its employees, while at the same time recognising the representational capacity of a nominated representative in the manner contemplated by cl. 36A of the Award. That is what the respondent did in this case.

[75] There is no foundation in the Award for the claimant’s view that once it has representational capacity, all correspondence must go directly to it and never to an individual employee.

The nature of this appeal

23      An appeal to the Full Bench from the IMC under s 84 of the Industrial Relations Act 1979 (WA) is an appeal by way of rehearing. The appellant must establish error, of either law or fact or both, before the powers in s 84(4) are invoked. Where an error of fact is alleged, it is open to the Full Bench to make its own findings of fact based on the evidence before the Industrial Magistrate: Reardon v Gaetano Anthony Lagana (ABN 85 867 757 829) T/A Stratton Park Pharmacy [2019] WAIRC 00889; (2020) 100 WAIG 243 per Kenner SC at [24]‑[26].

24      Ground 1 of the appeal raises an issue of the correct construction of the Award. The correct construction of the Award is not a matter of judicial discretion, but is a matter of law. The correctness standard of appellate review applies. The first instance decision is susceptible to appellate intervention if it is wrong.

25      The other grounds of the appeal challenge the learned Industrial Magistrate’s factual findings, only to the extent that the factual findings followed from her Honour’s alleged erroneous construction of the Award.

Ground 1 – What is the correct construction of Clause 36A(4)

26      Ground 1 is:

1. In dismissing alleged contraventions (i) and (iii) in matter M170 of 2021, the Industrial Magistrate erred in law in interpreting clause 36A of the Public Service Award 1992 (the Award) by finding in paragraphs [36] and [72] of the reasons for decision that clause 36A did not place an obligation on the Respondent to serve ‘invitations and the like’ upon the nominated representative of an officer where the invitation relates to a significant matter.

Particulars

A. Clause 36A provided officers involved in significant matters (e.g. discipline and performance management) with a ‘right to representation’: Clause 36A(2).

B. An officer’s right to representation included advocacy: Clause 36A(2).

C. While the presence of an officer’s representative was not required at every meeting between an officer and the Respondent, the Respondent was required to:

i. recognise the officer’s representative;

ii. recognise the representational capacity of the Appellant’s representative in all future dealings on that matter;

iii. permit the officer’s representative to attend all meetings involving significant matters;

iv. allow the officer’s representative to advocate on behalf of the officer at those meetings; and

v. make reasonable efforts to avoid unnecessary delays: Clause 36A(3), (4), (5).

D. Given the officer’s right to representation and the above express obligations on the Respondent in clause 36A, it was erroneous for the Industrial Magistrate to conclude that clause 36A did not require the Respondent to correspond with the officer’s representative about planning meetings relating to significant matters involving the officer.

E. The proper construction of clause 36A required the Respondent to correspond with the officer’s representative about planning meetings relating to significant matters involving the officer.

27      It is clear that Ground 1 alleges an error of law in the construction of clause 36A(4) of the representation rights clause.

28      What is less clear is what the CSA says is the correct construction.

29      Particular E indicates that the correct construction is that clause 36A requires an employer to correspond with the relevant representative about planning meetings relating to significant matters involving the officer.

30      This is a different formulation from what is implicit in the ground itself. The ground describes the error as the finding that the clause did not place an obligation on the respondent to serve invitations and the like upon the nominated representative of an officer where the invitation relates to a significant matter. It therefore implicitly contends that the correct construction of clause 36A(4) is that it requires an employer to serve invitations and the like upon the nominated representative of an officer where the invitation relates to a significant matter.

31      The CSA’s contended for construction vacillates again in the CSA’s written submissions (emphasis added):

31. A reasonable person appraised of the process outlined in paragraph [29] above would conclude that the employer would be bound to follow the process and once notified of their nominated representative their representational capacity would be recognised and the nominated representative would be included in all future dealings on the discipline matter.

…

34. The representative must be advised by the employer of the meeting to discuss a significant matter. It is not enough for the employer to inform the employee and rely on the employee to inform the representative. The obligation to notify the nominated representative of a meeting about a significant matter rests with the employer. Not advising the representative of the meeting amounts to a failure to accept as legal, true or important the representative's representational capacity.

