APPLICATIONS PURSUANT TO S 72A

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

COMMISSION IN COURT SESSION

CITATION : 2024 WAIRC 01044

DELIVERED : Monday, 16 December 2024

FILE NO. : CICS 5 OF 2023

Second Intervenor

FILE NO. : CICS 8 OF 2023

Second Intervenor

FILE NO. : CICS 9 OF 2023

Second Intervenor

Catchwords : Industrial Law (WA) – Application for dismissal under s 27(1)(a) – Relevant principles applied – Requirements of s 72A – Consideration of statutory provisions – Broad discretion conferred – No requirement for application of guidelines in cases for each enterprise – Application dismissed

Legislation : Fair Work Act 2009 (Cth)

Industrial Relations Act 1979 (WA) s 6(e), s 26(1), s 26(3), s 27(1)(a), s 72A, s 72(1)

Local Government Act 1995 (WA) s 2.5 

Hospitals and Health Services Act 1927 (WA) 

Result : Order issued

Representation:

Applicant : Mr J Blackburn SC of counsel and with him Mr C Fogliani of counsel on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees

Respondent : Mr O Fagir of counsel and with him Mr M Cox of counsel on behalf of the Construction, Forestry, Mining and Energy Union of Workers

First Intervenor : Mr K Trainer as agent on behalf of the Local Government, Racing and Cemeteries Employees Union (WA)

Second intervenor : Mr N Ellery of counsel on behalf of the Western Australian Local Government Association

Case(s) referred to in reasons:

Metals and Engineering Workers’ Union – Western Australian Branch & Ors v Coflexip Asia Pacific Pty Ltd (1994) 74 WAIG 1507

Re Application by the Hospital Salaried Officers Association of Western Australia (Union of Workers) and the Civil Service Association of Western Australia (Incorporated) (1996) 76 WAIG 1673

The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431

The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers and The Construction, Forestry, Mining and Energy Union of Workers [2012] WAIRC 00032; (2012) 92 WAIG 102

TJ. Ruane v Woodside Offshore Petroleum Pty Ltd (1990) 71 WAIG 913

Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch and The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1996) 76 WAIG 4877

Reasons for Decision

THE COMMISSION IN COURT SESSION:

1          In the course of the proceedings in these matters, and before the CFMEUW opened its case, the CFMEUW made an application under s 27(1)(a) of the Industrial Relations Act 1979 (WA) that the substantive proceedings, brought by the WASU, should be dismissed.  In short, the basis for the CFMEUW application was an argument that the terms of s 72A of the Act do not support a case advanced in respect of multiple enterprises, in this case 146 local governments, without the need for specific findings to be made concerning the settled criteria for consideration under s 72A, in respect of each of the individual enterprises.  It was contended that the basis upon which the WASU has advanced its case, was to invite the Commission in Court Session to make findings with respect to the entirety of the local government industry in this State, and not in respect of each individual local government enterprise, as was asserted by the CFMEUW as being the requirement of s 72A of the Act.

2          The application was opposed by the WASU, the LGRCEU and the WALGA.  After hearing arguments for and against the application the Commission in Court Session adjourned briefly to consider the application. On resuming, the Commission indicated that for reasons to be published in due course, the CFMEUW application would be dismissed. In an overall sense, the Commission in Court Session indicated that the reasons for the dismissal of the application, were those largely contained in the submissions in response made by the WASU.  These are our reasons for so deciding.

The application

3          The CFMEUW application was made under s 27(1)(a) of the Act which provides as follows:

27. Powers of Commission

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

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

4          Section 27(1)(a) confers a broad discretion on the Commission to dismiss or refrain from further hearing a matter on various bases as set out.  The CFMEUW did not articulate any particular power under s 27(1)(a) upon which it relied, and given that it was contended that the WASU case could not, as advanced, succeed, we take it to be an application under s 27(1)(a)(iv) that the substantive application should be dismissed ‘for any other reason’.

