MUNICIPAL EMPLOYEES (WESTERN AUSTRALIA) AWARD 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00071

DELIVERED : WEDNEsday, 14 February 2024

FILE NO. : APPL 80 OF 2023

Applicants

AND

City of Kalamunda and others

Respondents

CatchWords : Industrial Law (WA) – Application to intervene in proceedings – Whether applicant has direct interest in proceedings – Whether applicant has indirect interest in proceedings – Where applicant is also agent for parties to proceedings – Discretionary considerations – Efficiency – Natural justice – Proper administration of justice – Leave to intervene not granted – Application dismissed

Legislation : Industrial Relations Act 1979 (WA)

Fair Work Act 2009 (Cth)

Local Government Act 1995 (WA)

Industrial Relations (Industrial Agents) Regulations 1997 (WA) 

Result : Application dismissed

Representation:

Proposed Intervenor : Western Australian Local Government Association

First Applicant : Fogliani Lawyers

Second Applicant : Local Government, Racing and Cemeteries Employees Union (WA)

Second, Third,

Seventh, Eighth,

Eleventh,

Thirteenth,

Fourteenth,

Sixteenth,

Seventeenth,

Eighteenth,

Twentieth,

Twenty‑First,

Twenty‑Second,

& Twenty‑Fifth

Respondents : Western Australian Local Government Association

Fourth, Fifth,

Sixth, Tenth,

Twelfth,

Fifteenth,

Nineteenth &

Twenty‑Third

Respondents : Fitz Gerald Strategies

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 Union of Workers [2016] WAIRC 00966; (2017) 97 WAIG 148

Australian Conservation Foundation v Commonwealth [1980] HCA 53; (1980) 146 CLR 493

City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees & anor [2023] WAIRC 00787; (2023) 103 WAIG 1723

R v Ross‑Jones; Ex parte Green [1984] HCA 82

Re Federated Miscellaneous Workers Union of Australia (1993) 49 IR 262; (1993) 73 WAIG 564

Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513

The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2008] WAIRC 01393; (2008) 88 WAIG 1937

Western Australian Municipal, Administrative, Clerical and Services Union of Employees and anor v The Construction, Forestry, Mining and Energy Union of Workers and Ors [2024] WAIRC 00057

Reasons for Decision

1         Western Australian Municipal, Administrative, Clerical and Services Union of Employees and Local Government, Racing and Cemeteries Employees Union (WA) (the Unions) have jointly applied to the Commission to vary the Municipal Employees (Western Australia) Award 2021 to increase the Award’s rates of pay for Levels 1A through to Level 6.

2         As required by s 29A(3) of the Industrial Relations Act 1979 (WA), the Unions named each of the 25 employer parties to the Award as respondents to the application.

3         Most of the named employer parties have filed responses to the application either through Fitz Gerald Strategies or Western Australian Local Government Association (WALGA) as their agents.

4         WALGA has applied under s 27(1)(k) of the Act to intervene in the proceedings in its own right.

5         The Unions and the respondents whom Fitz Gerald Strategies represents oppose WALGA’s application to intervene.

6         The parties agreed for the application to intervene to be dealt with on the papers. I have received and read written submissions filed by WALGA in support of its application, and by the respondents opposing the application. I have decided that although WALGA has an indirect interest in these proceedings, it should not be granted leave to intervene in the interests of the proper administration of justice.

WALGA’s grounds for intervention

7         WALGA seeks to intervene on the basis that it has a sufficient interest in the proceedings because:

(a) It is a representative for the local government sector. Its members include employers who are bound by the Award, and so those members have a direct interest in the outcome of the application to vary the Award.

(b) The outcome of the proceedings has implications for the local government sector as a whole.

(c) WALGA is an intervenor in APPL 27 of 2023, which is an application by the Commission of its own motion to vary the Award under s 40B. That application involves a proposed variation to the rates of pay in the Award to ensure that the rates of pay are not less than the statutory minimum award rates. WALGA, therefore, has an interest in the outcome of these proceedings because the outcome of these proceedings will have implications for its involvement in APPL 27 of 2023. It says that if it is not granted leave to intervene in these proceedings, the fact these proceedings have been brought practically undermines its intervention in APPL 27 of 2023.

