2025 WAIRC 00961
APPLICATION PURSUANT TO S 72A
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00961

CORAM
: CHIEF COMMISSIONER S J KENNER
SENIOR COMMISSIONER R COSENTINO
COMMISSIONER T KUCERA

HEARD
:
MONDAY, 15 SEPTEMBER 2025, TUESDAY, 16 SEPTEMBER 2025, WEDNESDAY, 17 SEPTEMBER 2025, THURSDAY, 18 SEPTEMBER 2025, FRIDAY, 19 SEPTEMBER 2025

DELIVERED : WEDNESDAY, 3 DECEMBER 2025

FILE NO. : CICS 3 OF 2025

BETWEEN
:
TRANSPORT WORKERS’ UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH
Applicant

AND

WESTERN AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES
First Intervenor

LOCAL GOVERNMENT, RACING AND CEMETERIES EMPLOYEES UNION (WA)
Second Intervenor

CITY OF GOSNELLS
Third Intervenor

Catchwords : Industrial Law (WA) – s 72A Industrial Relations Act 1979 (WA) – Seeking right to represent the industrial interests of employees – Relevant principles applied – Eligibility rules – Overlapping coverage – Employee preference – Employer preference – Freedom of association – Awards and enterprise bargaining agreements – Demarcation disputes – Union representation – Industrial behaviour – Capacity to service members – Application dismissed
Legislation : Fair Work Act 2009 (Cth) s 617(10B)
Industrial Relations Act 1979 (WA) s 6, s 6(ab), s 6(e), s 41, s 41(8), s 46, s 61, s 72A, s 72A(1), s 72A(2)(b), s 72A(3)
Industrial Relations Legislation Amendment Act 2021(WA)
Local Government Act 1995 (WA)
Result : Application dismissed
REPRESENTATION:
Counsel:
APPLICANT : MR L SLANEY ON BEHALF OF THE TRANSPORT WORKERS’ UNION OF AUSTRALIA, INDUSTRIAL UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH

INTERVENORS : MR C FOGLIANI OF COUNSEL ON BEHALF OF THE WESTERN AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES

MR K TRAINER ON BEHALF OF THE LOCAL GOVERNMENT, RACING AND CEMETERIES EMPLOYEES UNION (WA)

MR C BEETHAM OF COUNSEL ON BEHALF OF THE CITY OF GOSNELLS

Case(s) referred to in reasons:
Amalgamated Road Transport Union of Workers, Perth v Australian Workers’ Union, Westralian Branch, Industrial Union of Workers (1952) 32 WAIG 375
Burswood Resort (Management) Ltd v Australian Liquor Hospitality & Miscellaneous Workers’ Union (Unreported, WASCA, Library No 90280, 2 June 1994).
Commission’s Own Motion [2023] WAIRC 00925; (2023) 103 WAIG 1952
Hospital Salaried Officers Association of Western Australia v Civil Service Association of Western Australia (1996) 76 WAIG 1673
Local Government, Racing and Cemeteries Employees Union (WA) v City of Kalamunda & Ors [2022] WAIRC 00219; (2022) 102 WAIG 340
Local Government, Racing and Cemeteries Union (WA) v Western Australian Municipal, Administrative, Clerical and Services Union & Ors [2024] WAIRC 00349; 104 WAIG 835
Re application by City of Gosnells [2021] FWCA 4895
Re application by The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers and The Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1999) 79 WAIG 2998
The Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union of Workers - Western Australian Branch [2000] WAIRC 00552; (2000) 80 WAIG 4615
The Merchant Service Guild of Australia, Western Australian Branch, Union of Workers [2001] WAIRC 02020; (2001) 81 WAIG 382
Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Armadale [2011] WAIRC 00230; 91 WAIG 21
Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Anor v City of Kalamunda & Ors [2024] WAIRC 01008; (2024) 104 WAIG 2551

Reasons for Decision

THE COMMISSION IN COURT SESSION:

Contents

Paragraph number
Legislative provisions
[14]
Constitutional coverage and eligibility
[20]
History of membership and award and agreement coverage
[24]
Employer preference
[55]
Employee preference
[58]
Discouragement of overlapping coverage
[77]
Interests of the employer
[87]
The interests of the employees
[88]
Interests of the TWUWA
[91]
Interests of the WASU and LGRCEU
[92]
Community of interest
[93]
The views of UnionsWA
[105]
Industrial behaviour of the organisations concerned and the employer
[106]
Ability to service membership
[112]
The effect of the orders sought
[135]
The interests of the community
[146]
The advancement of the objects of the Act
[147]
Conclusion and disposition
[151]

1 The City of Gosnells employs around 22 waste collection operators. In 2018, a small group of the waste collection operators (TWU group) signed up as members of the Transport Workers’ Union (TWU) In these reasons, TWU is used to refer to either or both of the federally registered Transport Workers’ Union of Australia and/or the Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch, where it is unnecessary to distinguish between them.