5          The power of the Commission to dismiss a matter or to refrain from further hearing a matter, is a broad power.  In The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2013] WAIRC 00754; (2013) 93 WAIG 1431 (PTA case) as to s 27(1)(a) of the Act, with particular reference to the public interest, Kenner C (as he then was) observed at [21] – [23] as follows:

[21] Section 27(1)(a) of the Act provides as follows:

27. Powers of Commission

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

(a) at any stage of the proceedings dismiss the matter or any part of it or refrain from further hearing or determining the matter or part if it is satisfied —

(i) that the matter or part is trivial; or

(ii) that further proceedings are not necessary or desirable in the public interest; or

(iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or

(iv) that for any other reason the matter or part should be dismissed or the hearing of it discontinued, as the case may be;

[22] In another context, in The Construction, Forestry, Mining and Energy Union of Workers v Skilled Rail Services Pty Ltd (2006) 86 WAIG 1268, I considered the meaning of the “public interest” for the purposes of s 36A(1) of the Act. In referring to s 27(1)(a)(ii) of the Act, empowering the Commission to dismiss or refrain from further hearing a matter, I referred to QEC and at par 35 I observed as follows:

35 Given the construction I have placed on s 36A(1) of the Act, it is for the respondent to demonstrate that it would not be in the public interest for the Proposed Award to the made. The notion of the “public interest” is somewhat amorphous. Consideration of this issue is similar to the terms of s 27(1)(a)(ii) of the Act empowering the Commission to dismiss or refrain from further hearing a matter on the basis that further proceedings are not necessary or desirable in the public interest. Similar provisions exist in other industrial jurisdictions. In Re Queensland Electricity Commission and Ors; Ex-parte Electrical Trade's Union of Australia (1987) 21 IR 151 the High Court in proceedings for prerogative writs against a Full Bench of the then Australian Conciliation and Arbitration Commission, held that for the purposes of the then s 41(1)(d)(iii) of the Conciliation and Arbitration Act 1904 (Cth) that “Ascertainment in any particular case of where the public interest lies will often depend on a balancing of interests, including competing public interests, and be very much a question of fact and degree” (per Mason CJ and Wilson and Dawson JJ). In the same case, Deane J in dealing with the refrain from hearing power in the public interest observed at 162:

“The right to invoke the jurisdiction of the courts and other public tribunals of the land carries with it a prima facie right to insist upon the exercise of the jurisdiction invoked. That prima facie right to insist upon the exercise or jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is “amenable to the jurisdiction” of the courts and other public tribunals (cf Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed (1959), p 193). In the rare instances where a particular court of tribunal is given a broad discretionary power to refuse to exercise its jurisdiction on public interest grounds, the necessary starting point of a consideration whether such a refusal would be warranted in the circumstances of a particular case in which its jurisdiction has been duly invoked by a party must ordinarily be the prima facie right of the party who has invoked the jurisdiction to insist upon its exercise (cf per Higgins J, Merchant Service Guild of Australasia v Commonwealth Steamship Owners’ Association [No 1] (1920) 28 CLR 278 at 281). That position is a fortiori in a case where no other court or tribunal, Commonwealth or State, possesses jurisdiction fully to deal with the particular dispute. Were it otherwise, effective access to the courts and other public tribunals would be not a right which could be denied in an exceptional case on the grounds of extraordinary consideration of public policy but an uncertain privilege which could be withheld at any time on unconfined and largely unexaminable discretionary grounds (see, generally, Friedman, “Access to Justice: Social and Historical Context: in Cappelletti and Weisner (eds) Access to Justice, vol II, book 1 (1978) pp 5ff; Raz, The Authority of Law, (1979), at p 217).”

[23] I adopt what I said in Skilled Rail Services for present purposes. The discretion open to the Commission to be exercised under s 27(1)(a) is a broad one. A gloss should not be put on the words of the section to import any particular level of satisfaction to be achieved by the Commission for the exercise of the power.  However, given that a party is entitled to invoke the Commission’s jurisdiction, and prima facie expect it to be exercised there is an onus on the Authority in this case, to persuade the Commission, that in the circumstances, that prima facie right should be overridden: QEC per Deane J at 163. Further, in the exercise of the discretion, the Commission is required, as in all matters before it, to have regard to its statutory obligations under s 26(1) of the Act: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 68 WAIG 4.

6          Given that a person who brings proceedings before the Commission is entitled to have the jurisdiction invoked, the statutory power to dismiss a matter under s 27(1)(a) of the Act is to be exercised sparingly.  Whilst the PTA case concerned a dismissal application in the public interest under s 27(1)(a)(ii), the same broad approach should be adopted to the other bases of the power in s 27(1)(a)(i), (iii) and (iv), in that the power should only be exercised in a clear case.

7          It was submitted by the CFMEUW that as originally commenced, the WASU application under s 72A of the Act in respect of the City of Rockingham was a ‘conventional’ application having application to a particular enterprise.  It was submitted that thereafter, with the commencement of application CICS 9 of 2023, and the joinder of that application with the original application against the City of Rockingham in application CICS 5 of 2023, this represented a dramatic extension to effectively seek the expulsion of the CFMEUW from the local government industry throughout the State.