8         WALGA also says that permitting it to intervene in the proceedings will be the most efficient way of ensuring the interests of local government employers are advanced in the proceedings. The alternative would involve WALGA filing a notice that it acts as agent for potentially over 100 individual employers. It says this will be administratively burdensome for both WALGA and the Commission.

9         Indeed WALGA foreshadows that, if leave to intervene is not granted, ‘it is foreseeable that the interests of all but nine small, rural Local governments are not appropriately represented and the needs of the industry cannot be accurately ascertained’. I understand this is said to be the case because many local governments may be deterred from seeking leave to intervene in their own right by the administrative burden and cost of doing so. I’m unsure where the number nine comes from, given that 22 individual local governments are currently represented in these proceedings.

Reasons for opposing intervention

10      The Unions and the local government employers who are opposing the application say:

(a) WALGA is not itself a party to the Award and has no direct interest in the outcome of the application.

(b) WALGA does not have a sufficient interest in the matter.

(c) WALGA’s intervention in APPL 27 of 2023 does not give it sufficient interest in this application because:

(i) Its intervention in APPL 27 of 2023 was by consent, and

(ii) The nature of the proceedings is different.

(d) WALGA has been appointed as an industrial agent to represent certain parties to the Award in these proceedings. It is inappropriate for WALGA to participate in the proceedings both as an industrial agent on the record for named respondents and in its own right as an intervenor.

(e) WALGA cannot be both an intervenor in the proceedings in its own right, purporting to represent the sector and its members generally, and an industrial agent for individual local government employers, without this creating a potential conflict of interest.

(f) For WALGA to intervene on the basis that it represents a sector that is opposed to the variations will at best be of limited value to the Commission, or at worst misleading to the Commission, if some WALGA members in fact support the variations. It is better for the Commission to be informed of the position of individual employers.

When should a party be given intervenor status?

11      The power to grant leave to a person to intervene in Commission proceedings is contained in s 27(1)(k), which says the Commission may:

(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;

12      The principles that apply in determining whether it is appropriate to allow intervention are well settled. They were recently applied by the Full Bench in City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees & anor [2023] WAIRC 00787; (2023) 103 WAIG 1723 at [46] citing the Full Bench decision in Amalgamation of the Australian Workers' Union, West Australian Branch, Industrial Union of Workers and the Food Preservers' Union of Western Australia Union of Workers [2016] WAIRC 00966; (2017) 97 WAIG 148 at [17]‑[21]. Relevant extracts from that case are set out below:

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 …

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.

13      When in Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513, his Honour Mason J referred to an interest sufficient to sustain an application for prohibition, his Honour was not importing the test of standing that applies to applications for prohibition, but rather, the test that applies to succeed in obtaining prerogative relief. At the time Mason J was writing, it was generally accepted that there was no discretion where the vitiating error was apparent on the face of the record, and the applicant for the remedy was a person directly aggrieved, but the court retained a discretion if the applicant was a ‘stranger’ with no direct interest: see for instance R v Ross‑Jones; Ex parte Green [1984] HCA 82 per Gibbs CJ at [10]. In this context, his Honour was saying that if a person has a direct interest, they must be permitted to intervene, but in the absence of a direct interest, discretionary considerations come into play.

14      The purpose of registration of organisations under the Act is to enable representation of their members’ interests. Therefore, where an employer association is registered, it has a direct interest in a matter if its members have a direct interest: Re Federated Miscellaneous Workers Union of Australia (1993) 49 IR 262; (1993) 73 WAIG 564 at 268.

15      If the Commission finds WALGA has a direct interest in these proceedings, WALGA must be permitted to intervene. If WALGA does not have a direct interest, it will only be permitted to intervene if it has a sufficient indirect interest, and relevant discretionary considerations favour permission being granted. The overriding consideration will be the requirements of natural justice.

Does WALGA have a direct interest?

16      In these proceedings, the Unions are seeking increases in the Award’s rates of pay. They seek a level one rate of pay that is $1 per hour higher than the State Minimum Wage of $22.72 per hour. They also seek to adjust the relativities within the levels, resulting in increases of up to $238.68 per week at Level 6.

17      It is uncontroversial that WALGA’s members that are employers who are bound by the Award, have a direct interest. The proceedings have potential ramifications for those members, because increases to the rates of pay under the Award may have an impact on bargaining for industrial agreements. Variations will also impact on budgeting, resourcing and operations.

