CITY OF CANNING INDUSTRIAL AGREEMENT 2025 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2026 WAIRC 00005 CORAM :Commissioner T Kucera HEARD : 3 october 2025 DELIVERED : 7 january 2026 FILE NO. : AG 9 OF 2025 BETWEEN : City of Canning Applicant AND Western Australian Municipal, Clerical and Services Union (WASU), The Local Government Racing Cemetries Employees Union (LGRCEU) Respondents AND the construction, foresty, mining and energy union of workers (CFMEUW) Intervenor Catchwords : Industrial Law (WA) – Application to register the City of Canning Industrial Agreement 2025 – Application for union to be named as a party to the proposed agreement – Requirements under ss 41 and 41A(2) of the Industrial Relations Act 1979 (WA) Legislation : Fair Work Act 2009 (Cth) Industrial Relations Commission Regulations 2005 (WA) Interpretation Act 1984 (WA) Labour Relations Reform Act 2002 (WA) Industrial Relations Act 1979 (WA) Workplace Agreements Act 1993 (WA) Workplace Relations Act 1998 (Cth) Result : Agreement registered Representation: Applicant Mr C Beetham (of counsel) Respondents Mr C Fogliani (of counsel) on behalf of the Western Australian Municipal, Clerical and Services Union (WASU) Mr K Trainer on behalf of the Local Government Racing Cemetries Employees Union (LGRCEU) Intervenor Mr O Fagir (of counsel) on behalf of the Construction, Forestry, Mining and Energy Union of Workers (CFMEUW) Case(s) referred to in reasons: City of Cockburn v the Western Australian Municipal Administrative Clerical and Services Union of Employees [2023] WAIRC 00787; 103 WAIG 1723 Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208; (2021) 101 WAIG 1457 Project Blue Sky & Ors v Australian Broadcasting Authority [1998] 194 CLR 355 Contents Background to the registration application [7] Section 72A proceedings [15] Applications to the Commission on the representation issue [27] The registration application [36] Industrial agreements under Division 2B of the IR Act [39] Programming Orders [40] COC’s Submissions in support of the registration application [43] WASU’s Submissions in support of the registration application [54] LGRCEU’s Submissions in support of the registration application [66] CFMEUW’s Submissions in opposition to the registration application [71] Submission on s 41A(2) [73] Effect on multi-union agreements [83] CFMEUW’s misrepresentation allegations [93] Why the Commission should refuse to register the proposed agreement [102] Variation to include the CFMEUW as a party [107] Reasons the Commission should vary the proposed agreement [111] Reply Submissions [121] WASU Reply Submissions [133] Consideration – principles to be applied [142] First constructional choice [146] Second constructional choice [151] Interpretation Act [153] Legislative history of s 41A(2) [158] Abolition of individual workplace agreements [163] Previous s 41A [167] Single union agreements [170] Greenfields agreements [179] Extrinsic materials [185] Multi-union industrial agreements [192] A construction consistent with the objects of the IR Act [197] Relationship with other provisions in the IR Act [200] Relationship with s 42 of the IR Act [205] S 41A(2) is not the leading provision [210] Not an absurd construction [213] Conclusion on the construction of s 41A(2) [215] The CFMEUW’s submission on whether there is an agreement [218] Distinction between negotiating parties and the parties to an industrial agreement [222] Industrial agreement must be a registrable instrument [232] Parties to an industrial agreement must be agreed [241] Variation of the proposed agreement under s 41(3) [247] Requirements for the registration of the proposed agreement [255] CFMEUW’s application for an enterprise order [261] Conclusion [267] === REASONS FOR DECISION === ¶1 This matter relates to an application the City of Canning (COC) has made (registration application) to register the City of Canning Industrial Agreement 2025 (proposed agreement) under s 41 of the Industrial Relations Act 1979 (WA) (IR Act). ¶2 The registration application is supported by two unions, both of whom are named as parties to the proposed agreement: the Western Australian Municipal, Administrative, Clerical and Services Union (WASU) and the Local Government, Racing and Cemeteries Employees Union of Western Australia (LGRCEU). ¶3 After the registration application was filed, the Construction Mining and Energy Union of Workers (CFMEUW) made an application to intervene in the registration application (intervention application). ¶4 By its intervention application the CFMEUW sought the opportunity to make submissions on: i. whether the proposed agreement should be registered under s 41 of the IR Act; and ii. if the proposed agreement is to be registered, whether