8          The principal submission advanced by the CFMEUW was that the terms of s 72A require the Commission in Court Session to consider whether an order, in the terms as sought by the WASU, should be made in respect of each of the 146 enterprises in the local government industry, which enterprises are set out in the applications.  The submission was that to enable an order to be made in favour of the WASU, the Commission in Court Session would need to be satisfied that there can be a finding made in respect of each of the relevant factors as set out in the cases, for each of the named local government enterprises.

9          Accordingly, the CFMEUW submitted that given the basis upon which the case has been conducted by the WASU, the WASU, the LGRCEU and the WALGA as interveners, seek findings from the Commission applicable to the local government industry as a whole.  The CFMEUW submitted that this basis for seeking orders is evident from the written submissions and the oral submissions made by the WASU and the intervenors.  No attempt has been made by the WASU as the applicant, or by the intervenors, to support relevant findings and conclusions to be reached in respect of each enterprise in the local government industry.  It was submitted that after some 17 days of hearing, if it is the intention of the WASU and the intervenors, to advance such a case, then it has yet to be disclosed.  The submission was made that no particular findings that are open to be made against any particular local government enterprise, have been identified. The overall approach can be summarised from [11] of the CFMEUW submissions where it is stated:

11. If any enterprise-specific findings are sought, or enterprise specific analysis is to be conducted, that fact has not yet been disclosed—17 days into the hearing and at the point where the proponents’ cases are closed. The CFMEU knows nothing of any particular finding sought, or any particular conclusion on the relevant criteria, sought in respect of any particular council. The CFMEU has no idea, for example, what if any submission is made about employee preferences at the City of Perth; or what community of interest might exist between the workforce of the Shire of Lake Grace and the CFMEU membership generally; or what the preference the Town of Mosman Park is said to have in relation to CFMEU coverage; or what impact the orders would have on the freedom of association of the workforce of the Rivers Regional Council; or what the historical membership patterns are at the Shire of West Arthur; or what is said about the relative capacities of the WASU, LGRCEU and CFMEU to service the CFMEU’s potential membership at the City of Belmont. The CFMEU has no idea how it is said that such facts as disclosed in relation to any particular enterprise relate to the objects of the Act or otherwise combine to require any particular determination in relation to that enterprise.

10      It was also contended by the CFMEUW that at this stage of the case, it would be too late, and unfair, for the WASU and the intervenors to change course, and adopt the approach of identifying findings that may be open to be made by the Commission in Court Session in respect of each local government enterprise in respect of which the applications have been brought.  It was further submitted that the Commission could not, of itself, make findings of fact or reach conclusions with respect to each local government enterprise, independent of the cases put on that basis by the WASU and the intervenors.  Accordingly, it was contended by the CFMEUW that the WASU case, unsupportable by relevant and necessary findings based upon each local government enterprise, cannot succeed and the applications should be dismissed.

11      Finally, as to whether the CFMEUW should be put to its election, if its application can be viewed as a ‘no case to answer’ dismissal application, it was submitted that on the basis of previous authority, such a course is generally not appropriate in the Commission’s jurisdiction, paying due regard to ss 26(1) and 26(3) of the Act, given the broad discretion conferred by the Act:  TJ. Ruane v Woodside Offshore Petroleum Pty Ltd (1990) 71 WAIG 913.  That is so.

Consideration

12      Section 72A of the Act is in the following terms:

72A. Employee organisations, orders as to whom they represent

(1) In this section —

enterprise means —

(a) a business, or part of a business, that is carried on by a single employer; or

(b) a business, or part of a business, that is carried on by 2 or more employers as a jointventure or single enterprise; or

(c) activities carried on by a public authority, or part of those activities; or

(d) a single project, undertaking or place of work;

organisation means an organisation of employees and includes the Western Australian Branch of the Australian Medical Association Incorporated.

(2) An organisation, an employer or the Minister may apply to the Commission in Court Session for an order —

(a) that an organisation has the right, to the exclusion of another organisation or other organisations, to represent under this Act the industrial interests of a particular class or group of employees employed in an enterprise who are eligible for membership of the organisation;

(b) that an organisation that does not have the right to represent under this Act the industrial interests of a particular class or group of employees employed in an enterprise has that right;

(c) that an organisation does not have the right to represent under this Act the industrial interests of a particular class or group of employees employed in an enterprise who are eligible for membership of the organisation.

(3) The Registrar must publish notice of an application under subsection (2) in the Industrial Gazette and —

(a) in a newspaper circulating throughout the State; or

(b) on an internet website maintained by the Commission,

and the application must not be listed for hearing before the Commission in Court Session until after the expiration of 30 days from the day on which the notice is first published.

