MUNICIPAL EMPLOYEES (WESTERN AUSTRALIA) AWARD 2021 AND LOCAL GOVERNMENT OFFICERS’ (WESTERN AUSTRALIA) AWARD 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2024 WAIRC 00899

DELIVERED : Friday, 11 October 2024

FILE NO. : APPL 3 OF 2023, APPL 4 OF 2023

Applicant

AND

City of Kalamunda and others

Respondents

CatchWords : Industrial Relations (WA) – Production of Documents – Redaction – Reliance on Undertakings – Power to Vary Orders

Legislation : Industrial Relations Act 1979 (WA)     

Result : Application to Vary Orders Denied

Representation:

Applicant : Mr Z Doherty (of counsel)

   Mr R Knox

Respondents : Ms S Lyon (of counsel)

   Ms J Love

  Mr K Trainer (as agent)

  Mr M Fitzgerald (as agent)

  Mr I Holland

Reasons for Decision

1         On 8 February 2023, Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU) filed an application in the Western Australian Industrial Relations Commission (the Commission) to amend the Municipal Employees WA Award 2021. The 25 respondents to the award were variously served on 9 February 2023, 20 February 2023, 21 February 2023, 22 February 2023, 23 February 2023, and 24 February 2023.

2         On 27 February 2023, a copy of the application was served on the West Australian Local Government Association (WALGA). Consequentially, as per s 29B of the Industrial Relations Act 1979 (WA) (the IR Act), WALGA became a party to these proceedings.

3         On 3 March 2023, the Shire of Dalwallinu and the Shire of Yalgoo notified the Commission that WALGA commenced to act for them.

4         On 8 March 2023, the Shire of Bruce Rock, the Shire of Boddington, the Shire of Murray, the Shire of Kondinin, the Shire of Narembeen, the Shire of Dowerin, the Shire of Halls Creek, the Shire of Harvey, the Shire of Three Springs, and the Shire of Woodanilling notified the Commission that WAGLA represented them in these proceedings.

5         On 10 March 2023, the Shire of Yalgoo and the Shire of Wagin notified the Commission that WALGA commenced to act for them.

6         On 16 March 2023, the Shire of Nannup notified the Commission that WALGA commenced to act for them.

7         On 13 March 2023, the Shire of Greenbushes, the Shire of Laverton, the Shire of Sandstone, the Shire of Victoria Plains and the Shire of Leonara filed responses in the Commission and nominated Mr Fitzgerald to represent them in proceedings.

8         On 15 March 2023, the Shire of Kalamunda notified the Commission that WALGA commenced to act for them.

9         On 16 March 2023, the Shire of Ravensthorpe notified the Commission that WALGA commenced to act for them.

10      On 16 March 2023, the Shire of Carnamah notified the Commission that WALGA commenced to act for them.

11      On 19 March 2023, the Shire of Goomalling filed a response in the Commission and nominated Mr Fitsgerald.

12      On 16 August 2023, the Shire of Wandering notified the Commission that WALGA commenced to act for them.

13      On 20 December 2023, WALGA notified the Commission that it ceased to represent the Shires of Kalamunda, Boddington, Bruce Rock, Carnamah, Harvey, Kondinin, Murray, Nannup, Narembeen, Ravensthorpe, Three Springs, Wagin, Wandering, Woodanilling, and Yalgoo.

14      On 29 January 2024, the Commission issued orders:

WHEREAS on 23 January 2024, the Commission issued directions in this matter: [2024] WAIRC 00027;

AND WHEREAS on 25 January 2024, the Western Australian Local Government Association (WALGA) notified the Commission that at the hearing on 17 January 2024, it had opposed the directions sought and that the Direction [2024] WAIRC 00027 issued was not “by consent” as described;

NOW THEREFORE the Commission notes the error in the direction issued and now pursuant to the powers conferred under the Industrial Relations Act 1979 (WA) (the Act) and hereby directs:

1. THAT the Direction [2024] WAIRC 00027 issued on 23 January 2024 be vacated.

2. THAT before 29 January 2024, and in accordance with sections 27(1)(o) and 27(1)(v) of the Act, the relevant respondents (City of Kalamunda, Shire of Boddington, Shire of Bruce Rock, Shire of Carnamah, Shire of Dowerin, Shire of Goomalling, Shire of Halls Creek, Shire of Harvey, Shire of Kondinin, Shire of Murray, Shire of Nannup, Shire of Narembeen, Shire of Ravensthorpe, Shire of Three Springs, Shire of Wagin, Shire of Wandering, Shire of Woodanilling, and Shire of Yalgoo) are to file with Registry a copy of the Equal Employment Opportunity Annual Workforce Data Spreadsheet that the relevant respondent completed and provided to the Public Sector Commission for the period of 2022‑2023.