…

40. For Clause 36A to define or specify “recognise” as requiring the service of meeting invitations on the Appellant or Ms Arntzen it would unnecessarily restrict how the communication to the representative must occur. There is any number of ways an employer could directly communicate with the nominated representative that a meeting to discuss a significant matter is to be scheduled. They might ring the nominated representative to ascertain their availability prior to scheduling a meeting. They may send an email separate from that sent to the employee. They might write to the representative. How it is done is a matter for the employer, but they are obliged to communicate directly with the nominated representative.

32      Obviously, the CSA faces a difficult task demonstrating error in the correct construction of the clause, if it is starting from a point it cannot itself articulate the correct construction, or advances multiple correct constructions.

33      There is only one true construction.

34      Faced with an alleged error in construction of the clause, the Full Bench must determine for itself the proper construction: Quasar Resources Pty Ltd v APG Aus No 3 Pty Ltd [2023] WASCA 171 at [19] per Beech and Vaughan JJA.

35      The principles that apply in the construction of industrial instruments are not in dispute. They were stated in Fedec v The Minister for Corrective Services [2017] WAIRC 00828; (2017) 97 WAIG 1595 and Re Harrison; Ex parte Hames [2015] WASC 247. We refer to Beech J’s summary in Re Harrison; Ex parte Hames [2015] WASC 247 at [50]:

(1) the primary duty of the court in construing an instrument is to endeavour to discover the intention of the parties as embodied in the words they have used in the instrument;

(2) it is the objectively ascertained intention of the parties, as it is expressed in the instrument, that matters; not the parties’ subjective intentions. The meaning of the terms of an instrument is to be determined by what a reasonable person would have understood the terms to mean;

(3) the objectively ascertained purpose and objective of the transaction that is the subject of a commercial instrument may be taken into account in construing that instrument. This may invite attention to the genesis of the transaction, its background and context;

(4) the apparent purpose or object of the relevant transaction can be inferred from the express and implied terms of the instrument, and from any admissible evidence of surrounding circumstances;

(5) an instrument should be construed so as to avoid it making commercial nonsense or giving rise to commercial inconvenience. However, it must be borne in mind that business common sense may be a topic on which minds may differ; and

(6) an instrument should be construed as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed so as to have some operation.

36      The CSA’s case that the Industrial Magistrate’s construction of sub‑clause 46A(4) was wrong focused on reading the clause as a whole. It points out that the mandatory elements of clause 36A require an employer to do several things in aid of recognising representational capacity, namely (footnotes omitted):

29. Clause 36A read as a whole outlines a process to notify an employer of an officer's representative's representational capacity and once notified what the employer must do to ensure that the representational capacity of the representative is recognised in all future dealings.

Process to notify an employer of a representative's representational capacity

a. The matter is a significant matter which includes discipline, performance, officer entitlements, fitness for work and return to work.

b. The employer has been notified in writing that a representative acts for an officer and has been provided with the identity and contact details of the representative, which may include a union representative, a union official or an employee of the union.

What an employer must do to ensure the representational capacity is recognised

a. Recognise (accept as legal, true or important) that person's representational capacity in all future dealings on that matter. [original emphasis]

b. Permit the representative to attend meetings that involve a significant matter.

c. Make reasonable efforts to avoid unnecessary delays.

d. Accept a representative can advocate on behalf of the officer at the meeting.

37      Its submissions were to the effect that in order to achieve these mandatory things, it is implicit that the nominated representative be directly notified of any meetings, by the employer. The gist of its case is that without such notification, the other requirements of the clause, about what an employer must do, cannot sensibly be achieved or guaranteed.

38      The CSA’s approach to construction involved the meaning of clause 36A(4) changing depending on the nature of the matter the representative had been nominated for. This approach was highlighted by the following exchange between Senior Commissioner Cosentino and the CSA’s advocate:

COSENTINO SC:  Okay. Can I ask in terms of the respondent’s submission at 51, paragraph 51 of the respondent’s written submissions, the respondent says:

“The obligation to recognise is the same for significant matters as it is for matters.”

Do you agree with that or do you not agree?

MOORE, MS: No, I don't agree. I don't think the entitlement to representation is the same for non‑significant matters.

COSENTINO SC: The obligation to recognise?

MOORE, MS: No I don’t think it is.

39      The first obvious flaw in this approach is that the clause can only have one correct meaning: Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18, (1925) 36 CLR 60, 78‑79.

40      If the CSA had advanced a fixed meaning, premised on the need for the clause to facilitate the rights that apply when a matter is a significant matter, it faces an immediate difficulty.

