WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH CITATION : 2026 WAIRC 00127 CORAM : CHIEF COMMISSIONER S J KENNER COMMISSIONER T B WALKINGTON COMMISSIONER T KUCERA HEARD : WEDNESDAY, 4 MARCH 2026 DELIVERED : FRIDAY, 6 MARCH 2026 FILE NO. : FBA 11 OF 2025 BETWEEN : PAT THOMAS HOUSE INC. Appellant AND WESTERN AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION OF EMPLOYEES Respondent 386 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 106 W.A.I.G. Catchwords : Industrial Law (WA) – Appeal under s 49 Industrial Relations Act 1979 (WA) – Registration of industrial agreement – Employer a constitutional corporation – National System Employer – Refusal to register agreement – Intervention application under s 27(1)(k) – Whether there is a sufficient interest – Relevant principles applied – Nature of appeal to Full Bench – Application for leave to intervene dismissed Legislation : Industrial Relations Act 1979 (WA) s 27(1)(k), s 49, s 49(4)(a) Fair Work Act 2009 (Cth) s 14 Result : Application dismissed Representation: Proposed Intervenor : Mr S Bibby Appellant : Mr S Farrell as agent Respondent : Mr R Knox of counsel Case(s) referred to in reasons: City of Cockburn v The Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors [2023] WAIRC 00787; (2023) 103 WAIG 1723 Federated Clerks’ Union of Australia, Industrial Union of Workers, WA Branch v George Moss Limited. (1990) 70 WAIG 3040 Reasons for Decision THE FULL BENCH: The appeal 1 The substantive appeal in this matter is from a decision of the Commission at first instance, refusing the registration of an industrial agreement on the basis that the employer party to the agreement is a constitutional corporation and therefore, is a National System Employer for the purposes of s 14 of the Fair Work Act 2009 (Cth). Intervention application 2 An application has been made by Community Employers of WA, for leave to intervene in the proceedings under s 27(1)(k) of the Industrial Relations Act 1979 (WA). The grounds of the application for leave to intervene are set out as follows: The Community Employers of WA (CEWA) represents the interests of 168 employers in the social and community services. Since July 2025, it has received a grant from Lotterywest to provide an education program for the social and community services industry to in part provide a clear framework for smaller employers to understand which industrial jurisdiction they are covered by. The decision (2025 WAIRC 00859 Ovis Community Services Enterprise Agreement 2025 – Pat Thomas House Inc & Western Australian Municipal, Administrative, Clerical and Services Union of Employees) that is the subject of appeal FBA 11/2025 is seemingly inconsistent with other decisions of the WAIRC. This makes it difficult for Organisation's to determine whether they are covered by the jurisdiction of the WAIRC or not. CEWA is seeking leave to intervene in the proceedings to outline the sectors concerns to inform the Full Bench of some of the important issues for the social and community sector arising in this appeal. 3 The application was not opposed by either the appellant or the respondent. 4 The Full Bench listed the application for leave to intervene. The proposed intervenor outlined two areas about which CEWA wished to make submissions to the Full Bench. In brief, the first area is an education program being conducted by CEWA to assist employers in the social and community services industry sector in relation to their industrial relations obligations. This involves familiarisation with decisions of the Commission, to enable a preliminary view to be reached as to whether State or federal industrial coverage extends to them. 5 The second area is one described as relating to the public interest, that being the need for consistency in decisions of this Commission, as to whether an employer is in the State or federal jurisdiction. The overarching submission was that the decision at first instance, from which the present appeal has been brought, is inconsistent with earlier cases, leading to uncertainty in the industry sector. Consideration 6 The Commission’s approach to determining applications for leave to intervene under s 27(1)(k) of the Act is well settled. In City of Cockburn v The Western Australian Municipal, Administrative, Clerical and Services Union of Employees & Ors [2023] WAIRC 00787; (2023) 103 WAIG 1723, the Full Bench observed at [45]-[46] as follows: [45] The power to grant leave to intervene in a matter is set out in s 27(1)(k) of the Act, which is as follows: 27. Powers of Commission 106 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 387 (1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — … (k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter; … [46] The relevant principles as to intervention applications are well settled in this jurisdiction and are not in contest. The leading High Court authority is Re Ludeke. This and other cases, were discussed by the Full Bench in Re Australian Workers' Union. The Full Bench at [17] to [21] observed as follows: [17] The principles for the Commission to consider when determining whether to exercise its discretion to allow a person to intervene in proceedings pursuant to its power to do so under s 27(1)(k) of the IR Act, in particular the determination whether a person has, in the opinion of the Commission, a sufficient interest in a matter that that person should be heard, were considered by Sharkey P in Gairns v The Royal Australian Nursing Federation Industrial Union of Workers, Perth (1989) 69 WAIG 2343. In Gairns the substantive application was an application brought before the President's original jurisdiction under s 66 of the IR Act for an interpretation of union rules. The federal nursing union, the Australian Nursing Federation, sought intervention in the proceedings. So, too, did federal and state Academic Unions. President Sharkey found that the most helpful dissertation of principles relating to intervention was set out in Re Ludeke; Ex parte Customs Officers' Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513; (1985) 13 IR 86. [18] In Ludeke, the matter before the High Court was an application by the Customs Officers' Association of Australia, Fourth Division to make absolute an order nisi for a prerogative writ to quash an order made by Justice Ludeke that leave be granted to the Administrative and Clerical Officers' Association, Australian Government Employment (ACOA) to intervene in the matter subject to limitation on certain questions it raised in its submissions in a demarcation dispute between that union and the ACOA. Chief Justice Gibbs at (519) - (520), with whom Dawson J agreed, observed: The critical question is whether the prosecutor will be denied natural justice if it is allowed to intervene in ACOA's application only to the limited extent allowed by Ludeke J. It may be said immediately that it is clear that notwithstanding the wide discretion in matters of procedure given to the Commission by s. 40(1) of the Act, the Commission is bound to observe the rules of natural justice: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group ((1969) 122 C.L.R. 546, at p. 552); Reg. v. Moore; Ex parte Victoria ((1977) 140 C.L.R. 92, at pp. 101-102); Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) ((1978) 140 C.L.R. 615, at p. 620). That means that a person whose rights will be directly affected by an order made by the Commission must be given a full and fair opportunity to be heard before the order is made. That requirement will not necessarily be satisfied if the Commission relies only on the fact that the person concerned has been heard on the same question by the same member of the Commission on a previous occasion. In general, the rules of natural justice are not satisfied unless the opportunity to be heard is afforded in the proceeding in question, although the fact that there had been an earlier hearing would be relevant in determining what constituted a full opportunity to be heard. However, natural justice does not require that everyone who may suffer some detriment as an indirect result of an order of the Commission is entitled to be heard before the order is made. Orders made by the Commission may affect many members of the community who are not parties to the proceedings in question but that does not mean that any member of the community who will be indirectly affected by an order of the Commission has a right to be heard in those proceedings. It has been held that a person who is not a party to a dispute, but who may nevertheless be affected, indirectly and consequentially, by an order made in settlement of the dispute is not entitled to be heard before the matter is determined: Reg. v. Moore; Ex parte Victoria; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.). [19] From these observations of Gibbs CJ in Ludeke, the following principles emerge: (a) Every person whose rights will be directly affected by an order must be given a full and fair opportunity to be heard; and (b) The principles of natural justice do not require that everyone who may suffer a detriment as an indirect result of an order or who is indirectly affected is entitled to be heard before the order is made. [20] Justice Mason in Ludeke made similar observations. He observed that an interest which in its nature is inadequate to support intervention in legal proceedings in a court may be 388 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 106 W.A.I.G. sufficient to support intervention in a matter of industrial arbitration before the Commission (523). His Honour found that if an organisation has a substantial interest sufficient to sustain an application to the court for prohibition then, generally speaking, it is desirable that the Commission should recognise that interest, subject to discretionary considerations, as a basis for intervention (525). In making this observation, his Honour had regard to the decision in R v Holmes; Ex parte Public Service Association (NSW) [1977] HCA 70; (1977) 140 CLR 63 where it was found that where the prosecutor had relevant coverage under its eligibility rule there could be no doubt that it had a substantial interest sufficient to sustain its intervention and that a lack of coverage would result in the prosecutor's interest being much more tenuous (525). Justice Mason in Ludeke also said (527): Indeed, the principal object of intervention is to ensure that all interested parties will participate in a single resolution of a controversy instead of being relegated to a resolution of the controversy in several proceedings. It is the attainment of this object that justifies intrusion into the litigant's right or interest in pursuing his proceedings as he chooses to constitute them. [21] Justice Brennan said that he generally agreed with the judgment of the Chief Justice. His Honour then went on to add that in determining whether a repository of a statutory power is bound to hear a person who is not directly involved in proceedings regard must be had (528): to all the circumstances of the case, including the language of the statute, the nature of the power and of the body in which the power is reposed, the nature of the proceedings, the procedural rules that govern the proceedings (especially any provision for intervention by a person not directly involved in them), the interests which are likely to be affected, directly or indirectly, by the exercise of the power and the stage the proceedings have reached when the repository of the power learns of those interests. Generally speaking, a decision that will affect adversely a person's legal rights or his proprietary or financial interests or his reputation ought not to be taken without first giving him an opportunity to be heard provided such an opportunity can be reasonably given (F.A.I. Insurances Ltd. v. Winneke ((1982) 151 C.L.R. 342, at pp. 411-412)), even if that person is not directly involved in the proceedings which lead to the making of the decision: cf. Reg. v. Town and Country Planning Commissioner; Ex parte Scott ([1970] Tas. S.R. 154, at pp. 182-187; 24 L.G.R.A. 108, at pp. 137- 141). But that is not an absolute rule. 7 The proposed intervenor faces difficulties in establishing a sufficient interest in these proceedings, which to its credit, it acknowledged. As was discussed during the hearing, an appeal to the Full Bench under s 49 of the Act, is concerned with the identification and rectification of error in decisions of the Commission at first instance. Proceedings before the Full Bench are not at large. The necessary focus on the decision of the Commission at first instance is reflected in s 49(4)(a) of the Act, which is in the following terms: 49. Appeal from Commission’s decision … (4) An appeal under this section — (a) must be heard and determined on the evidence and matters raised in the proceedings before the Commission; and … … 8 That is, the Full Bench, when hearing and determining an appeal, is required to confine itself to the proceedings at first instance. There is a limited capacity for the Full Bench to entertain fresh evidence on an appeal, however, that is subject to strict limitations: Federated Clerks’ Union of Australia, Industrial Union of Workers, WA Branch v George Moss Limited. (1990) 70 WAIG 3040. 9 Given the above, neither of the issues canvassed in support of the application for leave to intervene, related to the proceedings at first instance, specifically, dealing with whether, on the facts and the law, the appellant was a constitutional corporation. Putting the matter another way, whilst the CEWA has a general interest, nothing raised in support of the application to intervene, could go to the issue of whether the Commission at first instance made an appealable error, warranting intervention by the Full Bench. That being so, we are not persuaded that the proposed intervenor had established a sufficient interest to grant the application for leave to intervene in the proceedings. Accordingly, we would dismiss the application. 106 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 389 2026 WAIRC 00128 APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NUMBER AG 25 OF 2025 GIVEN ON 15 OCTOBER 2025