.
2 Until that time, the TWU had historically had no presence at the City of Gosnells.
3 Indeed, since the start of the Second Elizabethan era, the State registered organisation, the Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (TWUWA) had no presence in local government in Western Australia. This was because, since 1952, its rules have expressly excluded local government employees from eligibility for membership.
4 Rule 3(f) of the TWUWA’s Rules says:
Except as hereinafter contained, this Branch shall not enrol any person as a member who is employed:
…
(f) By any City Council, Municipal Council, Health Board, Shire Council, or by any body or person acting for, under or on behalf of any of the abovementioned local governing bodies or authorities.
5 At the time the TWU group joined the TWU, the City of Gosnells operated in the federal industrial relations system under the Fair Work Act 2009 (Cth). The Transport Workers’ Union of Australia’s (TWUA) organisers were involved in bargaining for three enterprise agreements made under the FW Act with the City of Gosnells covering the waste collection operators in 2019, 2021 and 2022.
6 On 1 January 2023, the City of Gosnells transitioned to the State industrial relations system as a result of the combined effect of:
(a) the Industrial Relations Legislation Amendment Act 2021 (WA);
(b) the Fair Work Amendment (Transitional Arrangements – Western Australian Local Government Employers and Employees) Regulations 2022 (Cth);
(c) the Fair Work (State Declarations – Employers not to be national system employers) Endorsement 2022 (No 1) (Cth); and
(d) the Industrial Relations Regulations (Consequential Amendments) Regulations 2022 (WA) amending the Industrial Relations (General) Regulations 1997 (WA).
7 The City of Gosnells was one of 139 Western Australian local governments that were declared not to be national system employers.
8 Accordingly, from 1 January 2023, neither the TWUA nor the TWUWA has had any ability to enrol the City of Gosnells employees as members, bargain for industrial agreements or exercise rights of entry at the City of Gosnells under the Industrial Relations Act 1979 (WA).
9 Some two years after the transition to the State industrial relations system, the TWUWA made this application under s 72A(2)(b) of the Act requesting orders that it have the right to represent the interests of employees engaged as waste collection operators at the City of Gosnells.
10 The TWUWA is an organisation as defined in s 72A(1). The City of Gosnells is an enterprise for the purpose of that section.
11 The TWUWA’s application was published in accordance with s 72A(3) and the application was listed for hearing before the Commission in Court Session after the period specified in s 72A(3) had expired.
12 There are two registered organisations which have constitutional coverage of waste collection operators at the City of Gosnells: the Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU) and the Local Government, Racing and Cemeteries Employees Union (WA) (LGRCEU). Both of those organisations intervened in these proceedings, as did the City of Gosnells as the relevant employer.
13 In its application, the TWUWA says that its grounds for seeking orders under s 72A are:
(a) because it has members at the City of Gosnells;
(b) because it has been party to or bargained for recent collective agreements with the City of Gosnells covering those members; and
(c) because it represents waste collection operators in the private sector including those employees of private sector entities who contract waste collection services to local governments.
Legislative provisions
14 It is convenient to set out s 72A(1) and s 72A(2)(b):
(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 joint venture 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 Australian Medical Association (WA) Incorporated.
(2) An organisation, an employer or the Minister may apply to the Commission in Court Session for an order —
…
(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;
…
15 Section 72A(2) gives the Commission a wide discretion within the confines of the Act’s requirements to determine whether an organisation should have the right to represent the industrial interests of employees employed in an enterprise or workplace: Re applications by Hospital Salaried Officers Association of Western Australia and Civil Service Association of Western Australia (1996) 76 WAIG 1673 at 1686 (HSOA case).
16 The applicant, in this case the TWUWA, bears the onus of establishing the orders it seeks should be made: HSOA case.
17 The fact that an organisation’s eligibility rules do not give an organisation that right is not a barrier to the Commission making such orders, but it is an important factor, which should not be lightly brushed aside: Hospital Salaried Officers Association of Western Australia (1999) 79 WAIG 2998 at 3010.
18 The relevant factors which may require consideration in assessing whether orders ought to be made under s 72A were enumerated in The Automotive, Food, Metals, Engineering, Printing And Kindred Industries Union of Workers - Western Australian Branch [2000] WAIRC 00552; (2000) 80 WAIG 4615 at [281]. Not all of the listed factors will be relevant to all s 72A applications: The Merchant Service Guild of Australia, Western Australian Branch, Union of Workers [2001] WAIRC 02020; (2001) 81 WAIG 382 at [189].
19 In this case, the following factors are relevant:
(a) constitutional coverage and eligibility;
(b) the established pattern of membership and award and agreement coverage;
(c) the industrial behaviour of the organisations concerned;
(d) discouragement of overlapping coverage;
(e) the effect of the orders sought;
(f) employee preference;
(g) the interests of the employees;
(h) the interests of the TWUWA;
(i) the interests of the WASU and the LGRCEU;
(j) employer preference;
(k) the interests of the employer;
(l) the ability to service membership;
(m) the interests of the community; and
(n) the advancement of the objects of the Act.
Constitutional coverage and eligibility
20 The TWUWA properly concedes that it does not have coverage in relation to waste collection operators employed by the City of Gosnells. The TWU group of employees whom it has enrolled, are not eligible for membership. The TWUWA’s eligibility rule 3 is an occupational rule. It refers to:
drivers and/or loaders and/or operators and/or washers of all mechanically propelled or animal-drawn vehicles or implements or machines and their assistants, aeroplane cabin attendants, air hostesses, conductors, collectors of fares, stablemen and yardmen, employed in or in connection with the cartage, conveyance, movement or transportation of persons, goods, merchandise, wares, implements, machines, vehicles, livestock, material or matter of any kind.
21 As mentioned above, rule 3(f) expressly prohibits the enrolment of persons employed by a City Council, Municipal Council or Shire Council, amongst other express exclusions.
22 The exclusion has been in place since 15 August 1952 when the then President of the Court of Arbitration of Western Australia made an order, on the union’s application, amending the Rules of the Amalgamated Road Transport Union of Workers, Perth by deleting the existing rule 3 and inserting the current rule: Re Amalgamated Road Transport Union of Workers, Perth (1952) 32 WAIG 377; Amalgamated Road Transport Union of Workers, Perth v Australian Workers’ Union, Westralian Branch, Industrial Union of Workers (1952) 32 WAIG 375.
History of membership and award and agreement coverage
23 The TWU says that, prior to January 2023, it had an established pattern of representing the waste collection operators under its federal rules whilst the City of Gosnells operated under the FW Act. The evidence puts this history as commencing sometime after 2016, and most likely after 2018. It was ‘around’ 2016 when the first of the TWU group joined the TWU. That was Mr David Phillips. He resigned from the Australian Services Union (ASU) and joined the TWU after the City of Gosnells Operations Centre Employees Enterprise Agreement 2016 was made in June 2016, instigated by his dissatisfaction with the subsequent introduction of rostered days off. According to Mr Phillips, but only Mr Phillips, TWU organisers started visiting the City of Gosnells not long after he joined, or in 2017.
24 It is likely that any visits in 2016 or 2017 were informal and did not involve any official representations to the City of Gosnells. Mr Thomas Hastings is the City of Gosnells’ Manager of Organisation Performance and has been in that role since December 2015. His role incorporates human resources and industrial relations. His evidence was that he was first aware of the TWU’s presence at the City of Gosnells during bargaining for the 2019 enterprise agreement, as a TWU organiser was involved in the bargaining. He has checked the City’s records to see if there was any history of the TWU being present on site before 2019, but could not find anything.