3. THAT before 29 January 2024, and in accordance with sections 27(1)(o) and 27(1)(v) of the Act, WALGA shall file all documents relating to its ‘sector survey’ concerning proposed amendments to the Municipal Employees (Western Australia) Award 2021 (Award). This includes:

(a) The survey documents distributed by WALGA to local governments concerning the proposed amendments to the Award.

(b) The unredacted, individual responses received by WALGA from local governments.

4. THAT the disclosure of documents at direction 3 be limited to the representatives of the parties and officers of the parties’ organisations.

5. THAT the applicant’s application to vary the Award be listed for a hearing of 10 days, starting on a date not before 1 March 2024.

6. THAT no later than 14 days before the hearing date, the applicant shall file an outline of opening submissions.

7. THAT no later than 7 days before the hearing date, the respondents shall file an outline of opening submissions.

8. THAT the parties have liberty to apply on short notice.

15      At this time, WALGA was a party to the proceedings and represented the Shire of Dalwallinu and the Shire of Halls Creek in the proceedings.

16      WALGA appealed Direction 3 of the orders and applied for a stay of Direction 3.

17      On 22 February 2024, Chief Commissioner Kenner granted the stay of Direction 3 and issued the following orders:

This matter having come before me on the papers on 20 February 2024, and having heard Mr C Fogliani of counsel on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees, Mr K Trainer as agent on behalf of the Local Government, Racing and Cemeteries Employees Union (WA) and Ms S Lyon as agent on behalf of the Western Australian Local Government Association, pursuant to the powers conferred under the Industrial Relations Act 1979 (WA), I hereby declare and order by consent as follows —

(1)    THAT the applicant has a sufficient interest as required by s 49(11) of the Act to apply for the orders set out herein.

(2)    THAT appeal FBA 4 of 2024 has been instituted within the meaning of s 49(11) of the Act.

(3)    THAT the operation of direction 3 of the directions made on 29 January 2024 in APPL 3 of 2023 be and is hereby stayed pending the hearing and determination of appeal FBA 4 of 2024.

(4)    THAT the Western Australian Local Government Association undertakes that in the event the appeal in FBA 4 of 2024 is dismissed, the documents referred to in direction 3 of the directions made on 29 January 2024 in APPL 3 of 2023 will be filed within two working days of the disposition of the appeal.

(5)    THAT the parties have liberty to apply on short notice.

18      On 3 July 2024, the Full Bench dismissed the appeal [2024] WAIRC 00398.

19      On 5 July 2024, WALGA applied to the Commission for a variation of the orders issued in [2024] WAIRC 00043:

APPL 3 & 4 of 2023 - Request for redaction directions

Dear Associate to Commissioner T B Walkington

I confirm WALGA has now complied with the Commissioner’s Directions 3 in:

• APPL 3/2023, Municipal Employees (Western Australia) Award 2021, Direction issued, 2024 WAIRC 00043; and
• APPL 4/2023, Local Government Officers' (Western Australia) Award 2021, Direction issued, 2024 WAIRC 00044 (29 January 2024 Directions).

We understand that WALGA’s obligation was to file no later than 4.30pm, Friday 5 July 2024, the survey documents distributed and the unredacted individual responses concerning the proposed amendments to the ME Award and LGO Award in APPL 3 and 4 of 2023 which include variations under a s. 40 of the IR Act to:

• Casual employment;
• Employment equity;
• Redundancy;
• Annual leave for shift workers;
• Flexible working arrangements; and
• Cultural and ceremonial leave (for the LGO Award only).

We confirm WALGA has now filed with the WAIRC Registry:

• ‘Sector Survey – Questions’; and
• ‘Survey Responses All’.

Having had the Full Bench confirm in 2024 WAIRC 00391 on 3 July 2024 that 29 January 2024 Directions were for production of documents and not discovery, WALGA relies on Directions 8 of the 29 January 2024 Directions, which provide parties liberty to apply on short notice, to seek further directions to redact parts of these documents before they are inspected by/distributed to the other ‘representatives of the parties and officers of the parties’ organisations’ in APPL 3 and 4 of 2024.