the Commission should make an order under s 41(3) of the IR Act to include the CFMEUW as a party to the agreement. ¶5 On 5 May 2025, I issued my Reasons for Decision [2025] WAIRC 00265 in the intervention application and permitted the CFMEUW to appear and make submissions as an intervenor (intervention decision). ¶6 In the reasons to follow, I will explain why, notwithstanding the submissions the CFMEUW has made in relation to the registration application, I have determined that it is appropriate to register the proposed agreement, without the CFMEUW being named as a party. Background to the registration application ¶7 As I noted in the intervention decision, the COC commenced negotiations for an industrial agreement to replace the City of Canning Enterprise Agreement 2021 (2021 Agreement) which was made under the provisions of the Fair Work Act 2009 (Cth) (FW Act) in or around April 2024. ¶8 As a result of legislative changes that came into force on 1 January 2023, the local government industry transitioned from the National industrial relations system to the State industrial relations system. A full description of these legislative changes was provided in City of Cockburn v the Western Australian Municipal Administrative Clerical and Services Union of Employees [2023] WAIRC 00787; 103 WAIG 1723 at [1]-[4] (City of Cockburn). ¶9 Under s 80BB of the IR Act, pre-existing industrial agreements made under the FW Act would continue to apply as new State instruments, until they are renewed or replaced. ¶10 The 2021 Agreement is cast in terms that are very similar to the provisions of the proposed agreement. It covers all the employees who are engaged in the classifications that are described in the 2021 Agreement as well as the WASU and the LGRCEU. ¶11 The classifications that appear in Appendices 1 and 1.1 of the proposed agreement include employees who work ‘inside’ for the COC in administrative roles and COC employees who work ‘outside’, performing duties that include maintenance, horticultural, waste disposal and minor construction work. ¶12 The participants in the negotiations for the proposed agreement included representatives from the COC, the WASU, the LGRCEU and the CFMEUW (negotiating parties). The COC also allowed the CFMEUW to hold meetings with some of the employees who will be covered by the proposed agreement, even though the CFMEUW is not a party to the 2021 Agreement. ¶13 During the negotiations, the CFMEUW raised the issue of whether it would be joined as a union party to the proposed agreement (representation issue). Although raised, it is reasonable to say this matter was not resolved between the negotiating parties. ¶14 Despite their disagreement over the representation issue, the negotiating parties reached agreement on all the other terms of the proposed agreement, including rates of pay, wage increases and classification structure. Section 72A proceedings ¶15 At the same time as negotiations for the proposed agreement were occurring, the WASU, LGRCEU and CFMEUW have been involved in proceedings before a Commission in Court Session (CICS) under s 72A of the IR Act (72A proceedings). ¶16 The 72A proceedings are comprised of three separate applications that were joined and heard together by the CICS. The first of these is CICS 5 of 2023 in which the WASU is seeking an order under s 72A(2)(a) of the IR Act, which confirms the WASU has the right, to the exclusion of the CFMEUW, to represent the industrial interests of the outside employees, who work at the City of Rockingham. ¶17 Alternatively, the WASU in CICS 5 of 2023 seeks an order under s 72A(2)(c) that the CFMEUW does not have the right under the IR Act to represent the industrial interests of the outside employees, who work at the City of Rockingham. ¶18 The second, CICS 8 of 2023 is a responsive application from the CFMEUW which seeks an order under s 72A(2)(b) of the IR Act, in the event the CICS makes or proposes to make a finding, the CFMEUW does not have the right to represent the industrial interests of the outside employees, who work at the City of Rockingham. ¶19 By its application in CICS 8 of 2023, the CFMEUW seeks an order that it has the right to represent the industrial interests of outside employees who work at the City of Rockingham, who are employed as carpenters, painters and plant operators. ¶20 The third application, CICS 9 of 2023 is an application by the WASU in which the relief sought in CICS 5 of 2023, is also being pursued in relation to a list of local councils that includes the COC. ¶21 The LGRCEU supported the WASU in CICS 5 and 9 of 2023. The LGRCEU opposed the CFMEUW in CICS 8 of 2023. ¶22 If the CFMEUW is not successful in the 72A proceedings, then it may lose its right