18      WALGA does not expressly state in its submissions whether it relies on a direct interest in the proceedings, or an indirect but sufficient interest. WALGA suggests that the Commission has previously held that a party was not required to be a named party to an industrial instrument to have a ‘direct sufficient interest in a matter where the matter had implications for the local government sector as a whole’ and it appeared that the party seeking to intervene had some involvement in industrial matters in the local government sector.

19      This submission appears to be a reference to the Full Bench’s decision in the City of Cockburn. It oversimplifies the Full Bench’s reasoning.

20      In City of Cockburn, the Full Bench permitted the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) to intervene in proceedings concerning the validity of individual flexibility arrangements contained in the City of Cockburn’s proposed industrial agreement to be made under s 41 of the Act. The Full Bench was satisfied the CFMEUW had a sufficient interest in that matter on the basis that it was specified as a ‘party’ and/or as covered by at least seven enterprise agreements that applied to local government employers made under the Fair Work Act 2009 (Cth). It was not a ‘mere spectator or bystander’ in relation to those industrial instruments. Rather, its counterpart federal body was a named party or signatory to them. While the CFMEUW was not directly involved in the City of Cockburn Enterprise Agreement 2022, the proceedings had implications for the local government sector as a whole. The declarations made in the proceedings, therefore, had the potential to directly affect the CFMEUW as a party to or being a person bound by one or more industrial instruments: [54]. Even if the CFMEUW’s interest was indirect, the same considerations would have led the Full Bench to grant the application for leave to intervene: [59].

21      While clearly, the present proceedings have ramifications for the local government sector generally, there is no suggestion that WALGA is or will be a party to the Award or will be an employer bound by the Award.

22      WALGA also referred to Re Federated Miscellaneous Workers Union of Australia (1993) 49 IR 262 in its submissions. Its submission was that the case held that:

…if the purpose of an association is to enable representation of employers’ interests, and those employers are directly affected by an industrial matter, the WAIRC was satisfied an association had sufficient interest to allow them to be heard on that matter.

23      This slightly misstates the President’s reasons. His Honour was not referring to the purpose of the association, but rather to the purpose of registration under the Act:

It was submitted to us that in the case of the associations, they were "one removed" since they were not employers. However, the purpose of the registration of associations under this Act is to enable representation of employer's interests in the same way as employee organisations represent employee's interests. We are not of the opinion, therefore, that they are "one removed" in terms of the question of interest, being satisfied as we are that their members employ persons, as do the individual employers whose affidavits have been filed herein, who are alleged to be eligible for coverage by organisations other than the applicant. They are, therefore, directly affected and have sufficient interest to enable them to be heard. That being so, of course, Mr Le Miere's argument that one has to have an interest peculiar to oneself, and not a general interest spread over the community, is not a valid submission in this case.

24      The authors of Judicial Review of Administrative Action observe at [11.150] that incorporation of a group of like‑minded people does not itself grant that body the combined interest of its members. Nor can an association obtain ‘standing’ to apply for judicial review simply by professing commitment to a cause, although a statutory scheme recognising associational interests would enable them to claim standing ‘fairly easily’. See also Australian Conservation Foundation v Commonwealth [1980] HCA 53; (1980) 146 CLR 493, where Gibbs J said (at 531):

…If it is the fact that some members of the Foundation have a special interest ... it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it…

25      Registration under the Act is an essential step in the President’s finding in Re Federated Miscellaneous Workers Union of Australia that the associations concerned were directly affected. Under the scheme of the Act, registration carries privileges and rights, as well as duties and responsibilities: see The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2008] WAIRC 01393; (2008) 88 WAIG 1937 per Ritter AP at [124]. One of the privileges is recognition as a representative of employers’ interests. That recognition does not just derive from the association itself but from the scheme of the Act, including the Act’s registration requirements, which are aimed at ensuring the governance of registered organisations is such that the Commission can be confident they democratically represent their members’ interests Another privilege is the right to apply to be added as a named party to an award, which in turn confers the right to be heard in relation to matters concerning the award: s 38(2).

26      It appears to be uncontroversial that:

(a) WALGA is a body corporate established under the Local Government Act 1995 (WA) (LG Act). It is a member‑based, not‑for‑profit organisation representing and supporting the WA local government sector.

(b) All 139 local governments in WA are members of WALGA.