(4) On an application under subsection (2), the Commission in Court Session may make one or more of the orders applied for, and may make any such order subject to any condition or limitation.

(5) The Commission in Court Session must not make any order described in subsection (2) without giving persons who, in its opinion, have a sufficient interest in the matter an opportunity of being heard.

(6) Where an order is made under subsection (4), the Commission in Court Session must refer the matter to the Chief Commissioner unless it is satisfied that the rules of the organisations concerned do not need to be altered.

(7) On a referral under subsection (6) the Chief Commissioner must, after giving the organisations concerned an opportunity of being heard, make such alterations (if any) to the rules of the organisations as are, in the Chief Commissioner’s opinion, necessary to reflect the order made by the Commission in Court Session.

(8) An alteration must be made by instrument in writing signed by the Chief Commissioner and takes effect on a day specified in the instrument.

13      The discretion conferred, formerly on the Full Bench of the Commission, and now the Commission in Court Session, is very broad. In Metals and Engineering Workers’ Union – Western Australian Branch v Coflexip Asia Pacific Pty Ltd and Ors (1994) 74 WAIG 1507 (Coflexip case), the Full Bench, in making orders under s 72A in favour of the applicant in respect of an industrial project to be established at Fremantle Harbour, observed at 1508:

The provisions of section 72A of the Act give the Commission, constituted by the Full Bench, a wide discretion to determine whether an organisation should have the right to exclusively represent the industrial interests of employees employed in an enterprise or workplace. As is the case with the similar, but not identical, provision in section 118A of the Commonwealth Industrial Relations Act 1988 the section gives the Commission a general discretion 'confined only by the scope and purpose of the legislation" (see: O'Sullivan v. Farrow (1990) 168 CLR 210 at 216; and see too: Motor Traders Association of New South Wales and Others v. The National Union of Workers and Others (1991) 42 IR 401 at 411). There is thus, as the Full Bench of the Australian Industrial Relations Commission pointed out in Motor Traders Association of New South Wales and Others v. The National Union of Workers and Others (supra) at page 412 in respect of the Commonwealth legislation, no reason why the powers arising under the section "cannot be exercised to give effect to what the Commission thinks is desirable having regard to the scope and purposes" of the Act. Clearly, however, the onus is on the Applicant in any particular case to establish good and cogent reasons why the order should be made and if relevant displace the existing rights of a registered organisation (see: Re Queensland Alumina Ltd (1991)42 IR 304 at 321). It is a natural incident of an application of section 72A that it will often erode the membership entitlement of one or more registered organisations, and the fact that it does so cannot in itself be a basis for rejecting the application. The object of the section which is patently directed towards, amongst other things, the removal of overlapping of membership in appropriate cases would otherwise be defeated. In the final analysis, whether or not an order is to be made will depend on the particular circumstances of the case.

14      Whilst in a series of decisions of the Full Bench, a number of factors have been identified to guide whether orders under s 72A should be made, it is important to appreciate that these are not statutory factors set out in s 72A itself, and the broad discretion of the Commission under s 72A of the Act is otherwise at large.

15      The point now raised by the CFMEUW in this application, was not a point taken in the opening written outline of submissions filed by the CFMEU in opposition to the orders sought.  Additionally, no such point was taken by the CFMEUW since the filing of its written opening submissions, at any stage in the hearing of the matter that it is necessary, as is now contended, that the Commission in Court Session must have before it, evidence and material to enable it to make findings and reach conclusions for each of the factors identified on the cases, in respect of each local government enterprise in respect of whom orders are sought in the present proceedings.

16      It is trite that the powers of the Commission, including under s 72A, are to be exercised having regard to s 26(1) of the Act.  Section 26(1) provides as follows:

26. Commission to act according to equity and good conscience

(1) In the exercise of its jurisdiction under this Act the Commission —

(a) must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and

(b) must not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

(c) must have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and

(d) …

…

(vi) the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises;

(vii) the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises.

…

17      Additionally, regard is to be had to the objects of the Act when considering statutory powers, and relevant for present purposes is s 6(e) which provides as follows:

6.   Objects of Act

…

(e) to encourage the formation of representative organisations of employers and employees and their registration under this Act and to discourage, so far as practicable, overlapping of eligibility for membership of such organisations; and

…

18      There is no issue in these matters that the local government entities, the subject of the applications are ‘enterprises’ for the purposes of s 72(1) of the Act.  Section 72A is concerned with representational rights of organisations that are registered under the Act.  It enables the Commission in Court Session to make an order for exclusive coverage where more than one organisation has coverage; to confer coverage where it does not exist; and to exclude coverage where it does exist. 