25 In addition to Mr Phillips, four others of the TWU group, which currently totals six waste collection operators, gave evidence in the proceedings.
26 Mr Bradley Marshall is currently a member of both the TWU and the WASU. He did not specify in his evidence when he joined the TWU, nor what exposure he had to the TWU at the City of Gosnells, other than in bargaining from 2019 onwards.
27 Mr Jason Cogswell joined the TWU in 2018 or 2019. By 2018, he was aware of the TWU representing others at the City of Gosnells. He was aware that the TWU organisers Glenn Barron and his replacement Tom Brennan, would visit the site every three or four months, and they would be involved in disciplinary matters, bargaining for enterprise agreements and a dispute concerning the RDOs, but this awareness was based on what he had been told by others. Mr Cogswell did not have direct interactions with the TWU organisers.
28 Mr Steven Uren joined the TWU on an unspecified date when he was the subject of disciplinary proceedings commenced against him by the City of Gosnells. At the time, Glenn Barron was the TWU organiser. While Mr Uren did not say on what date he joined the TWU, he remained an ASU member until July 2018: exhibit WASU-4. He did not refer to the TWU’s representation of waste collection operators or its presence at the City of Gosnells prior to his own issue arising in about July 2018.
29 Mr Gary Barrett did not specify when he joined the TWU, but he remained a member of the ASU until December 2018. He joined the TWU after being encouraged to do so by Mr Phillips. In cross-examination he accepted that he would not have left the ASU except for Mr Phillips’ encouragement. He did not describe the TWU having a presence at the City of Gosnells prior to the 2019 enterprise agreement bargaining.
30 There is no dispute that the TWU’s organiser, Mr Glenn Barron, was involved in bargaining for the 2019, 2020 and 2021 enterprise agreements. Aside from the wage increases provided for in each of these agreements, they were substantially ‘roll-over’ agreements. The TWU did not point to any particular claims which it made or strategies it employed during bargaining which resulted in any substantive changes to or improvements in the terms and conditions of employment of the waste collection operators.
31 Mr Brennan has been in the role of TWU organiser since November 2023. His evidence was that since that time, he has interacted with the City of Gosnells’ management seven to ten times in total, including by telephone and email, with most of the contact being with Mr Uren.
32 Other evidence about the TWU’s presence at the City of Gosnells included:
(a) The TWU objected to the registration of the City of Gosnells Waste Collection Enterprise Agreement 2021;
(b) In July 2022, the TWU made an application to the Fair Work Commission to deal with a dispute about whether waste collection operators who work on their RDO are entitled to be paid at the overtime rate of pay for the hours worked on that day: exhibit TWU-1;
(c) Mr Tom Brennan acted as a support person to Mr Uren in a mediation;
(d) Mr Brennan visited the City of Gosnells ‘one or two’ times to deal with members’ disciplinary matters;
(e) Mr Brennan had dealings with the City of Gosnells about a long service leave issue raised by Mr Uren; and
(f) Mr Brennan and Mr Dawson met with the TWU group from outside the fence of the depot in March 2025.
33 It is worth elaborating on the TWU’s involvement in the objection to registration of the 2021 agreement, and the 2022 dispute about the RDO arrangement.
34 From the Fair Work Commission’s decision dismissing the TWU’s objection to the registration of the 2021 agreement (Re Application by City of Gosnells [2021] FWCA 4895), it is apparent that:
(i) The TWU was a bargaining representative for the agreement; and
(ii) The TWU had reached an in-principle agreement with the City of Gosnells. There was no evidence that it had advanced claims in the bargaining which were not resolved by agreement;
(iii) After the in-principle agreement was reached, Mr Hastings wrote to the TWU’s Glenn Barron advising that he planned to proceed to put the agreement to a ballot of employees, and asked Mr Barron if he consented to this. This was in the context of a Stay at Home Order having been issued by the State Government during the pandemic, although the waste collection operators continued to work normally as essential workers;
(iv) Mr Barron responded to Mr Hastings’ email “Not a problem at all Tom.”;
(v) The vote went ahead on 30 June 2021 and the agreement was approved by a majority of employees who voted, with a margin of two votes;
(vi) Two employees were on annual leave on the day of the vote. One attempted to vote after the ballot had closed;
(viii) The TWU opposed registration on the ground that the agreement had not been genuinely agreed;
(ix) Commissioner Wilson found that both employees had a reasonable opportunity to attend and vote, but for reasons of their own, did not do so; and
(x) At [38] of the reasons, Commissioner Wilson was critical of Mr Barron, saying that he had to be held accountable to some degree for the situation which had developed, for having said to the employer that he saw no problem with the ballot proceeding, notwithstanding the State Government Stay at Home Orders. Patently he only saw a problem when his members complained within minutes of the vote having been declared. He should have thought more carefully about the situation and the implications for his members, before responding to Mr Hastings that the ballot could proceed.
35 As for the TWU’s application to the Fair Work Commission concerning the RDO dispute, the RDO or 9-day fortnight arrangement was approved by a majority of employees in 2016, and involved working in excess of 76 hours a fortnight in order to accrue an RDO. However, this informal agreement was not reflected in the collective agreements subsequently made in 2019 and 2021.
36 The City opposed the TWU’s application to the Fair Work Commission on the ground that the TWU had failed to comply with the dispute resolution procedure contained in the 2021 Agreement: exhibit TWU-2. The TWU therefore discontinued the Fair Work Commission application and Mr Barron met with the City of Gosnells on 4 August 2022. At this meeting the City agreed that hours worked by waste collection operators over 76 hours in a fortnight should be paid as overtime, and it made back payments accordingly.
37 While at least some of the waste collection operators received a back-payment of overtime following the 4 August 2022 meeting, the RDO arrangement is now a contentious issue with no entitlement for employees to work a 9-day fortnight, or preserve a substitute day if the RDO is worked. The majority of waste collection operators want the RDO arrangement. The WASU’s Senior Organiser, Paul Cecchini, described the TWU’s strategy as short-sighted and resulting in a ‘one-off sugar hit’ at the expense of enshrining RDO entitlements in a collective agreement.
38 The evidence overall of the TWU’s representation of waste collection operators at the City of Gosnells is confined to a period of about seven years. The evidence does not demonstrate any significant benefits the TWU has achieved for waste collection operators collectively.
39 As against the TWU’s history of representation at the City of Gosnells, the WASU/ASU’s presence at the City of Gosnells well and truly predates the TWU’s presence. The TWU group were all members of the ASU for many years prior to joining the TWU. In Mr Barrett’s case, for example, he joined the ASU soon after he started working at the City of Gosnells some 30 years ago.
40 The ASU was covered by the City of Gosnells Waste Collection Enterprise Agreement 2014, and each and every agreement which superseded it.
41 The award history relevant to the City of Gosnells is as follows:
(a) The Municipal and Road Board Employees (Perth City Council and Other Local Governing Bodies) No.1 of 1948 Award covered ‘Sanitary Service Workers’, ‘Rubbish and dust carters (horse-drawn vehicles) who actually handle rubbish’, ‘Motor Truck drivers on sanitary work’ and ‘Horse drivers on sanitary work.’ The Gosnells Road Board, the predecessor of the City of Gosnells, was a respondent to this award. The LGRCEU, which was then known as the Western Australian Municipal, Road Boards, Parks and Racecourse Employees’ Union of Workers, Perth, was the union applicant for the award. The award was made by the Court of Arbitration of Western Australia on 16 July 1948. The TWU (then the Amalgamated Road Transport Union of Workers, Perth) was not a party;
(b) The Municipal Employees (Western Australia) Award 1982 was made by the Australian Conciliation and Arbitration Commission on the application of the LGRCEU’s then federal counterpart, the Federated Municipal and Shire Councils Employees Union of Australia: exhibit WASU-5. It covered ‘Sanitary Service Employees’ including ‘Motor-truck drivers on sanitary work’ and named the City of Gosnells as a respondent. The TWU initially objected to the creation of this award but withdrew its objection;