(c) Under its Constitution, WALGA’s objects include providing a united voice for, speaking on behalf of, and providing services to local government in WA. Further, it has the power to advocate on industrial relations matters.

(d) WALGA advocates on behalf of the local government sector in WA on industrial relations policy matters and legislative reform.

(e) In addition to WALGA’s advocacy role, WALGA operates an Employee Relations service that provides unlimited human resources and industrial relations advice to those local governments who subscribe to this specific service. One hundred and twenty‑three local governments and five Regional Councils subscribe to WALGA’s Employee Relations service.

(f) WALGA is a registered industrial agent under s 122A of the Act.

(g) WALGA is not a registered organisation of employers in accordance with Part II, Division 4 of the Act.

27      WALGA has not pointed to any way in which the outcome of these proceedings will affect WALGA directly in its own right. It is obvious that the outcome of the proceedings cannot do so, because WALGA does not and will not employ any person covered by the Award. As it is not a registered organisation, it cannot be regarded as having an interest identical to its members, for the purpose of representing them in this matter. It does not have a direct interest.

Does WALGA’s Representative status give it an indirect interest?

28      The next question is whether WALGA has a sufficient indirect interest as a representative of the local government sector, although it is not a registered organisation.

29      In Western Australian Municipal, Administrative, Clerical and Services Union of Employees and anor v The Construction, Forestry, Mining and Energy Union of Workers and Ors [2024] WAIRC 00057, the Commission in Court session dealt with an application by WALGA to intervene in proceedings brought under s 72A. The Commission said:

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

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

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

30      On that basis, the Commission in Court session was satisfied that WALGA should be granted leave to intervene in the proceedings.

31      Those same considerations apply equally in this case. I additionally note that WALGA’s role as a representative body is recognised by s 9.58(6) of the LG Act, which says that WALGA may:

(6) Without limiting the generality of subsection (3), WALGA may —

(a) of its own motion, make representations and submissions to the Minister on any matter or thing relating to or affecting its members; and

(b) with the approval of the affected members, arrange contracts of insurance on behalf of all or any of its members for any purpose.

32      WALGA is an intervenor in APPL 27 of 2023, which relates to variations to the Award, including variations to the rates of pay in the Award. The rates of pay review in APPL 27 of 2023 is in abeyance because the present proceedings were commenced. Had these proceedings not been commenced, WALGA would have been entitled to be heard in relation to the rates of pay review in APPL 27 of 2023. The final disposition of APPL 27 of 2023 also depends on the outcome of these proceedings. If the Unions fail in these proceedings, or if they discontinue these proceedings, APPL 27 of 2023 will be re‑enlivened.

33      I am satisfied that WALGA does have an indirect interest in these proceedings.

Discretionary considerations: should leave be granted to WALGA to intervene?

34      My finding that WALGA has an indirect interest is not the end of the matter. Intervention is still subject to discretionary considerations, bearing in mind the primary purpose of intervention is to ensure that natural justice is afforded to those with a sufficient interest.

Efficiency

35      Only 25 local government employers are named parties to the Award, and therefore automatically entitled to participate in these proceedings. Those named employers are all local governments who were considered likely to be state system employers when the Award was made in 2021, that is, prior to the transition of local government to the State industrial relations system from 1 January 2023: see APPL A 2 of 2020 (Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Kalamunda and Ors). In other words, local government employers who were considered to be trading corporations were not included in the Award’s list of respondents.

36      From 1 January 2023, as a consequence of the commencement of Part 2AA of the Act, and a declaration made under s 14(2) of the Fair Work Act 2009 (Cth), all local government employers became state system employers regardless of their status as trading corporations. This means that the list of respondents to the Award cannot now be regarded as representative of local government employers who are bound by the Award following the full transition to the State industrial relations system from 1 January 2023.

37      As I said earlier in these reasons, everyone agrees that non‑party local government employers have a direct interest in these proceedings. They are entitled to be permitted to intervene, should they apply to do so.

38      It is desirable that the Commission be informed of the interests of employers covered by the Award beyond those named as respondents to it. The Commission is bound under s 26(1)(c) to have regard to the interests of ‘the persons immediately concerned whether directly affected or not’.

39      The question is, how is this best achieved?

40      WALGA acknowledges that there is a possibility that it will receive instructions to act for over 100 individual local government employers. It will be open for those employers to seek leave to intervene in the proceedings, and to appoint WALGA as their agent. However, this course will:

(a) be administratively burdensome on the individual employers, WALGA and the Commission; and

(b) create potential conflicts of interest between the local governments WALGA would represent.