19      Application CICS 5 of 2023 is an application by the WASU that seeks an order under s 72A(2)(a) of the Act that it has the right, to the exclusion of the CFMEUW, to represent the industrial interests of the outside workforce at the City of Rockingham.  In the alternative, the application seeks an order under s 72A(2)(c) of the Act, that the CFMEUW does not have the right to represent this class or group of employees.  Application CICS 9 of 2023 seeks the same orders as in application CICS 5 of 2023, with respect to ‘each enterprise’ set out in Schedule A to the application.  Schedule A of the application lists each enterprise, in respect of which an order in the terms of the application, is sought.  The list contains 145 local government enterprises, each of which is a body corporate with perpetual succession and a common seal, under s 2.5 of the Local Government Act 1995 (WA).

20      Both applications, on their face, are consistent with the terms of s 72A in that both seek orders, permitted to be made, in respect of the enterprises set out in each application.  If the orders sought are made by the Commission in Court Session, the orders so made can only extend to those same individual enterprises and no others.

21      The ‘particular class or group’ of employees for the purposes of s 72A(2) of the Act are specified in the applications as ‘outside employees’, a well-known and understood grouping of those employees engaged in local government enterprises who perform work in other than the administrative functions of local government in areas such as parks and gardens maintenance, maintaining roads and footpaths, maintaining facilities, equipment and vehicles, and waste management, amongst other functions and activities.

22      There is no issue in these proceedings that the persons the subject of the orders sought are ‘employees’ for the purposes of the Act.  There is no dispute in these matters that the orders sought extend to enterprises that exist.  The scope of the power in s 72A is limited to ‘enterprises’, as defined in s 72A(1) of the Act, that exist or the evidence discloses will come into existence: Re Application by the Hospital Salaried Officers Association of Western Australia (Union of Workers) and Civil Service Association of Western Australia (Incorporated) (1996) 76 WAIG 1673 (HSOA case) per Sharkey P at 1687; The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers and The Construction, Forestry, Mining and Energy Union of Workers [2012] WAIRC 00032; (2012) 92 WAIG 102 (Brickworks case) per Smith AP at [133].

23      There is nothing on the face of the applications by the WASU that purport to seek representational orders under s 72A of the Act in respect of the ‘local government industry’.  Given no such language exists in s 72A, there would seem to be little doubt that such an order, if sought and made in those terms, would be beyond power.  Nothing in the terms of s 72A of the Act, precludes an application seeking orders to be made extending to more than a single enterprise.

24      This approach was taken in the HSOA case, in which the HSOA and the CSA sought orders from the Full Bench under s 72A in relation to professional, administrative, clerical, technical and supervisory employees employed in the public hospital sector in the State.  The HSOA made a large number of applications in respect of health services conducted throughout the State.  The CSA filed one application, in respect of some 150 separate incorporated hospital boards of management, in respect of each metropolitan and regional hospital throughout the State, with each constituting an ‘enterprise’ for the purposes of s 72A(1) of the Act: (1995) 75 WAIG 1073 – 1077.  Each hospital board was an incorporated entity under the Hospitals and Health Services Act 1927 (WA) and were vested with the power to manage the delivery of hospital services and the employment of staff.

25      In its decision, the Full Bench (Sharkey P, with Beech and Gifford CC agreeing) canvased the terms of s 72A at 1687 and in particular, the meaning of ‘enterprise’ in s 72A(1).  Having regard to the definition of enterprise, Sharkey P concluded at 1688:

I am also satisfied that the public hospital centred (“Health Services”) do exist as enterprises because they are businesses carried on in each case by a single employer, in some cases by 2 or more employers, and, further, they are activities carried on by public authorities.  Those enterprises have changed or will, on the evidence, change within 12 months to become the integrated hospital and health services of which the Full Bench has heard evidence.  Currently, they all employee employees in the new enterprise, or, alternatively, will employee such employees when they are transferred to the new enterprise of hospital centred health services

I am therefore satisfied that, for the purposes of s 72A of the Act, enterprises exist as defined to enable us to make orders if all other facts or matters required to be established are established.  I am also satisfied for that reason that the applications made were competent. 

26       No issue is taken with the fact that in those proceedings, insofar as the CSA application was concerned, it was made on behalf of some 150 separate enterprises, as part of the single application, and the Full Bench also reached the view that the applications were competently made.