(c) The Federated Municipal and Shire Council Employees Union of Australia amalgamated with the Federated Clerks Union and other unions in 1993, to become the ASU;
(d) The 1982 Award was renamed in 1999 to the Municipal Employees (Western Australia) Award 1999;
(e) In 2010, the LGRCEU and the WASU successfully applied for an interim award to be made in this Commission, mirroring the terms of the Municipal Employees (Western Australia) Award 1999: Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Armadale [2011] WAIRC 00230; 91 WAIG 21. The resulting Municipal Employees (Western Australia) Award 2011 covered waste collection operators. The TWU was not involved in the application and was not a party to the 2011 interim award;
(f) In 2021 the LGRCEU and the WASU successfully applied for the 2011 interim award to be made as a final award, the Municipal Employees (Western Australia) Award 2021: Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Kalamunda & Ors [2021] WAIRC 00116; 101 WAIG 375. The TWU was not involved in the proceedings and is not a party to the Award; and
(g) The LGRCEU and the WASU have since applied for, or been parties to, applications concerning variations to the Municipal Employees (Western Australia) Award 2021 to keep it up to date and relevant: Appl 80/2023 Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Anor v City of Kalamunda & Ors [2024] WAIRC 01008; (2024) 104 WAIG 2551; Appl 6/2024 Local Government, Racing and Cemeteries Union (WA) v Western Australian Municipal, Administrative, Clerical and Services Union & Ors [2024] WAIRC 00349; 104 WAIG 835; Appl 27/2023 Commission’s Own Motion [2023] WAIRC 00925; (2023) 103 WAIG 1952; Appl 12/2022 Local Government, Racing and Cemeteries Employees Union (WA) v City of Kalamunda & Ors [2022] WAIRC 00219; (2022) 102 WAIG 340. The TWU has not been involved in any of these proceedings.
42 Outside of the City of Gosnells, in the local government industry more generally, the TWUA has had a longstanding presence and pattern of coverage of employees of private sector entities engaged in waste collection, including those who contract to local governments. Examples include Cleanaway, Veolia and JJ Richards & Sons.
43 The TWUWA’s Secretary Mr Tim Dawson gave evidence that the TWU had been in local government waste services ‘for a number of years’ although he had not himself organised in the waste services industry. His evidence was that the TWU had agreements with different local government employers over the years, but he did not specify which agreements, or which years, referring only to the Cities of Melville, Stirling and Gosnells. He later accepted in cross-examination that he could be wrong about the TWU ever being party to agreements in Melville and Stirling. No such agreements were put before the Commission. Mr Dawson confirmed that the TWU had not ‘gone out and campaigned to recruit or organise specifically in local government.’
44 Mr Dawson noted that the TWU has had organisers who were responsible for the waste services industry going back to ‘about 2012’, but it was unclear to what extent those organisers had been representing local government employees, as opposed to employees in the private sector waste services industry as it related to local government.
45 Mr Dawson was asked about his knowledge of the TWU’s involvement in local government outside Western Australia. He referred to the TWU being party to one local government agreement in NSW and two agreements in Queensland, but he was not aware of any other agreements to which the TWUA or its State counterparts were party.
46 Mr Dawson also accepted in cross-examination, that there has been a very long-standing demarcation line in Western Australia, of direct hire employees in local government being members of the ASU/WASU or the LGRCEU and employees of contractors to local government being members of the TWU.
47 This unwritten demarcation line was apparently in operation when Mr Phillips first commenced employment at the City of Gosnells in 2010. His evidence was that he was a member of the TWU at the time he commenced employment with the City. He contacted the TWU to find out whether, as a TWU member, he could support the ASU’s campaigns at the City of Gosnells, as the ASU was involved in bargaining at the City and some of his co-workers were ASU members. The TWU advised him to leave the TWU and to join the ASU, which he did.
48 Mr Dawson said that while the TWU has not run a ‘major campaign’ to sign up waste workers in local government, it will not now turn people away if they want to join. It is unclear when the TWU changed its approach, but Mr Phillips’ discussion with the TWU about his membership occurred before Mr Dawson became the TWUWA Secretary.
49 Aside from the TWU group at the City of Gosnells comprising six employees, the TWU did not lead evidence of having any other waste collection operators as members who are directly employed by local government, either historically or currently. This is, of course, consistent with the fact that such employees are not eligible to join the TWUWA.
50 The WASU, on the other hand, has around 2,300 members employed directly by local governments. Local government employees represent around 40% of its total membership. It is involved in making between 35 and 57 industrial agreements with local governments in Western Australia each year and employs nine organisers and other officials servicing its local government employee members (see transcript p 259 and p 266).
51 The LGRCEU also has an undisputed lengthy history of representing waste collection operators directly employed by local governments in Western Australia. Its current Secretary, Andrew Johnson, had himself worked in various local governments, as a gardener, tree pruner and rubbish collector, before becoming an Organiser and Industrial Officer for the LGRCEU. The LGRCEU has only one member at the City of Gosnells involved in waste collection services. It was not involved in bargaining for waste collection agreements at the City of Gosnells between 2016 and 2022; but it is a party to the current agreement; has been involved in agreements for the rest of the outside workforce at the City of Gosnells; and has a distant history of representing waste collection operators at the City of Gosnells in 1993, as a party to a Classification Structure Agreement: exhibit LGRCEU-6.
52 In the scheme of things, it cannot be said that the TWU has a history of City of Gosnells membership of any significance at any time prior to January 2023, when it could only legitimately enrol employees employed in local government as members under its federal rules. It has no history of award coverage; it’s involvement in agreements is limited to three agreements in the period 2019 to 2022; and its representation of members is both small in number and short in time.
53 Importantly, the recent incidence of TWU membership appears to have broken what had been a longstanding pattern of the TWU staying out of local government. In The Merchant Service Guild of Australia, Western Australian Branch, Union of Workers at [205], the Full Bench described a union’s established and exclusive industrial coverage of Fisheries Officers as being ‘interrupted by an unauthorised coverage’ of less than two years by the rival union, a fact which the Commission said, ‘plainly militates against the applicant in this case.’ Similarly in this case, the TWU’s recent purported membership coverage is unauthorised, and is an interruption to a pattern. It is not itself a pattern. This factor weighs against the TWUWA’s application.
Employer preference
54 The City of Gosnells advised the Commission that it did not have any preference as to which organisations have the right to represent the industrial interests of the employees, but that it does have a preference for fewer rather than more unions.
55 Mr Hastings gave evidence to the effect that until these proceedings were commenced, he considered he had a civil relationship with the TWU’s organisers and officials. However, since these proceedings were commenced, his respect for the TWU has diminished. He was not asked why that was the case. However, in the course of these proceedings, the TWU filed outlines of witness evidence which made allegations to the effect that Mr Hastings disliked the TWU, that he had discriminated against employees who were TWU members, and that Mr Hastings had refused to allow the TWU on site. The TWU made no attempt to substantiate any of these allegations in its evidence. The evidence painted quite a different picture.
56 The way the TWUWA has conducted this case could reasonably have caused damage to its relationship with the City of Gosnells and its standing with Mr Hastings.
Employee preference
57 Of the 22 waste collection operators, five gave evidence to the effect that they wanted, or preferred, to be members of the TWU. A common theme of these witnesses’ evidence as to why they preferred the TWU was because they saw themselves as part of the transport industry because driving trucks is a major part of what they do on a daily basis.