to be a party to industrial agreements in the local government industry. ¶23 Noting the COC has an interest in the 72A proceedings, particularly as it is a party to CICS 9 of 2023, the COC has formed the view, that the outcome of the 72A proceedings has the potential to decide the issues of: whether any of its employees, who are bound by the proposed agreement are eligible to be members of the CFMEUW, thereby determining whether the CFMEUW has the right to become a party to the proposed agreement; or if the WASU and LGRCEU should have the exclusive rights to represent the industrial interests of the outside employees who work for the COC. ¶24 It is on this basis, the COC says, that it was not prepared to agree to the CFMEUW being a party to the proposed agreement, until after the 72A proceedings are determined. ¶25 For this reason, the COC throughout the negotiations for the proposed agreement, maintained that its position on the representation issue was dependent upon what happened in the 72A proceedings. ¶26 At the time of finalising these reasons, the hearing of the 72A proceedings was completed and the CICS had reserved its decision. Applications to the Commission on the representation issue ¶27 During bargaining for the proposed agreement, two applications in which the representation issue was raised, were made to the Commission, under s 44 of the IR Act. ¶28 The first of these, C 25 of 2024 was made by the CFMEUW on 3 July 2024, while the negotiating parties were still bargaining for the proposed agreement (first application). ¶29 At the conclusion of a conciliation conference that was held on Monday, 8 July 2024 in relation to the first application, Senior Commissioner Cosentino ordered: THAT the conference be adjourned to a date to be fixed to consider the matter of the named parties to the replacement agreement, no earlier than the time that agreement on the balance of the terms of the replacement agreement are reached or the s 72A proceedings are determined. ¶30 The Senior Commissioner also made the following recommendation (recommendation): THAT the parties continue to bargain with each other in good faith in relation to the terms and conditions of a replacement agreement, other than the question of who is to be named parties to such a replacement agreement. ¶31 Following the issuance of the recommendation, bargaining between the negotiating parties continued. On or around 19 December 2024, the negotiating parties reached agreement on the terms of a proposed agreement, save and except for an agreed position on the representation issue. ¶32 On 14 January 2025, the COC made an application to the Commission under s 44 of the IR Act: C 2 of 2025 (second application). The second application was also referred to Senior Commissioner Cosentino, who convened a conciliation conference that was held on 17 January 2025. ¶33 Each of the negotiating parties attended the conciliation conference. The representation issue was the only matter that was traversed during the conference. ¶34 In an email that was sent to the negotiating parties following the conciliation conference it was agreed the following would occur: The COC, WASU and LGRCEU would sign a copy of the proposed agreement as soon as reasonably practical; Once the proposed agreement was signed, the COC would prepare and lodge an application to the Commission to register the proposed agreement; The COC agreed that it would copy the CFMEUW into the application to register the proposed agreement to ensure the CFMEUW had notice of the fact the application for registration had been made; The CFMEUW agreed to make any application to intervene in the COC’s application to register the proposed agreement within 7 days of the application being lodged; and The first and second applications would be withdrawn. ¶35 Following the conciliation conference, the COC made the registration application. Having regard to the context in which the first and second applications were withdrawn, I reached the conclusion in the intervention decision, that the representation issue was not resolved between the negotiating parties in conciliation before the Senior Commissioner and was in effect, left for another day. The registration application ¶36 With the registration application, the COC, WASU and LGRCEU have applied to the Commission to register the proposed agreement as ‘industrial agreement’, that will: i. subject to a limited number of exceptions, bind all the employees, who work for the COC in the classifications that are described in Appendix 1 of the proposed agreement; and ii. name the WASU and the LGRCEU as parties to the proposed agreement with the COC. ¶37 In dealing with the registration application, the Commission must decide whether