27       The Full Bench then considered the merits of the case in relation to a major part of the applications, that being the hospital and health services comprising the 150 or so separate hospital boards.  A separate matter was considered as a part of the s 72A application, that being the PathCentre, a single enterprise conducting pathology services for public and private hospitals throughout the State.  That is not a relevant matter for present purposes.

28       As to which organisation should have coverage, Sharkey P at 1690, referred to the ‘wide discretion’ conferred on the Commission by s 72A of the Act.  President Sharkey then considered 14 broad factors to be taken into account in that case, guiding the Full Bench in reaching its conclusions as to whether the orders should be made (at 1690 – 1692).  In considering each of them, the Full Bench did not embark upon a consideration of the application of each broad factor to each of the 150 or so individual enterprises, and nor were findings and conclusions reached by the Full Bench based on such an approach. 

29       In concluding that in respect of hospitals and health services coverage, that the HSOA should be granted exclusive industrial coverage, Sharkey P observed at 1692 as follows:

In conclusion, I take the abovementioned factors and all of the evidence, both oral and documentary, and all of the submissions into account.  The new integrated services provided by and under the administration of hospital boards still retain a substantial public hospital flavour; both organisations have coverage of the employees, but the majority are and will remain employed in the hospitals themselves; those persons covered by the CSA are very few comparatively and would cease to be CSA members; the HSOA has a longstanding coverage of public hospital employees both by constitution and award; it is a relevant and a strong consideration that one organisation cover the PACTS employees to prevent overlapping for the reasons which I have explained, notwithstanding CSA expressed employee preference and the employers have expressed a strong preference for HSOA coverage in the industry, and also the number of organisations covering PACTS employees would be reduced to one.  There is no evidence of any foreseeable serious disputation between the HSOA and the employers, and the history of industrial relations in the past seems to have been good.  The objects of the Act, to which I have referred, will also be advanced, and the merits of the applications lie with the HSOA, that being where the equity, good conscience and substantial merits of the case take me (see s.26(1)(a) and (c) of the Act).  I would make orders under s.72A of the Act, accordingly in favour of the HSOA.  I would dismiss the CSA’s application insofar as it relates to applications to cover persons employed by the integrated “hospital and health” services.  I would hear further submissions as to whether and what enterprise and what names should be identified in any order made.

30       It is clear from reading the reasons in the HSOA case as a whole, that the Full Bench considered the relevant factors in that case on the basis that they were common to each of the enterprises the subject of the applications.  There were references in the reasons for decision, to circumstances prevailing in the ‘hospital and health services industry’.  But this does not mean, and it would be mistaken to assume, that the orders sought, and the ultimate orders made by the Full Bench, applied to the ‘industry’.  Self-evidently, they did not.  There is nothing in the terms of s 72A of the Act to exclude this approach.  It is also clear from the Full Bench’s reasons read as a whole, that there were two dominant factors that persuaded the Full Bench to make the orders that it did, and they were the need to reduce the number of organisations involved in hospital and health services, and secondly, the discouragement of overlapping industrial coverage. 

31       As pointed out by the WASU in its written submissions in the substantive applications, a similar approach was also taken by the Full Bench in the Brickworks case, in which both organisations filed single applications seeking orders against multiple enterprises in the brickmaking industry. In that case, Smith AP accepted at [133] that there is no barrier to the Full Bench making orders under s 72A of the Act in respect of more than one enterprise, set out in a list in an application, as was the case before the Full Bench in those proceedings.  What is necessary however, is that the enterprises exist or there is evidence (as in the HSOA case) that they will come into existence: at [135].  This latter consideration does not arise in the present cases. 

32       A matter on which the CFMEUW placed some emphasis was Smith AP’s observations in the Brickworks case at [132], where her Honour said, in relation to s 72A matters, ‘in each case, a Full Bench must examine the specific activities of a particular business, public authority, project, undertaking or place of work’.  To an extent, it seems that the CFMEUW hung its hat on this, in bringing the present application. It is not clear as to whether Smith AP was referring to the circumstances of the matter before her, when making that observation, involving some six brickmaking businesses.  The evidence in that case was that the companies manufactured distinct types of brick products from varied materials.  The nature of the products and the descriptions of the industries that they were in, was relevant to the issue of constitutional coverage in that case.

33       That is not the case in this matter. The nature of the activities of the local government enterprises, even accepting the range of services and activities engaged in, may depend on whether local governments are band 1, 2, 3 or 4, are not matters relevant to constitutional coverage.  It does not affect the capacity of the WASU, the LGRCEU or the CFMEUW to enrol employees as members.

34       Alternatively, to the extent that Smith AP’s comment is to be seen as a statement as to the necessary basis for an order to be made under s 72A in all cases, respectfully, for the reasons to follow, we disagree with that view.