41      WALGA submits that granting it leave to intervene will provide over 100 local government employers with an efficient and effective means to participate in proceedings. It’s written submissions said:

21. WALGA submits that a decision to grant leave to intervene is consistent with the objects of the IR Act. Namely:

(a) facilitating via the intervention of WALGA the representation of 111 of 143 employers within an industry promotes goodwill within that industry;

(b) providing 111 Local Government employers with an efficient and effective means to participate in proceedings and ensure amicable, representative agreement is reached on the issue of wage rates and wage relativities;

(c) ensuring Local Governments who wish to be represented by WALGA in its own right are free to do so;

(d) affording 111 Local Governments, which are representative of a wide range of Local Governments across WA, an opportunity to provide the WAIRC with their views ensures the facilitation of efficient organisation and performance of work according to the needs of the industry;

(e) if leave is not granted, it is foreseeable that the interests of all bar 9 small, rural Local Governments are not appropriately represented and the needs of the industry cannot be accurately ascertained; and

(f) providing a system of fair wages and conditions of employment can only be reached where all Local Government employers who wish to be represented by WALGA in the matter are given full and fair opportunity to have their positions on the matter put to the WAIRC.

…

Single resolution

37. APPL 80 of 2023 represents an opportunity for WALGA to represent the interests of a large number of Local Government employers and avoid the WAIRC having to manage proceedings involving more than 100 parties.

42      The opposing parties point out that the way WALGA proposes to act as intervenor is confusing. On the one hand, WALGA says its intervention will ensure local governments who wish to be represented by WALGA in their own right are free to do so. They also say intervention is to enable the interests of all local governments to be represented (whether or not those local governments have different, or indeed conflicting, individual interests).

43      However, WALGA then says that it proposes to ‘provide the Commission with the majority of WA’s local government employers’ responses to APPL 80 of 2023’. This is presumably how WALGA would avoid the conflict of interest it earlier alludes to. But its participation cannot then also be the representation of all local governments.

44      WALGA submits, without providing supporting evidence, that its consultation obligations and consultation model requires it to ‘seek instructions from each independent Local Government’.

45      Even if I was able to accept this as fact, it does not explain how WALGA is then in a position to represent the interests of all local governments. Seeking instructions from each WALGA member does not mean that each and every WALGA member will provide instructions, nor does it dictate the content of the instructions. Nor can I soundly conclude that WALGA’s consultation processes will produce a ‘majority’ position. For example, I do not know how WALGA can compel a sufficient number of local government employers to provide it with sufficient instructions for it to represent any single view as the view of a majority of employers.

46      Further, the majority view is of limited value to the Commission unless there is a means for employers in the minority to also be heard, should they want to.

47      As a matter of common sense and practical reality, WALGA’s intervention can, at best, provide the Commission with, adopting Mr Mike FitzGerald’s phrase, ‘a singular perspective’, which the Commission can accept as being made on behalf of the local government sector broadly. To say intervention will achieve the representation of every local government, or even the majority of local governments, is inaccurate and an over‑statement.

48      I accept that one way for the Commission to be informed of the interests of employers broadly would be to hear from WALGA as a representative. In recognition of the fact that such interests are relevant to the Commission’s functions, the Act allows employer organisations to be registered to facilitate this.

49      However, in the absence of registration, the Commission can also be appraised of the interests of employers by hearing from the employers themselves, whether unrepresented, or represented by one or more lawyers or industrial agents. In some cases, this may involve so many different representatives that the matter becomes highly inefficient. However, in this case, WALGA itself suggests that it is in a position to obtain instructions from over 100 individual local government employers, and to be engaged as their agent. It has not foreshadowed a situation where 100 local governments will seek to intervene and be separately or additionally represented.

50      The only ‘inefficiency’ identified is the need to file separate responses and warrants to appear for the individual local government employers, and for the Commission to receive and process those. This is not a significant factor.

51      On the other hand, if WALGA is granted leave to intervene, this does not preclude the possibility of individual local governments also seeking leave to intervene. Indeed, if WALGA presents a singular position which does not represent the views of all local governments, this might induce further applications to intervene from those contradicting local government employers.