41      Clause 36A distinguishes between ‘significant matters’, defined in clause 36A(1), and non‑significant matters. Different entitlements to representation are conferred, depending on whether a matter is a ‘significant matter’ or not. The right to advocacy under clause 36A(2), and to attend meetings under clause 36A(5) only apply to significant matters.

42      However, clause 36A(4) applies to all future dealings on the matter the subject of the written notification. It is not limited to significant matters. Clause 36A(4) cannot be read and construed with a view to achieving purposes that are only applicable to significant matters. It must be construed on the basis it operates in all future dealings on any matter.

43      That clause 36A(4) applies to significant matters and non‑significant matters supports it having a broad meaning. A precise, prescriptive meaning is ill‑suited to the clause’s role and purpose.

44      A broad construction can allow for different ways the clause’s requirements can be met, depending on the particular facts and circumstances. Whether, within such a range, the requirements of the clause are met is a question of fact, not a question of the correct construction of the clause.

45      A significant matter not dealt with in her Honour’s reasons is what ‘representational capacity’ means in clause 36A(4). This is likely because the parties did not focus on this aspect of the clause. Her Honour observed, at [31], that ‘a thing may be “recognised”, that is, accepted as legal, true, or important, in any number of ways, any of which may be appropriate in a particular context’. But her Honour has not grappled with what precisely it is that the employer must recognise.

46      The nature of representation and what it entails is important context for the meaning of clause 36A(4). Without an appreciation of what representation the representation rights clause is directed at, construction of the clause lacks a view to its intended purpose.

47      With respect, her Honour’s reasons focus on the words used in clause 36A, but lack a view to its purpose. As Lord Hoffman observed in Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28; [1998] 1 WLR 896 at 913:

The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean…

48      Being a representative for a person involves more than simply advocating or attending meetings. A support person may attend a meeting in that capacity, but they are not a representative of the person they are supporting. Similarly, a person can advocate for a cause or for another person, without being a representative of that other person. Rather, a representative is someone who stands in for, or acts for, another person as proxy, agent, substitute or under some other designated authority. The Macquarie Dictionary relevantly defines ‘represent’ as a verb:

3. to stand or act in the place of, as a substitute, proxy, or agent.

4. to speak and act for by delegated authority

and ‘representative’ in its noun sense as:

7. One who or that which represents another or others…

10. an agent or deputy: a legal representative.

49      The DOJ submitted that an employer recognises the representational capacity of a representative by allowing the representative to do what they are allowed to do by virtue of the representation rights clause i.e. attend meetings in relation to significant matters and advocate on the officer’s behalf in relation to significant matters.

50      These things may be sufficient in some cases to recognise representational capacity. But the obligation is not so simple. If a representative is someone who acts for the person they are representing, then when clause 36A refers to recognising an officer’s choice of representative and their ‘representative capacity’, it refers to the binding nature of acts done by the representative on behalf of the officer. It is saying that the representative’s conduct, communications, acts and omissions are to be treated as being the officer’s conduct, communications, acts and omissions.

51      The scheme of the representation right being conferred by clause 36A is revealed once the nature of representation rights is broadly understood. The particular purpose of clause 36A(4) can then be discerned.

52      The structure of the clause is informative. The clause contains six subclauses, starting with a definition of ‘significant matters’ for the purpose of representation under the clause.

53      The next sub‑clause (2) is the only clause expressed as an entitlement conferred on the officer. It provides that, in significant matters, the right of representation includes advocacy.

54      Sub‑clause (3) contains an overarching obligation. It says what the employer must do to enable the right to representation. Specifically, the employer must ‘recognise the choice of representative made by an officer’.

55      Sub‑clauses (5) and (6) describe in more detail and qualify the right of representation. They describe what is and is not required to fulfil the obligation in sub‑clause (3).

56      Sub‑clause (4) sits in between the description of the employer’s obligation to recognise the choice of representative, and the details of what the parties must and need not do to facilitate compliance with the overarching obligation. This indicates that clause 36A(4) is intended to provide a process to facilitate compliance with the overarching obligation, or, put another way, a mechanism to trigger the entitlement. It is the means by which an employee can invoke the entitlement to representation, and the means by which an employer knows the entitlement has been invoked.

57      Clause 36A(4)’s purpose is not to give particular content to the obligation additional to the overarching obligation in sub‑clause (3).