35       The other point to be made at this juncture is, contrary to the tenor of the CFMEUW submissions, and as noted above, the various factors identified in a number of Full Bench decisions, when dealing with applications under s 72A of the Act, commencing with the Coflexip case in 1994, shortly after the section was introduced by the Industrial Relations Amendment Act 15 of 1993, through to the Brickworks case in 2012, are not statutory criteria.  Significantly, as opposed to the similar s 118 and later s 118A of the then Commonwealth legislation, s 72A does not prescribe any factors that the Commission must take into account in making an order. This is entirely consistent with the breadth of the discretion conferred on the Commission by the section, in light of the objects of the Act.

36       Furthermore, the relevant factors set out in the cases are not to be seen in the nature of a ‘checklist’, each of which must be satisfied by an applicant organisation, otherwise, their case will fail.  The factors referred to in the cases are matters to guide the exercise of the very broad discretion conferred on the Commission in Court Session by s 72A.  The WASU submitted, correctly in our view, that s 72A is to not be viewed as some form of a civil ‘cause of action’, each element of which must be established on the balance of probabilities, in order for an application to succeed.  To view the matter in this way, is to misconstrue the statutory provision, and the broad discretion it confers on the Commission. 

37       To take the example of the Coflexip case as a case in point.  In that matter, there was really only one consideration, and that was the desirability of attracting a large foreign investor to establish a new specialist manufacturing plant in the State, which required, as a condition of making that investment, a single union site.  Given that the two organisations concerned in that case both had constitutional coverage of the employees who would be employed on the work in question, the Full Bench took the view that it would be in the public interest that an order be made in favour of the applicant organisation, so there would be no possibility of demarcation disputes.

38       A further consideration in these matters is that many of the factors identified in the cases, as was illustrated in the HSOA case, are common factors that extend across enterprises.  These include matters such as the community and public interest; the existence of a community of interest between the relevant organisation and the relevant employees eligible to be members; the pattern of award and industrial agreement coverage that the organisations have; constitutional coverage (although existing coverage is not necessary); the need to reduce the number of organisations and to discourage overlapping coverage; the advancement of the objects of the Act; the industrial behaviour of the organisations concerned; and the ability of the organisations to service their members. 

39       There is already a considerable body of evidence before the Commission dealing with many of these common issues.  There is also a considerable body of evidence before the Commission concerning individual local government enterprises.  As to the submissions of the CFMEUW that it is not open for the Commission in Court Session to make findings in respect of local government enterprises, that is not so.  There is a large body of evidence of current and historical award coverage at each local government enterprise, going back decades.  There is evidence of current and historical enterprise agreement coverage at all local government enterprises, that have them.  This also extends back many years.  That evidence reveals that principally, the parties to the agreements were and are the WASU and the LGRCEU.  A total of seven enterprise agreements also have the CFMEUW as an additional party.  That evidence also covers the current state of bargaining for replacement industrial agreements in the State system, as at the time of the filing of the material in accordance with the Commission’s directions.  Naturally, individual local government enterprises are identified in this evidence.

40       There is evidence of union membership in the outside workforces at local government enterprises of the WASU, the LGRCEU and the CFMEUW.  The evidence reveals a combined membership between the WASU and the LGRCEU of approximately 1,550 members and approximately 167 CFMEUW members.  The combined membership of the WASU and the LGRCEU is spread throughout the State, whereas the membership of the CFMEUW is mainly concentrated in a relatively small number of local government enterprises, principally in the metropolitan area. Related to this factor, and also the factor of the industrial behaviour of the organisations, there is also evidence of the CFMEUW enrolling persons at a number of local government enterprises who are not eligible to be members.

41       Whilst there is some evidence before the Commission as to employee preference, that is not decisive and may be regarded as a neutral factor.  In the HSOA case for example, there was no evidence on this issue from the HSOA, but there was contrary evidence from the CSA.  This was not fatal to the HSOA case, and did not preclude the Full Bench making orders in its favour.

42       As to employer preference, whilst there is often an understandable reluctance for employers to express their view one way or the other in these types of proceedings, in this case there is some evidence as to this matter in favour of the WASU applications and very little so far, to the contrary.  It is one factor only, to be weighed in the balance in the exercise of the Commission’s discretion.

43       As to constitutional coverage and eligibility for membership, the WASU and the LGRCEU between them, have constitutional coverage of all employees in local government. Both unions have coverage of the outside workforces. The CFMEUW has limited coverage as to certain classifications of employees, including carpenters, painters and some employees that may be covered by its engine driver rule.  This applies across the board in all local government enterprises. 