52      In circumstances where the relevant interest is a representative one, and there are alternative routes by which the Commission can be informed of local government employers’ interests, natural justice does not require that WALGA itself be granted leave to intervene. Efficiency factors weigh slightly, but not overwhelmingly, in favour of the grant of leave to intervene.

WALGA’s role as industrial agent

53      WALGA is on the record in these proceedings as the industrial agent for 14 local government employers who are named as respondents to the Award.

54      If WALGA is granted leave to intervene, it would be participating in the proceedings in two capacities: as the representative of respondents and as an intervenor in its own right.

55      As an industrial agent acting for named respondents, WALGA must act in the best interests of those principals it represents, and must act in accordance with its principals’ instructions. It must avoid a conflict between its interests and those of its principals.

56      As I have accepted that WALGA has an indirect sufficient interest in the proceedings as the peak representative body for local government, it follows that there is a potential for conflict between its interest and those of the individual respondents whom it currently represents.

57      WALGA appears to accept this is an untenable position of conflict because it stated in its written submissions:

(a) the reason it is seeking to intervene is to provide the Commission with the views of the majority of WA’s local government employers, implicitly suggesting that the views of the respondents it currently represents may not be aligned with the view of the majority of WA’s local government employers; and

(b) that if it is granted leave to intervene, it would then withdraw from representing the respondents in these proceedings.

58      However, WALGA does not explain why it is at liberty to withdraw from representing the respondents. The respondents have appointed WALGA as their agent to represent them in these proceedings. As a condition of WALGA’s registration as an industrial agent, it must comply with the Code of Conduct contained as a schedule in the Industrial Relations (Industrial Agents) Regulations 1997 (WA), s 8(2). WALGA is therefore required to adhere to the following:

3. Business integrity and diligence

…

(4) An industrial agent must treat clients fairly and in good faith, giving due regard to a client’s position of dependence upon the agent, and the high degree of trust which a client is entitled to place on the agent.

…

(6) An industrial agent must take such action consistent with the agent’s retainer as is necessary and reasonably available to protect and advance a client’s interests.

…

(8) An industrial agent must not take unnecessary steps or do work in such a manner as to increase proper costs to the client.

…

4 Confidentiality

(1) An industrial agent must strive to establish and maintain a relationship of trust and confidence with clients.

…

59      Section 8 of the Code of Conduct deals with an industrial agent’s ability to withdraw from representing a client:

(3) An industrial agent may withdraw from representing a client —

(a) at any time and for any reason if withdrawal will cause no significant harm to the client’s interests and the client is fully informed of the consequences of withdrawal and voluntarily assents to it;

(b) if the industrial agent reasonably believes that continued engagement in the case or matter would be likely to have a seriously adverse effect upon the agent’s health;

(c) if the client commits a significant violation of a written agreement regarding fees or expenses;

(d) if the client made material misrepresentations about the facts of the case or matter to the agent;

(e) if the agent has an interest in any case or matter which the agent is concerned may be adverse to that of the client;

(f) if such action is necessary to avoid the agent breaching this code of conduct; or

(g) if any other good cause exists.

60      I do not know the terms of the retainer between WALGA and the local government employers it represents. But WALGA has not attempted to show that it’s foreshadowed withdrawal complies with clause 8 of the Code of Conduct. Nor has WALGA informed me as to what alternative representation arrangements are available to the respondents they currently represent, or what cost or other impost WALGA’s withdrawal will cause to those respondents.

61      To allow WALGA to intervene while it is acting as an agent for individual respondents may induce WALGA to breach the Code of Conduct, and will likely create a state of affairs in these proceedings which undermines the proper administration of justice, public confidence in the Commission’s processes, and public confidence in the conduct of industrial agents more generally.

62      To allow WALGA to intervene on the basis WALGA will then somehow take off its industrial agent hat, may also induce a breach of the Code of Conduct, and cause prejudice, additional costs or other forms of disadvantage to the respondents whom WALGA is acting as an agent for.

63      This factor weighs strongly against granting WALGA leave to intervene.

64      Balancing the benefits of efficiency that might be achieved through granting WALGA permission to intervene, and the considerations for the proper administration of justice I have referred to, the scale is tipped against the grant of leave to intervene.

65      Accordingly, I decline to grant WALGA leave to intervene.

Disposition

66      WALGA’s application will be dismissed.