58 We discuss the evidence and competing contentions about whether the waste collection operators are properly regarded as being part of the transport industry or the local government industry under the heading “Community of Interest” below. For present purposes, it is sufficient to acknowledge that the witnesses’ evidence about their preference for TWU membership stems from a sense that they identify as transport workers. That much can be accepted, without having to find that they work in the transport industry.
59 The TWUWA also faintly alluded to the employees’ preference as stemming from dissatisfaction with the ASU’s representation at the City of Gosnells. However, the evidence did not establish there was an objectively reasonable basis for anyone to have left the ASU because of poor membership servicing.
60 Mr Phillips was the first to leave the ASU and join the TWU. His dissatisfaction was because ‘RDOs were brought in and there were no negotiations with the unions.’ The RDOs started after a vote of the waste collection operators, a majority of whom voted in favour of the roster system the City had proposed. There was no evidence that the ASU was aware of the introduction of the roster system, or was in any way involved in its introduction. Mr Phillips accepted in cross-examination that he did not know whether the ASU knew about the RDO issue, and he did not make contact with the ASU about it.
61 Mr Uren suggested that he left the ASU because he was disappointed with the lack of support he was given when he made a complaint about his supervisor’s behaviour towards him, about 14 months after he commenced working at the City of Gosnells. This would have been in around December 2015. He complained about his supervisor’s behaviour to his coordinator, who organised an informal meeting between Mr Uren and the supervisor to attempt to resolve the issue. Mr Uren expected the ASU to send an organiser to support him during the meeting, but the organiser was busy on the day, and suggested that the ASU’s site delegate, Mr Stanley, attend the meeting with Mr Uren instead. Mr Stanley did so. The meeting occurred and the matter was resolved by the supervisor agreeing to certain steps being taken in future, without admitting that he had misconducted himself.
62 Mr Uren said that he was disappointed with this representation because Mr Stanley was ‘just a greenhorn,’ said very little in the meeting, and the meeting was ‘very short and sweet’ (see transcript p 177 and p 184). Mr Uren’s evidence was that he remained unaffiliated with any union until sometime in 2018, when he joined the TWU because he was facing disciplinary action.
63 Mr Uren’s account was contradicted by the ASU’s records, which showed that he did not resign his ASU membership until July 2018, at least two and a half years after the meeting that Mr Stanley attended. We also note that according to the ASU’s records, Mr Uren joined the ASU in September 2015, shortly before the meeting involving Mr Stanley occurred.
64 Mr Wayne Wood is the WASU Secretary. His evidence was that the ASU’s records show that Mr Uren availed himself of the ASU’s referral service for legal advice after December 2015 as well.
65 We therefore give little credence to Mr Uren’s evidence. Not only is his account of resigning from the ASU unreliable, but his reasons for his dissatisfaction with the ASU are unfounded. Despite being a member for only around three months, and despite the fact that the meeting he attended was an informal meeting to deal with his grievance, the ASU’s delegate attended, supported him and the outcome of the meeting was favourable to him.
66 Mr Barrett’s gripe with the ASU was that in November 2014 when he was involved in disciplinary action, he asked the ASU for assistance and the organiser at the time told him he was too busy, and could not help him. Again, the site delegate, Mr Stanley, attended the disciplinary meeting with him. He said he felt let down by the ASU because he thought Mr Stanley was ‘very green.’
67 However, like Mr Uren, Mr Barrett’s explanation for his disaffection with the ASU was not plausible either, because the outcome of the disciplinary meeting in November 2014 was that no written warning or disciplinary action was taken against him. The outcome was favourable to him and there was no reason for him to feel ‘let down.’
68 Further, like Mr Uren, Mr Barrett did not resign from the ASU until several years later, in 2018 and accessed the ASU’s services and support in the meantime. Mr Barrett fairly conceded in cross-examination that the trigger for him leaving the ASU and joining the TWU was that Mr Phillips advised him to the effect that the TWU was better for him because he drives trucks, and that’s what the TWU is about, and Mr Barrett believed Mr Phillips.
69 Finally, we note that several of the TWU group expressed satisfaction with what the WASU and the LGRCEU had achieved in the most recent bargaining with the City of Gosnells, expressed support for the WASU delegate Mr Stanley and support for the WASU Senior Organiser Mr Cecchini.
70 Accordingly, we find that even if some or all of the TWU group felt disaffection for the WASU, such disaffection was not founded in any shortcoming in the WASU’s capacity, conduct or representation of the employees. The chronology and evidence overall reveal that, aside from Mr Phillips, the TWU group would not have left the ASU and joined the TWU except for Mr Phillips’ active recruitment of them.
71 The TWU acknowledged in its written submissions at [56] that if there is no cogent or legitimate reason given for an expressed employee opinion or employee preference, no or little weight should be attached to it: HSOA case at 1690-1691; The Merchant Service Guild of Australia, Western Australian Branch, Union of Workers at [197]. As we find there is no justification for any ill will or criticism directed at the WASU, this factor does not greatly advance the TWUWA’s application.
Discouragement of overlapping coverage
72 One of the Act’s s 6 objects is:
(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
73 This factor self-evidently weighs against the application, particularly when considering a small cohort of around 22 people.
74 The TWU argued in written submissions that s 6(e) is not determinative. There is no prohibition against overlapping coverage and the word ‘discourage’ does not equate to ‘prevent’: Burswood Resort (Management) Ltd v Australian Liquor Hospitality & Miscellaneous Workers’ Union (Unreported, WASCA, Library No 90280C, 2 June 1994) (Burswood Resort).
75 In Burswood Resort, in the context of an application to alter a union’s rules, Anderson J (with whom Rowland J agreed) rejected the suggestion that the object in s 6(e) is to ‘be made sublime and be pursued to the exclusion of’ all other of the Act’s objects:
The proposition that the requirement to discourage overlapping so far as practicable must necessarily prevent the Commission from reaching the required state of satisfaction whenever there will be a substantial overlap of eligibility is open to the further objection that it elevates s6(e) beyond its true function. The subsection is plainly not intended to have the effect of a prohibition against a grant of dual coverage. The expression “…and to discourage, so far as practicable, overlapping…” in its very terms indicates that this particular object may yield to other legitimate objects from time to time and as occasion demands. The word “discourage” is not synonymous with “prevent” and the phrase “discourage, so far as practicable” allows us much room for evaluation and judgement. That the evaluation and judgement may even, in appropriate cases, properly lead to the grant of complete dual coverage is anyway shown by the terms of s55(5) itself. Reference to the provisions of the subsection make it clear that the Full Bench is entitled to be satisfied that there is “good reason” to allow a rule change even when it will enable the applicant to enrol all of the persons eligible to be enrolled in another registered organisation. The section plainly contemplates an exercise of jurisdiction to grant an application notwithstanding that to do so will bring about complete dual coverage.
76 The TWUWA argued that the presence of multiple unions has not hindered bargaining either at the City of Gosnells (when the TWUA was involved) or at other local governments, for example where the Electrical Trades Union or the CFMEU have been party to bargaining. It argued that organisations had cooperated well and will continue to do so.
77 We readily accept that there is a possibility of multiple organisations cooperating. However, even Mr Dawson told the Commission that when multiple unions are involved in bargaining ‘it’s not as easy, in some respects’ (see transcript p 26). His evidence, and the evidence of other union officials, was that the challenges with bargaining increase with the number of parties involved. Mr Dawson referred to bargaining being held up when numerous unions are involved and one or more feel they have to be the more aggressive.