WALGA seek these further directions under sections 27(1)(o), 27(1)(m) and 27(1)(v) of the Industrial Relations Act 1979 (WA) and regulation 21 of the Industrial Relations Commissions Regulations 2005 (WA).

Directions for redaction of information

1. WALGA seeks to redact the personal information of each Local Government employee at Question 1 of the ‘Survey Responses All’:

• Full name
• Job title
• Email address
• Phone number

See paragraphs 63 to 66 2024 WAIRC 00391 including:  

63        As to the confidentiality considerations, WALGA rightly concedes that this was not a reason of itself not to order production or discovery of otherwise relevant documents. It is a factor which might be relevant to the exercise of the Commission’s discretion. Confidentiality considerations might also inform the form of orders made.

            …

66         WALGA submitted that because the directions require the unredacted documents to be produced, the names of the individuals who completed the surveys on behalf of the local governments would be revealed. It was said that this would expose those individuals’ interests to officers of the union who those individuals may regularly deal with. This submission is inconsistent with the evidence. The outline of evidence sets out the survey questions, which make it clear that the survey questions are asking for a response about the local government’s position, not the position of the individual who completes the survey on behalf of the local government.

2. WALGA also seeks to redact the information provided by Local Governments who are not parties to these proceedings from the ‘Survey Responses All’.

3. Finally WALGA seeks to redact information that is outside the scope of these proceedings including about award modernisation and changes to the Local Government (Long Service Leave) Regulations) (WA) from both the ‘Sector Survey – Questions’ and

‘Survey Responses All’.

We note the confidentiality Directions 4 as part of the 29 January 2024 Directions, however without the ability to redact the above information, adequate protection may not be afforded to Local Government employers. For example, WALGA is concerned that this information may provide the unions with information that is outside the scope of these proceedings which could advance its position with regard to award variations and agreement negotiations, or hinder WALGA’s ability to consult with its members.

WALGA has provided the attached ‘Sector Survey – Questions (Redacted)’, to assist the Commission in the determination of our submissions.

20      On 8 July 2024, WASU objected to the proposed redactions, except for those concerning the long service leave matters and responded by email:

There are three types of information that WALGA is asking to be redacted from the documents it has produced to the Registry. I have not yet seen those documents, so I am operating only on what is set out in WALGA’s below email.

Issue 1: Details of the persons who submitted the survey responses

It is unclear what WALGA’s basis is for its request to redact the identity and contact details of the persons who filled out the sector surveys for their respective local government.

There is no logical need or basis to redact that information. The Full Bench has made clear that the sector survey responses reflect the relevant local government employer’s response, not the individual employee’s response.

That being said, the WASU may wish to contact the people referred to in the survey responses to better understand their local government’s responses to the WALGA survey. It is information that falls within the Peruvian Guano test as it may lead to a chain of inquiry which either assists the WASU’s case or damages WALGA’s case.

The WASU’s view is that the Commissioner’s direction [4] dated 29 January 2024 adequately protects the confidentiality of the documents filed.

Issue 2: Redacting responses of non-respondent employers

There is no logical need or basis to redact the information provided by non-respondent employers to WALGA’s sector survey. Redacting that information would circumvent the whole purpose of the document being produced in the first place.

In its evidence, WALGA has held out that the survey responses of the non-respondent employers are relevant to the just determination of the matter. Again, it fits within the scope of the Peruvian Guano test as it may lead to a chain of inquiry which either assists the WASU’s case or damages WALGA’s case.

The WASU’s view is that the Commissioner’s direction [4] dated 29 January 2024 adequately protects the confidentiality of the documents filed.

Issue 3: Information outside of the scope of the award changes

The WASU is unsure what additional information WALGA is seeking to have redacted from its filed documents.

This is because:

1. the WASU has not seen the documents;
2. WALGA has not said with sufficient precision what information it is seeking to have redacted.
   1. On this point, WALGA has said:

Finally WALGA seeks to redact information that is outside the scope of these proceedings including about award modernisation and changes to the Local Government (Long Service Leave) Regulations) (WA) from both the ‘Sector Survey – Questions’ and  ‘Survey Responses All’.

2. That sentence is ambiguous because it suggests there could be three things that WALGA is seeking to be redacted (1) information about award modernisation, (2) changes to the Local Government (Long Service Leave) Regulations, and (3) other information that presumably WALGA believes is outside the scope of the proceedings.