58      Both sub‑clauses (3) and (4) contain non‑exhaustive lists of who an officer ‘may’ appoint as their representative. In sub‑clause (3) the non‑exhaustive list is ‘a union representative, a union official or an employee of the union’, where ‘Union’ is defined by the Award as meaning the Civil Service Association of Western Australia Incorporated.

59      Sub‑clause 36A(4)(a) has a list that comprises:

• an organisation within the meaning of the Act. This is a reference to an organisation of employees registered under Part II Division 4 ‑ Industrial organisations and associations of the Act. The CSA is one of a large number of such organisations;

• an employee or officer of such an organisation;

• a union representative under clause 36(2) of the Award. This is a reference to workplace representatives being members of the CSA’s Electorate Delegate’s Committee;

• a person registered under s 112A of the Act. This is a reference to a person who is registered as an industrial agent, conducting business in appearing as an agent in proceedings before the Commission, and providing advice and other services in relation to industrial matters;

• an employee or officer of a registered industrial agent; or

• a legal practitioner.

60      However, under clause 36A(4)(b) an officer can notify the employer of a representative without any limits. The clause does not require that the representative be a person fitting any of the descriptions in the list in clause 36A(4)(a). Any person can be an officer’s representative.

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

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

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

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

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

64      Similarly, another purpose of requiring the contact details of the representative is to facilitate compliance with the obligation to recognise the representative, by ensuring that the employer has a means to be able to make contact with the representative. The clause does not prescribe what contact details must be given. Still, the provision of contact details enables the employer to recognise the person’s representative capacity. It ensures the employer is not frustrated in its ability to recognise the representative capacity by being unable to contact the representative.

65      Had it been intended that clause 36A(4) create a proactive obligation on the employer to serve all notices, correspondence and the like to the representative via the contact details provided in the written notice, it would have been a simple matter for the clause to say that. It does not. Indeed, it does not require that contact details must include either an electronic or physical address for serving notices or communications.

66      The reference in clause 36A(4) to ‘future dealings’ is also significant. It indicates that the employer’s obligation to recognise the choice of representative and their capacity as representative, commences from the time the written notice is given, and does not apply before that time.

67      With respect, the learned Industrial Magistrate’s reasons for decision do not thoroughly grapple with the full import of clause 36A(4) in the overall context of the employer’s obligation to recognise an officer’s choice of representative and their representative capacity. Her Honour’s reasons do not reveal a purposive approach to construction.

68      For our part, we consider clause 36A(4) does not create an additional obligation to the obligation to recognise an officer’s choice of representative contained in clause 36A(3). Rather, we consider clause 36A(4) provides the practical process for triggering and enabling observance of the obligation in clause 36A(3). Clause 36A(4)’s reference to recognising a person’s ‘representational capacity’ is a reference to the obligation contained in clause 36A(3).

69      The obligation to recognise the representative requires the employer to treat the representative’s communications, conduct, acts and omissions as the officer’s, once the prerequisites of clause 36A(4) are met.

70      How an employer meets this obligation will depend on the particular circumstances, including the identity and contact details of the representative that have been provided.

71      It follows from our conclusion as to the purpose and construction of clause 36A(4) that we do consider the learned Industrial Magistrate erred in her Honour’s approach to construing clause 36A(4). However, the correct construction is not the construction advanced by the CSA, nor is it a construction which would have enabled success in the CSA’s claims at first instance.

72      The CSA’s case that the DOJ was in breach of clause 36A(4) was bound to fail. The clause obliges an officer or their representative to do certain things to trigger the entitlement to representation, and the corresponding obligation on the employer to recognise that entitlement. It is not a clause that imposes an obligation on the employer, nor can any conduct by an employer constitute a contravention of it.

73      Therefore, the learned Industrial Magistrate’s ultimate conclusion at [31] that no breach of clause 36A(4) was established was correct. In so concluding, her Honour implicitly, and correctly, rejected the notion that recognition of an officer’s choice of representative and their representative capacity (as required by clause 36A(3)), imported a requirement for particular or specific conduct by the employer, and affirmed that whether the obligation has been met will be a question of fact in each case.