78 In this case, past cooperation between the TWU and the ASU is not a good predictor of the future because the TWU’s recent conduct is antagonistic and incompatible with cooperation. These proceedings were commenced without prior notice to the WASU or the LGRCEU. They were commenced without any prior approach by the TWUWA to the WASU and the LGRCEU to alert those organisations as to any reasons why the TWU should represent employees at the City of Gosnells, by reference to those other organisations’ capacity or conduct or employee preference.
79 During the hearing, Mr Dawson told the Commission that whether or not this application is approved, the TWU will in any event seek to alter its rules and enrol waste collection operators across any and all local governments.
80 Conditions have changed. The environment is naturally now hostile. Permitting dual coverage will increase competition for members and obviously lead to a risk of further demarcation disputes. This factor weighs against the TWUWA’s application.
Interests of the employer
81 Granting the TWUWA’s application will cause some disadvantage or inconvenience to the City of Gosnells’ interests, because it will have to deal with more unions in relation to the same categories of employees. In Burswood Resort, Anderson J observed that this kind of inconvenience ‘needs no expatiation.’
The interests of the employees
82 The LGRCEU submitted that the interests of the employees are best served by representation by an organisation with a depth of experience within the local government industry. The TWUWA did not address or rely on this factor, beyond what has been discussed under the heading ‘Employee preference.’
83 The TWUWA did not demonstrate that it had any particular strategy to advance the interests of waste collection operators working for local government. Its absence from the history of award making and the maintenance of award conditions, is such that it has not made any meaningful contribution to bettering the terms and conditions of employment for local government employees.
Interests of the TWUWA
84 The TWUWA did not address or rely on this factor. It did not seek to advance any particular interest on its part which would be advantaged by the granting of the application or disadvantaged by disallowing it. It is difficult to identify any significant interest given:
(a) The small number of potential members involved; and
(b) The confessed intention to alter the TWUWA’s eligibility rule.
Interests of the WASU and the LGRCEU
85 As the LGRCEU pointed out in its written submission, the WASU and the LGRCEU, as organisations who have the existing right to represent waste collection operators, have an interest in preserving their coverage and minimising further duplicated coverage. As Mr Wood succinctly put it, the WASU’s membership density is not helped by competitive unionism.
Community of interest
86 In its submissions, the TWUWA argued that the issues waste collection operators face are in common with transport workers, and more aligned with the transport industry than the local government industry.
87 It should be pointed out that waste collection operators do not exclusively drive trucks nor exclusively transport waste. The evidence was that on any day, some waste collection operators perform residential bin runs, which involves driving a one-arm heavy-rigid vehicle to collect and transport waste. However, other waste collection operators are engaged in green waste verge collections, during which an employee may be engaged primarily to operate a loader. This is Mr Barrett’s main duty currently. Mr Uren’s main duties currently relate to waste management in the City’s parks and recreation areas.
88 Having said that, it is uncontentious that waste collection operators are often required to deal with issues like road safety, traffic, mechanical breakdown and fatigue. Many of these issues are common to other workers in the transport industry, to a greater or lesser extent depending on the nature of the particular work and who the employer is.
89 However, they are not issues that are unique to transport workers, nor do they lack commonality with other local government employees. Rangers and road and infrastructure maintenance employees likely also deal with road safety and traffic issues. Parks and gardens employees likely deal with plant and machinery maintenance and breakdown issues. Any employee who operates plant or equipment for the duration of a shift will face fatigue issues.
90 As Mr Cecchini confirmed during cross-examination, waste collection operators are not alone in being required to have a heavy-rigid vehicle licence. This is often a requirement of employees in parks and gardens and engineering departments of local government.
91 Local governments employ people of various occupations for a diverse range of roles, but that does not detract from the fact that those employees are engaged in the local government industry. The local government industry is a third tier of government. It is not private sector employment.
92 One of the most obvious factors pointing to a commonality of interest with local government and a lack of commonality with transport workers generally was the fact that local government employers and employees are in the State industrial relations system. Mr Brennan’s evidence as to his dealings with members in waste collection focused on private sector employers who operate in the federal industrial relations system under the FW Act. This is of some significance because arguably one of the most important functions of an employee organisation is its participation in the system for setting terms and conditions of employment and collective bargaining.
93 Relatedly, the awards underpinning the terms and conditions of employment of the waste collection operators at the City of Gosnells are local government industry instruments, not transport industry instruments. Currently, in the absence of an industrial agreement, the Municipal Employees (Western Australia) Award 2021 would apply to the waste collection operators. When the City of Gosnells operated under the FW Act, it was the Local Government Industry Award 2020.
94 Other aspects of the evidence which support the view that the relevant community of interest is local government, rather than the transport industry, emerged from Ms Ballantyne’s evidence. Ms Ballantyne is the LGRCEU’s Assistant Secretary. She spoke, for instance, about the impact of State Government policies or proposals for amalgamations of local governments, boundary changes, or changes to the Local Government Act 1995 (WA), and the industry-wide human resource management consequences of such policies and legislative interventions.
95 Similarly, Mr Wood gave the example of privatisation of local government and local government services as an issue with significant implications for all employees in local government, regardless of occupation.
96 The TWUWA placed some reliance on the fact that the waste collection operators had their own collective agreement, separate from the rest of the outside workforce at the City of Gosnells, as an indication of ‘uniqueness’ or a lack of a community of interest with the local government outside workforce. It pointed to the fact that stand alone waste collection agreements existed in a handful of other local governments too. However, this fact does not take matters any further because there was no reliable or uniform evidence as to why there is a standalone waste collection agreement. In any event, the occurrence of standalone agreements for waste collection is relatively uncommon across the 139 local government entities in Western Australia.
97 The local government community of interest is greater than any transport industry community of interest.
The views of UnionsWA
98 No one informed the Commission as to the views of UnionsWA in relation to coverage of the waste collection operators at the City of Gosnells, despite the fact that the TWUWA and the WASU are both affiliated with it (the LGRCEU is not). This factor does not have relevance to the determination of this matter.
Industrial behaviour of the organisations concerned and the employer
99 There is no suggestion that the City of Gosnells’ industrial behaviour is relevant to the determination of this matter. While some of the TWU group mentioned in their evidence historical cultural and bullying issues in the waste collection services, those issues are not current.
100 The TWUWA’s industrial behaviour is relevant and weighs heavily against it.
101 The TWUWA ought to have known, from at least 1 January 2023, that it was unable to enrol the waste collection drivers. The transition of local government to the State system of industrial relations on 1 January 2023 was effected by the Industrial Relations Legislation Amendment Act 2021 (WA), which was assented to on 22 December 2021.