The WASU has an objection to the information about award modernisation being redacted because it does not know what is meant by ‘award modernisation’ or what information falls under that concept.

The WASU has no objection to information that is wholly confined to the Local Government (Long Service Leave) Regulations being redacted as that is self-evidently not relevant to the proceedings.

The WASU has an objection to any other information being redacted which has not otherwise been described by WALGA.

It may be of some assistance if

1. WALGA could provide to the Commission the filed documents with highlighting to show what information it wants redacted; and
2. the parties’ legal representatives (or advocate as the case may be) being permitted to view the documents with the highlighting so that they can indicate to the Commission whether the proposed redaction is consented to or not.

The WASU’s view is that the Commissioner’s direction [4] dated 29 January 2024 adequately protects the confidentiality of the documents filed plus any highlighting.

21      The Local Government, Racing and Cemeteries Union (WA) (LGREU) and the Shires of Bridgetown, Greenbushes, Goomalling, Laverton, Leonora, Sandstone, Victoria Plains, and Waroona notified the Commission of their objections to WALGA’s application. At the hearing on the redaction application, LGREU was represented by one of its officers and the Shires were all represented by the same industrial agent.

22      The Shires of Goomalling, Narembeen, Nannup, Kondinin, Carnamah, and Harvey informed the Commission and parties to the proceedings they supported WALGA’s application but did not take part in the hearing.

23      At the hearing WALGA represented itself only.

24      The Shire of Yalgoo was represented by their Chief Executive Officer.

Commission Lacks Power

25      LGREU contends that the Commission is without power to make the variations sought by WALGA because the orders were issued by another authority and the Commission lacks the power to vary the orders issued on 22 February 2024.

26      WALGA did not address the issues of whether the undertaking given in the stay proceedings and the fact of a consent order, and its terms having been issued in the stay proceedings precluded the Commission from now making further orders or varying orders.

27      WALGA refers the Commission to s 27 of the IR Act and submits that the Commission may vary the orders previously issued. However, WALGA did not address the power of the Commission to vary orders made out of stay proceedings.

28      An application to stay orders of the Commission is made pursuant to s 49(11) of the IR Act and is made in the process of an appeal to the Full Bench. Section 29(2) of the IR Act requires that an application of this nature must be heard by the presiding Commissioners of the Full Bench, who are allocated the appeal against the primary Commissioner’s decision.

29      This Commission does not have the power to vary an order made by the Chief Commissioner pursuant to s 49(11) of the IR Act. The stay orders must stand. This Commission cannot vary orders that are contrary to the orders issued in the disposal of an appeal and stay applications.

Reliance on Undertakings

30      WASU and LGRECU both contend that they relied on the undertaking as it was expressed by WALGA. The undertaking proposed by WALGA was that it would file the documents within 2 working days, and it did not make any limitations or seek to reflect the variations it now seeks.

31      In its application for a stay of the orders pending the outcome of its appeal, WALGA stated it ‘is prepared to offer an undertaking that in the event that the Appeal is not successful, and the Appealed Direction is upheld, it will file the documents within 2 working days of the outcome of the Appeal.’

32      The undertaking was a commitment freely given by WALGA in order to exercise a right. Even if the Commission has the power to vary orders contrary to orders issues from a stay application, which it does not, it would be unfair to the parties in the proceedings who relied on WALGA’s undertakings for the Commission to grant WALGA’s subsequent application.

Res Judicata

33      In relation to the proposal by WALGA to redact parts of the documents provided to other parties, it is clear this issue was ventilated at the hearing at first instance, subsequently considered by the Full Bench in the appeal and addressed in their reasons for decision. The scope of the orders, the information setting out the identity and work contact details and the application to organisations not parties to the award and/or proceedings, was also considered by the Full Bench in the appeal and addressed in their reasons for decision.

34      The Shire of Yalgoo submitted that the employee who completed the survey would have answered from an operational perspective, which may differ from the views of the Shire’s Council which would respond from a strategic perspective. If this is the case, then, I would consider this favours the identity and contact details of the employee who completed the survey being made available to all parties so that they may ascertain the rationale and basis for the answers given to the survey questions.

35      The variations sought by WALGA are effectively a rehearing of issues that have been previously agitated at both the first instance hearing and the appeal. The doctrine of res judicata precludes the Commission from rehearing issues previously decided.

Conclusion

36      For the reasons set out the application to vary orders is denied.