the proposed agreement, satisfies the relevant criteria for the making of an industrial agreement, including those set out under ss 41 and 41A of the IR Act. ¶38 To this end, a copy of the proposed agreement was provided to the Commission in accordance with regulation 55(1) of the Industrial Relations Commission Regulations 2005 (WA), together with a table that describes the changes the parties have made to the 2021 Agreement that are reflected in the terms of the proposed agreement. Industrial agreements under Division 2B of the IR Act ¶39 Sections 41 and 41A are contained in Division 2B of the IR Act, which I have extracted below: 41. Industrial agreements, making, registration and effect of (1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of any related disputes, disagreements, or questions may be made between an organization or association of employees and any employer or organization or association of employers. (1a) An agreement may apply to a single enterprise or more than a single enterprise. (1b) For the purposes of subsection (1a) an agreement applies to more than a single enterprise if it applies to – (a) more than one business, project or undertaking; or (b) the activities carried on by more than one public authority. (2) Subject to subsection (3) and sections 41A and 49N, where the parties to an agreement referred to in subsection (1) apply to the Commission for registration of the agreement as an industrial agreement the Commission must register the agreement as an industrial agreement. (3) Before registering an industrial agreement, the Commission may require the parties to effect such variation as the Commission considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties. (4) An industrial agreement extends to and binds – (a) all employees who are employed – (i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and (ii) by an employer who is – (I) a party to the industrial agreement; or (II) a member of an organisation of employers that is a party to the industrial agreement or that is a member of an association of employers that is a party to the industrial agreement; and (b) all employers referred to in paragraph (a)(ii), and no other employee or employer, and its scope must be expressly so limited in the industrial agreement. (5) An industrial agreement operates – (a) in the area specified in the agreement; and (b) for the term specified in the agreement. (6) Notwithstanding the expiry of the term of an industrial agreement, it continues in force in respect of all parties to the agreement, except those who retire from the agreement, until a new agreement or an award in substitution for the first-mentioned agreement has been made. … 41A Which industrial agreements must not be registered under s.41 (1) The Commission must not under section 41 register an agreement as an industrial agreement unless the agreement – (a) specifies a nominal expiry date that is no later than 3 years after the date on which the agreement will come into operation; and (b) includes any provision specified in relation to that agreement by an order referred to in section 42G; and (c) includes an estimate of the number of employees who will be bound by the agreement upon registration. (2) The Commission must not under section 41 register an agreement as an industrial agreement to which an organisation or association of employees is a party, unless the employees who will be bound by the agreement upon registration are members of, or eligible to be members of, that organisation or association. Programming Orders ¶40 After issuing the intervention decision, I listed the registration application for a conciliation conference that was held on Thursday, 12 July 2025. ¶41 At the conclusion of the conciliation conference, I issued programming orders to deal with the registration application as follows (programming orders): THAT the City, WASU and LGRCEU (parties) are to file any written submissions and materials in support of the application to register the City of Canning Industrial Agreement 2025 (application) by 3 July 2025; THAT the CFMEUW is to file any written submissions and materials in opposition to the application by 31 July 2025; THAT the parties file any submissions in reply by 7 August 2025; THAT the matter be listed for a 1-day hearing on a date to be fixed; THAT the parties and the CFMEUW have liberty to apply. ¶42 After the parties filed their submissions, the registration application was listed for a one day hearing that was held on Friday 3 October 2025 (registration hearing). COC’s Submissions in support of the registration application ¶43 In the City of Canning’s Submissions in Support of Registration (COC’s First Outline), the COC submitted the proposed agreement