MUNICIPAL EMPLOYEES (WESTERN AUSTRALIA) AWARD 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00496

DELIVERED : MONday, 22 July 2024

FILE NO. : APPL 90 OF 2024

Applicant

AND

Western Australian Municipal, Administrative, Clerical and Services Union, City of Kalamunda, Shire of Boddington, Shire of Bridgetown Greenbushes, Shire of Bruce Rock, Shire of Carnamah, Shire of Dalwallinu, Shire of Dowerin, Shire of Goomalling, Shire of Halls Creek, Shire of Harvey, Shire of Kondinin, Shire of Laverton, Shire of Leonora, Shire of Murray, Shire of Nannup, Shire of Narembeen, Shire of Ravensthorpe, Shire of Sandstone, Shire of Three Springs, Shire of Victoria Plains, Shire of Wagin, Shire of Wandering, Shire of Waroona, Shire of Woodanilling, Shire of Yalgoo

Respondents

City of Busselton, City of Canning, City of Kalgoorlie – Boulder, City of Stirling, City of Subiaco, City of Bayswater, Shire of Gnowangerup, Western Australian Local Government Association

Intervenors

CatchWords : Industrial Law (WA) – Application to intervene in the proceedings – Whether the intervenor has an indirect interest in the proceedings – Whether there are discretionary considerations which militate against granting it leave to intervene – Leave to intervene granted – Application allowed

Legislation : Industrial Relations Act 1979 (Cth)

Local Government Act 1995 (WA)

Result : Application allowed

Representation: (on the papers)

Applicant : Mr K Trainer

First Respondent : Mr R Knox

Western Australian

Local Government

Association  : Ms J Love

Case(s) referred to in reasons:

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

Western Australian Municipal, Administrative, Clerical and Services Union of Employees and another v City of Kalamunda and others [2024] WAIRC 00071; (2014) 104 WAIG 244

Western Australian Municipal, Administrative, Clerical Services Union of Employees v The Construction, Forestry, Mining and Energy Union of Workers [2024] WAIRC 00057; (2024) 104 WAIG 165

Decision

1         The Local Government, Racing and Cemeteries Employees Union (WA) (LGRCEU) has applied to the Commission to vary the Municipal Employees (Western Australia) Award 2021 to add a new clause proposed to be headed ‘Disciplinary Procedure’. The proposed clause sets out a process which an employer would be required to adhere to when commencing any process which has the potential to result in any form of disciplinary action against an employee.

2         As required by s 29A(3) the Industrial Relations Act 1979 (Cth), the LGRCEU named each of the 25 employer parties to the Award as respondents to the application. It also named the Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU) as a respondent, as it is a named union party to the Award.

3         The Western Australian Local Government Association (WALGA) has applied under s 27(1)K of the Act to intervene in the proceedings.

4         WALGA is neither a named party to the Award, nor an employer bound by it. It seeks to intervene in its capacity as the peak representative body for local governments in Western Australia on the basis that it has a substantial and sufficient indirect interest in the outcome of the proceedings given the variation will have a significant impact on the rights and obligations of its members.

5         The LGRCEU and WASU (the Unions) oppose WALGA’s application to intervene.

6         I directed that WALGA’s application to intervene be dealt with on the papers. I have received and read written submissions filed by the Unions opposing the application and written submissions by WALGA in response to WASU’s submissions.

7         On 17 July 2024, I issued orders granting WALGA permission to intervene in the proceedings as I am satisfied that WALGA has a sufficient indirect interest in these proceedings and there are no relevant considerations which warrant refusing WALGA permission to intervene in light of that interest. These are my reasons for making that order. 

Relevant considerations

8         In Western Australian Municipal, Administrative, Clerical and Services Union of Employees and another v City of Kalamunda and others [2024] WAIRC 00071; (2014) 104 WAIG 244 (WASU v City of Kalamunda), in considering an application by WALGA to intervene in other proceedings commenced by the Unions for variation of the Award, I set out the relevant principles that apply in determining whether it is appropriate to allow intervention at [11]-[15]. If a person has a direct interest as described in Re Ludeke; Ex parte Customs Officers’ Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513, they must be permitted to intervene. In the absence of a direct interest, discretionary considerations come into play in determining whether an indirect interest is sufficient to warrant intervention.

9         Also, in WASU v City of Kalamunda, I concluded that WALGA’s representative status did give it an indirect interest in proceedings concerning variations to the Award: see [29]-[33].

10      In its submissions at [18], the LGRCEU concedes that the considerations in determining whether WALGA has an indirect interest apply equally in this matter. That concession is proper. The conclusion that I reached in WASU v City of Kalamunda concerning the nature of WALGA’s indirect interest in the proceedings applies equally to these proceedings.

11      Accordingly, whether WALGA is to be permitted to intervene will depend on discretionary considerations, including case management considerations.

LGRCEU’s position

12      In its submissions opposing WALGA’s intervention application, the LGRCEU acknowledges the Commission’s recent observation in WASU v City of Kalamunda that it is desirable to have before it the views of employers in the local government industry beyond the named respondents to the Award. However, the LGRCEU disputes that WALGA is in the best position to provide the Commission with those views. It says at [25]:

It is conceded by WALGA that it may not be able to obtain and represent a consolidated and standard position across its membership which diminishes the prospect that it can or will be able to present an industry view and raises uncertainty as to what the term “singular perspective” means in the context of this matter. (footnotes omitted)

13      The LGRCEU’s reference to a ‘singular perspective’ picks up the terminology WALGA uses in its application to describe its foreshadowed role in the proceedings.

14      The LGRCEU also points out that several local governments are represented in these proceedings in their own right and so can provide the Commission with their views and interests directly. This means WALGA cannot speak on behalf of those local governments.