102 Despite this, the TWUWA did not inform the TWU group of their ineligibility for membership until March 2025. Most concerningly, it did not tell the TWU group until after it had commenced these proceedings. The employee witnesses all confirmed that the first time the TWUWA explained its eligibility limitations to them was at a meeting that occurred at the City of Gosnells’ depot with Mr Brennan and Mr Dawson, in March 2025.
103 For nearly three years the TWUWA has accepted the TWU group’s membership dues, knowing that these individuals were ineligible for membership, and without having informed them of the fact.
104 In Re application by The Australian Workers’ Union, West Australian Branch, Industrial Union of Workers (1999) 79 WAIG 2998 (Re Application by the AWU), the Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australia (CMETSWU) purported to enrol members over whom it had no constitutional coverage. At 3010, the Full Bench said that the CMETSWU paid little or no regard to its constitutional coverage and acted contrary to s 61 of the Act and observed that such behaviour weighed heavily against the CMETSWU.
Ability to service membership
105 The TWUWA argued that it was better able to service the waste collection membership because, unlike the WASU and the LGRCEU, it would not enrol supervisors and managers as members and therefore, it would not be in a position of a conflict of interest in its representation of members.
106 The WASU officials who gave evidence to the Commission frankly admitted that there was potential for a conflict of interest to arise if called upon to represent members on both sides of a workplace dispute. However, Mr Wood described how this situation is carefully managed. He said that if a member who was a supervisor or manager was supported in their actions by the employer, the WASU would not represent them. In other cases, each member would be supported by separate organisers.
107 There was no evidence before the Commission that showed that the WASU had not satisfactorily managed such a situation, or that it was an impediment to the WASU’s ability to service membership.
108 It is also possible that the TWUWA could face the same kind of dilemma if it were called upon to support two members who are on both sides of a workplace dispute. Such potential conflicts of interest are not limited to situations arising between one individual and their supervisor or manager, even though it may be accepted that disputes in a supervisor/supervisee context might more commonly arise.
109 Aside from the fact that the WASU and the LGRCEU might represent supervisors or managers, there was no suggestion that their organisers and delegates have not adequately represented members at the City of Gosnells or that they did not have the capacity to continue to do so. We are satisfied that they do have that capacity. More than that, we are compelled to acknowledge that the likes of Mr Wood, Mr Johnson, Ms Ballantyne and Mr Cecchini have committed many years of passionate and dedicated service to the improvement of the working lives of local government employees.
110 The TWUWA also submitted that it is a ‘major’ industrial organisation, has substantial resources and is well placed to service the waste collection operators. It submitted that it has ‘an experienced industrial team’ and a good track record of providing services to waste collection operators. Mr Dawson’s evidence was that the TWU has a legal team, a clerical team, a communications team, eight organisers and a senior organiser.
111 Mr Brennan said that as an organiser, he was allocated a ‘patch’ which included the waste industry, the concrete industry and regional locations. He is responsible for organising about 1000 members.
112 The TWUWA referred to its Secretary’s membership of the Road Freight Logistics Council (RFLC) as an example of its resources, might and capacity. Mr Dawson described this as a body established by the State Government to advise it on ports, rail, road and air transport. The RFLC considers the impact of the logistics network on the State’s economy, particularly imports and exports.
113 When Mr Dawson was asked how the RFLC’s work related to local government, he all but admitted that the RFLC was not relevant to local government at all, because its focus was logistics in import and export activities. His response was:
Ah, well, I suppose, we talk about local roads…its really about how do we make the supply chain, import and export, more productive and safer (see transcript p 30)
114 The only potential relevance of the work of the RFLC to waste collection operators working in local government is indirect and incidental, in that local roads may be impacted by outcomes from the RFLC’s recommendations.
115 Mr Dawson described the TWU as ‘what I’d call a campaigning union.’ He explained this meant that the TWU’s focus was major change for the betterment of the whole industry. He contrasted this with a servicing union, which focuses on servicing individual members in individual workplace settings.
116 We note that none of the TWU group who gave evidence in this matter told the Commission that, as union members, they particularly valued national safety campaigns. Rather, the thrust of their evidence was that they wanted a union who was present in their workplace, for bargaining and for representation in individual matters.
117 Nevertheless, the TWUWA gave as an example of its superior ability to represent waste collection operators, Mr Dawson’s evidence about the TWU’s 20-year Transport Reform campaign, which resulted in amendments to the FW Act, implemented last year, establishing an Expert Panel for the road transport industry. We understand Mr Dawson to be referring to s 617(10B) of the FW Act. The Expert Panel’s functions are those set out in Chapter 3B, concerning Minimum Standards for Persons in a Road Transport Contractual Chain, as well as matters relating to modern awards that relate to the road transport industry.
118 Again, it is difficult to see how this is a matter which benefits, or has relevance, to waste collection operators employed by the City of Gosnells, who are neither part of a road transport contractual chain nor covered by a modern award, let alone a modern award that relates to the road transport industry.
119 Asked in evidence-in-chief how transport reform relates to local government, Mr Dawson’s answer was:
If councils decide that they want to put pressure on lowering wages of their contractors, that will also put pressure on lowering wages of waste workers that are employed in local council. So we see that that’s potentially where the pressure will come through and where transport reform works. Because we’re saying that no matter who you are in a supply chain, that there’s an opportunity. If there’s an opportunity for us to put an application into the panel to make sure supply chains are safe and sustainable and fairer, then that’s where we can put applications into the panel at the Fair Work Commission: (see transcript p 28).
120 He continued by explaining that where a council engages a private contractor to provide waste services, a supply chain is created with the council at the top of the supply chain, seeking the best value for money in a tender process, with the people at the bottom of the chain, the transport company, working at marginal rates and therefore dangerous rates.
121 We understand this explanation to be, in effect, that there is very little relevance to the City of Gosnells directly employed workforce.
122 Neither of the TWUWA’s officials attempted to demonstrate that they had knowledge of the federal or State awards that covered the City of Gosnells and the waste collection operators it employed, or the State system of industrial relations more generally. This is the exchange that occurred with Mr Brennan about the awards:
In relation to the previous industrial agreements that were registered in the Federal jurisdiction do you understand that those agreements when they were approved by the Commission were compared against the Local Government Industry Award? Did you know that?---No.
Did you know there was no comparison done with any transport awards, it was only a comparison done with the Local Government Industry Award?---Okay.
Did you know that?---No, that’s fine. Okay.
…
And you're aware that a new agreement was registered to cover the waste workers at the City of Gosnells this year in August?---Mm hmm.
And do you know which award underpins that agreement?---I thought it would be the Waste Management Award.
If I told you it was the Municipal Employees Award is that something that would be familiar to you or not?---No, I haven't – no.
Have you ever looked at the Municipal Employees Award?---I imagine I have at some point. Yes.
Do you know which Commission made the Municipal Employees Award?---No, I don't.
(see transcript p 93)
123 This was Mr Brennan’s evidence about his knowledge of the State industrial relations system under the Act:
You see from your evidence I drew the inference, and I put it to you, that all of the mentoring that you had was people who were operating in the Federal jurisdiction as opposed to the State. Do you agree with that?---Um, yes, that’s – yeah, that could be possible. Yeah.