44       To the extent that the CFMEUW submitted that as to constitutional coverage, and patterns of membership, there needs to be some analysis of each local government enterprise to establish what work is done at each and how long the CFMEUW may have had members, this is not necessary.  As we have already observed, the evidence already establishes that the CFMEUW has a relatively small number of members in a small number of identified local government enterprises.  At the vast majority of local government enterprises, it has no membership.  There may be some grey areas in relation to the impact of the engine driver rule in relation to those outside employees who operate plant.  Conclusions as to this issue will also turn on legal argument as to the extent of the scope of the engine driver rule. 

45       In any event, irrespective of the above, it is not necessary to examine each position in every enterprise under consideration in s 72A proceedings, in order to determine the question of constitutional coverage, and it is a relevant consideration, amongst others to take into account: Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch and The Australian Liquor, Hospitality and Miscellaneous Workers Union, Miscellaneous Workers Division, Western Australian Branch (1996) 76 WAIG 4877 per Sharkey P at 4882 and Coleman CC at 4887.  The weight to be given to this factor will depend on the circumstances of each case.  The fact that s 72A(2)(b) enables the Commission to confer coverage on an organisation that does not have existing coverage, is of some significance in this respect.

46       In terms of the reduction in the numbers of organisations and the discouragement of overlapping coverage, these matters are common across all local government enterprises.  They have, in a number of cases, been held to be matters of substantial significance, having regard to the objects of the Act in s 6(e), referred to above.  This is also the case in relation to the effect of any order in terms of the interests of the WASU, the LGRCEU and the CFMEUW.  It is a factor not requiring specific enterprise by enterprise findings, and, depending on the circumstances of the case, may be a matter of significance.

47       As to the interests of the employees and of the employers, there is a substantial body of evidence before the Commission as to the representative role of the WASU and the LGRCEU, and the services provided to members and those eligible to be members.  This is both in respect of particular enterprises, and more generally.  As noted above, there is evidence as to bargaining for industrial agreements at a number of identified local government enterprises by the WASU, the LGRCEU and the CFMEUW.  Findings are open to be made as to both the capacity to represent the industrial and other interests of members as a general consideration, and also as evidenced by conduct at specific local government enterprises.

48       As to the interests of employers and the impact of any orders that may be made, an issue raised by the CFMEUW is that even if the orders sought by the WASU are made, this will not lead to a decrease in complexity concerning involvement by local government enterprises with the unions, and that the CFMEUW will retain certain rights to represent local government employees, under the Fair Work Act 2009 (Cth), for example.  Whether this will be the case or not, ultimately remains to be seen.  It is most likely to be at the periphery.  However, largely, any such outcomes will extend across the local government enterprises as a whole.  Conclusions that may be reached, that it would be beneficial to have a reduction in the number of unions overall, in such matters as bargaining for industrial agreements for example, identified as a key issue in these proceedings, do not depend on the necessity for enterprise by enterprise scrutiny in each case. 

49       As to the allegation by the CFMEUW about any residual impact of the FW Act for example, again, in reaching conclusions as to this issue, it is not necessary to make specific findings in relation to each local government enterprise in respect of which, the orders are sought.  In so far as the CFMEUW made submissions about whether provisions such as the general protections in the FW Act may continue to apply for example, it may be assumed that some smaller local government enterprises are not trading and financial corporations. There may be some peripheral impact in this respect. Specific findings, enterprise by enterprise, as appeared to be the import of the CFMEUW submissions on this issue, are quite unnecessary, for the purposes of the disposition of the substantive proceedings.

50       There is also thus far, evidence as to the industrial conduct of the organisations concerned.  This is a factor that can be extended to all local government enterprises. But there is also evidence of conduct of the CFMEUW at specific local government enterprises when seeking right of entry; when participating in bargaining for industrial agreements; and when seeking to enrol persons who are not eligible to be members of the union. As to the latter issue, there is a substantial body of evidence thus far.

51       Given the stage of the proceedings, there is some evidence as to the community of interest between the WASU, the LGRCEU and their members.  Even if this factor is ultimately neutral, having regard to all of the local government enterprises, it will simply be given little weight.

52       As to the community or the public interest and the achievements of the objects of the Act, these are global issues.  Inferences may be drawn from evidence before the Commission, impressions may be formed, and judgements made, having regard to all of the circumstances of the case.

53       In light of all of the above, the CFMEUW did not establish that an order, dismissing the substantive proceedings under s 27(1)(a) of the Act, should be made.