15      The LGRCEU submits that WALGA is essentially seeking to represent the interests of a selected group of councils, who want WALGA to represent their interests. It says this is problematic, because WALGA cannot both represent the industry as a whole and advance the interests of a subgroup of the membership. It says this creates the same situation of conflict which resulted in an application to intervene being declined in WASU v City of Kalamunda. It also says it will unnecessarily complicate the proceedings without providing meaningful assistance to the Commission.

WASU’s position

16      WASU’s grounds for opposing the application are as follows.

17      WASU says that the Commission can be satisfied that it will receive a sufficiently diverse cross-section of a significant number of local governments sufficiently informed to determine the application. It notes that 32 local governments are party to or interveners in the proceedings including five large metropolitan local governments, two large regional city local governments and 25 small regional shire local governments.

18      Like the LGRCEU it says that WALGA cannot provide a broad representative view or ‘singular perspective’ of the local government sector because the 32 local government parties and interveners offer a diverse view. In other words, it says there is no ‘singular perspective’ of the local government industry.

3. WALGA has not explained how it has consulted or will consult with its members or how it can represent views of its members in a representative way. Its interest is therefore vague and uncertain.

19      WALGA has not ruled out that it may accept instructions to act as agent for local governments in the proceedings after the intervention application is determined. If it does so, this would result in the same conflict of interest and undermining of the proper administration of justice which led to the Commission refusing WALGA leave to intervene in WASU v City of Kalamunda.

20      Granting leave to intervene will result in duplication and inefficiency.

21      WASU suggests that permitting intervention would undermine the scheme of the Act which provides that parties to proceedings can appear in person, by agent or by a legal practitioner, effectively circumventing the provisions of the Act and regulations which enable the Commission to have confidence that an agent is acting in a representative capacity. It says the Commission cannot trust that WALGA is exercising a representative function for non-party local governments.

22      Finally, WASU says that permitting WALGA’s intervention would incentivise unregistered organisations to avoid registration under the Act.  This may be contrary to the purposes of s 6(e) of the Act.

Consideration

23      Much of the Unions’ cases opposing WALGA’s intervention focus on the nature and quality of the case that WALGA might advance in the substantive proceedings and present as being ‘representative’ or a ‘singular perspective’. Essentially, they attempt to unpick and unravel how WALGA describes its representative capacity.

24      These observations might be relevant, ultimately, to the merits depending on what case WALGA may advance in the substantive proceedings. But they do not assist me to determine whether WALGA’s interest is sufficient to warrant intervention. Where fairness requires that an opportunity be given to a party with a sufficient interest to be heard, it does not demand that party advance a particular case or advance a case in any particular way. The right to be heard can be exercised in any number of ways, including by testing the LCRCEU’s case.

25      It does not matter whether WALGA’s position taken in the proceedings is ‘representative’ of local government employers or a sub-set of individual local government employers, or neither of these. WALGA’s involvement is a consequence of itself having a sufficient indirect interest in the outcome of the proceedings. Its position taken in the proceedings will simply be WALGA’s position.

26      It is self-evident that WALGA is in a position to present to the Commission a position about the impacts of the proposed variations on the local government sector by virtue of its own role and involvement in it. It does not need to present this position vis-à-vis individual local governments. As the Commission said in Western Australian Municipal, Administrative, Clerical Services Union of Employees v The Construction, Forestry, Mining and Energy Union of Workers [2024] WAIRC 00057; (2024) 104 WAIG 165 at [2]-[3]:

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 part of its representative function on behalf of local government entities, WALGA engages in the industrial relations policy, legislative reform and advocacy on behalf of members, in employee relations and industrial relations matters. 

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.

27      WALGA’s role as a representative body is also recognised by s 9.58(6) of the Local Government Act 1995 (WA).

28      These considerations also dispose of WASU’s submissions about the role of representatives in the proceedings.

29      I am not concerned about the potential for a conflict of interest to arise by virtue of WALGA acting as agent for individual local governments as well as in its own right. WALGA has not suggested it would take this course. As I understand  WALGA’s submissions, WALGA would see itself as free to accept instructions to act as agent for individual local governments if it were refused permission to intervene in these proceedings. I do not understand WALGA to be suggesting that it would act as agent in circumstances where it was permitted leave to intervene and participate in the proceedings in its own right. My reasons in WASU v City of Kalamunda set out why such a situation would undermine the proper administration of justice, and WALGA’s submissions demonstrate an understanding of the reasoning in that case.  The issue WASU foreshadows is hypothetical and unlikely to arise. If it was to arise, the Commission has power to act to prevent the abuse of its process.

30      I do not agree with the suggestion that WALGA’s involvement in the proceedings will result in inefficiency. Rather, many non-party local government employers with a direct interest in the proceedings, and therefore entitled to intervene, may elect not to do so given WALGA’s involvement. 

31      That WALGA is not a registered organisation is not a barrier to intervention either. If it were a registered organisation, it would be entitled to intervene as having a direct interest, equal to the direct interest of its members: Re Federated Miscellaneous Workers Union of Australia (1993) 49 IR 262; (1993) 73 WAIG 564 at 268. The Commission’s power to permit intervention under s 27(1)(k) is not limited to registered organisations and there are many instances where the Commission has granted leave to intervene to WALGA and other non-registered organisations such as peak industry bodies.

Conclusion

32      I am satisfied that WALGA does have a sufficient and indirect interest in these proceedings, and that there are no discretionary considerations which militate against granting it leave to intervene. It is appropriate for the Commission to hear from WALGA as the recognised representative body for the local government sector in relation to the application to vary the Award.