74      Accordingly, we would dismiss Ground 1.

Grounds 2 and 3

75      These grounds can be dealt with together. Ground 2 is:

2. In dismissing alleged contravention (i) in matter M170 of 2021, the Industrial Magistrate erred in fact and law by finding, at paragraphs [34] to [36] of the reasons for decision, that the Respondent:

i. recognised the Appellant’s representational capacity under clause 36A; and

ii. otherwise complied with the obligation in clause 36A of the Award to recognise [Employee 1’s] nominated representative in all future dealings of the significant matter,

despite having correctly found:

iii. at paragraph [23] of the reasons for decision, that a meeting scheduled by an employer to discuss the outcome of an investigation into a disciplinary matter is clearly a “dealing” on that matter;

iv. at paragraph [24] of the reasons for decision, that the invitation to such a meeting is also a “dealing” on the matter; and

v. at paragraph [26] of the reasons for decision, the Respondent did not send the meeting invitation to [Employee 1’s] representative.

Particulars

A. Clause 36A provided officers involved in significant matters (e.g. discipline and performance management) with a ‘right to representation’: Clause 36A(2).

B. An officer’s right to representation included advocacy: Clause 36A(2).

C. While the presence of an officer’s representative was not required at every meeting between an officer and the Respondent, the Respondent was required to:

i. recognise the officer’s representative;

ii. recognise the representational capacity of the Appellant[’]s[sic] representative in all future dealings on that matter;

iii. permit the officer’s representative to attend all meetings involving significant matters;

iv. allow the officer’s representative to advocate on behalf of the officer at those meetings; and

v. make reasonable efforts to avoid unnecessary delays: Clause 36A(3), (4), (5).

D. Given the Appellant[’]s[sic] representational capacity and the above express obligations on the Respondent in clause 36A, it was erroneous for the Industrial Magistrate to conclude that clause 36A did not require the Respondent to correspond with the officer’s representative about planning meetings relating to significant matters involving the officer.

E. The Industrial Magistrate’s error in law consequentially caused it to make an error in fact by finding that the Respondent did not contravene clause 36A.

76      Ground 3 is in substance the same as Ground 2, except it relates to the corresponding findings for Employee 2.

77      The CSA accepted that if it failed in relation to Ground 1, the other grounds fall away. It made no submissions in support of these grounds separate from its submissions on Ground 1.

78      The CSA has failed to establish that clause 36A(4) as a matter of construction required the employer to correspond directly with it about planning meetings and the like. Its case at first instance was that the clause did contain such a requirement, and that, by sending a meeting invitation directly to the officers concerned without making some form of contact with the CSA at or before doing so, clause 36A(4) had been breached.

79      As that was the CSA’s case at first instance, any error in her Honour’s approach to construction could not alter the outcome of the CSA’s claims. The CSA did not run its case on the basis that clause 36A(3), which contains the overarching and primary obligation to recognise a representative, had been breached.

Notice of Contention

80      The DOJ’s Notice of Contention originally comprised four grounds. Three of the four grounds were not ultimately pressed. The ground that remained was:

If, by way of its appeal, the appellant seeks to establish a contravention of clause 36A of the Public Service Award 1992 (Award) other than the alleged contravention set out in paragraphs 12 and 13 of Schedule A to the Originating Claim, the respondent contends that it is not open for the Full Bench on appeal or the Industrial Magistrates Court on remittal to find any such contraventions established because such alleged contraventions:

(a) did not form part of the claim before the Industrial Magistrates Court and therefore the Court had no jurisdiction to hear and determine such alleged contraventions; and / or

(b) were only raised by the appellant after evidence was filed meaning that the respondent was not provided an opportunity to file and lead evidence in relation to the alleged contraventions, thus denying the respondent procedural fairness.

81      The DOJ accepted that because the Full Bench in the first Full Bench decision) effectively confined the CSA’s case as to what it alleged was the contravention for the purpose of the appeal, this remaining ground of contention also falls away.

82      We would observe, though, that this appeal did involve much vacillation by the CSA that fairly warranted the DOJ raising this ground of contention. The CSA’s grounds of appeal, its case as to the correct construction of the clause and its case as to precisely what constituted the alleged breach were difficult to pin down, and there were indications in its written submissions filed that the alleged contravention was something different to that which was advanced at first instance, to the extent that was possible to identify. Nevertheless, no further application to amend the Grounds of Appeal was made, or granted. As such the appeal has been determined on the basis of the grounds of appeal approached in accordance with the reasons of the first Full Bench decision.

Orders

83      The appeal is dismissed.