So my next question is given you were allocated Local Government what training were you provided with in terms of the State jurisdiction?---Well, as I said, when I – when I got my right of entries, um, right of entry cards then it was, um, I – I don't know what time then it was after that that, um, I went and done – um, sorry, done, visited the City of Gosnells, um, with the members there. Um - - -

Perhaps if I could assist you by focusing the question a little more. Were you given specific training in the difference between the Fair Work Commission matters and the State Commission matters?---Not a huge amount from memory. No.

Well, what specifically were you – what training were you given?---Well, just the difference with the Federal alluded to, um, industrial matters and the State was any State matters and – and safety matters. That was my understanding of it.
Were you told, for example, that there were differences or were you trained to the effect that there were differences between what you could do with an enterprise agreement versus an industrial agreement?---No. There was only a small amount of information on that in the initial - - -
(see transcript p 97)
124 Finally, in relation to the exercise of rights of entry under the Act, the only time that Mr Brennan sought to officially exercise a right of entry at the City of Gosnells, on 28 May 2024, he did so by giving the City of Gosnells notice under the FW Act. He said that he did not know that he needed to exercise right of entry rights under the Act, until after he had mistakenly given notice under the FW Act, and then his knowledge was only because Mr Hastings informed him of the fact. This was almost a year and a half after the City of Gosnells had transitioned to the State industrial relations system.
125 We do not mean to be critical of Mr Brennan. The impression we gleaned from the evidence was that he was put in a difficult position because the TWUWA did not ensure that he was adequately trained to represent members employed by local governments, despite knowing that local government was to be part of his portfolio.
126 All of this reflects adversely on the TWUWA’s capacity to adequately service membership at the City of Gosnells.
The effect of the orders sought
127 At the commencement of the hearing of this application, the TWUWA’s representative advised the Commission that the order the TWUWA was seeking was limited to ‘employees covered by the City of Gosnells Waste Collection Enterprise Agreement 2022’ but then, immediately conceded:
However, we understand that there is a subsequent agreement. But we know little about this most recent agreement. We can only assume that the classifications remain. (see transcript p 17)
128 This exposes a significant crack the in TWUWA’s case. The orders the TWUWA seeks lack practical utility.
129 The fact that it is not party to the current industrial agreement, the City of Gosnells Waste Collection Industrial Agreement 2025, means that, by its own admission, it is unfamiliar with its terms and conditions, including its scope and classifications, although it could of course inform itself of these terms now that the industrial agreement is registered under s 41 of the Act and published on the Commission’s website.
130 Even if s 72A representation rights orders were made, the TWUWA is not party to the current industrial agreement that covers the waste collection operators. Because it is not a party, it has no standing to enforce the current industrial agreement. Nor can it be party to a variation of the industrial agreement, or an application under s 46 of the Act for an interpretation of it. The TWUWA cannot effect the termination of the industrial agreement by retiring from it.
131 Even if the representation orders the TWUWA seeks are made, the TWUWA will be significantly hindered in its ability to effectively represent employees. It is also conceptually and practically inappropriate to frame representation orders which will have future effect by reference to the scope of an industrial agreement that is cancelled pursuant to s 41(8), and therefore has no current application.
132 And, as alluded to earlier, Mr Dawson told the Commission that regardless of the outcome of this matter, the TWUWA is likely to seek to change its rules to cover local government:
Let’s be frank here. It may not matter what the end of this result is this week. We may do that anyway. (see transcript p 42)
133 Mr Dawson confirmed that the purpose of the foreshadowed rule change would be to enable enrolment of members for all local governments, not just the City of Gosnells. This too, undermines the utility of these proceedings.
134 Granting this application will, no doubt, risk industrial disharmony. Although the TWUWA downplayed this risk on the basis that the application does not seek to exclude any other unions from local government, the potential for disharmony was perceptible from the demeanour and words of the officials who gave evidence during the hearing of this matter.
135 This factor weighs against the TWUWA’s application.
The interests of the community
136 The TWUWA did not identify any community interest that would be served by granting its application. The disutility referred to above also means that there is a lack of community interest in granting the application.
The advancement of the objects of the Act
137 The TWUWA argued that allowing the application would advance the Act’s freedom of association objects. This submission was based on a misguided understanding of freedom of association, under the Act.
138 The Act’s object s 6(ab) is:
to promote the principles of freedom of association and the right to organise; and
139 This object is directed at the freedom of individual employees to choose whether or not they wish to join a union. It is not directed at allowing employees the freedom to choose which union to join, regardless of a union’s eligibility rules. In Re Application by the AWU at 3008, the Full Bench said:
It is trite to observe that all organisations are registered under the Act, and that all had eligibility rules which denote what employees and what industries they are able to represent (called Eligibility or Constitutional Coverage clauses).
This is, to some extent, a basis for awards coverage and the operation of s.37 of the Act. The importance of the eligibility rule is recognised by the fact that an eligibility rule cannot be altered except by authority of the Full Bench under s.62(2) of the Act. S.62(4) applies, with some modifications. The same considerations and requirements under the Act as apply to actually registering an organisation. That is an indication of the importance of eligibility rules and their inherent role in the registration of organisations.
S.6(e) of the Act also prescribes as an object the avoidance of overlapping coverage. That is also significant in the scheme of organisational coverage.
Freedom of association can only occur within the regime of registration of organisations as prescribed by the Act and is not a concept which permits unilateral or defacto organisation and/ or decisions as to coverage by members of an organisation.
The question in this matter is not one of freedom of association, but is one involving the consideration of a whole number of relevant factors. The legislation does not provide for freedom of association, removed from the eligibility rule of an organisation, as registered.
Conclusion and disposition
140 The TWUWA has not discharged the onus on it or satisfied us that the order it seeks ought to be made. The only factor in favour of the TWUWA’s application is that there are a small number of employees who have expressed a preference for membership of the TWU. This is neither a sole nor a major determining factor: Re Application by the AWU. It is not enough to warrant an order under s 72A(2)(b) of the Act.
141 Accordingly we dismiss the TWUWA’s application.