meets the requirements of s 41(1) of the IR Act which included that the proposed agreement was: ‘with respect to’ an industrial matter. made between the COC (an ‘employer’) and the WASU and LGRCEU (each of which is an ‘organisation or association of employees’ within the meaning of section 7 of the IR Act). ¶44 It was submitted that while subsection 41(1) refers to ‘an agreement … made between an organisation or association of employees’, it does not limit the number of organisations or associations that may be a party to an industrial agreement. ¶45 The COC submitted that s 41(1) is permissive, not preclusive. It was contented the provision confers a statutory permission to make agreements of a certain type; ‘with respect to any industrial matter’. ¶46 It was submitted s 41(1) does not require an industrial agreement to take any particular form and nor does it prohibit an employer from reaching the same agreement with different organisations and embodying those agreements in the one instrument. ¶47 The COC submitted the IR Act must be read together with the Interpretation Act 1984 (WA) (Interpretation Act). It was submitted that due to the operation of s 10 of the Interpretation Act, words expressed in the singular; ‘organisation or association of employees’ includes the plural; ‘organisations or associations of employees’. ¶48 In support of this submission, the COC provided examples of terms in the IR Act which support the language of ss 41 and 41A being construed in plural. One of the examples cited was s 42(1) of the IR Act, which provides that bargaining for an industrial agreement, may be initiated by an employer giving an ‘intended party’ a written notice that complies with, the requirement in s 42(3)(c) which describes who the ‘intended parties’ to an industrial agreement will be. ¶49 The COC also referred to s 42(6), which states: ‘where bargaining is initiated under subsection (1) with more than one intended party to the agreement, all the negotiating parties are to bargain together’. ¶50 The COC submitted that its construction of s 41(1) of the IR Act is consistent with the obligation on the Commission to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms. ¶51 It was submitted that construing s 41(1) to require an employer to strike multiple (identical) agreements with different organisations or associations of employees would, ‘in addition to running contrary to the text of the statute, be a triumph of form over substance’. ¶52 The COC submitted that its construction of s 41(1) of the IR Act is consistent with established practice as reflected in the industrial agreements that have been registered by the Commission. Referring to 57 industrial agreements, the Commission had registered since 1 January 2023, where a local government is the employer party, the COC noted that 21 of these were made with more than one organisation or association of employees. ¶53 The COC submitted the Commission must register the proposed agreement as an industrial agreement because: (a) the Commission has not identified any variations to the Agreement that it considers necessary or desirable for the purpose of giving clear expression to the true intention of the parties, and the parties have not suggested nor sought any; (b) the Agreement specifies a nominal expiry date of 30 June 2027 which is no later than 3 years after the date on which the Agreement will come into operation; (c) no application has been made under section 42G of the IR Act, so there are no provisions specified in an order made by the Commission under section 42G that need to be included in the Agreement; (d) the Agreement specifies that approximately 800 employees will be bound by the Agreement; (e) both the WASU and/or the LGRCEU are eligible to enrol as members the employees who will be bound by the Agreement. See COC’s First Outline paragraph 2.14. WASU’s Submissions in support of the registration application ¶54 In the WASU’s Outline of Submission (WASU’s First Outline) the WASU adopted the arguments the COC made regarding the construction of s 41(1) of the IR Act. The WASU said that it is of no significance s 41(1) refers to an ‘organisation or association of employees’ in the singular. ¶55 It was submitted the singular/plural rule in section 10 of the Interpretation Act is clearly intended to apply to s 41(1) and that this can be ascertained by reading subsections 41(1a) and (1b) of the Act – which confirm that multiple employers can be parties to an industrial agreement. ¶56 The WASU submitted the whole purpose of the proposed agreement, which can be discerned from its provisions, is setting the wages, salaries, allowances, hours of work, and other terms and conditions of employment of the COC’s employees. It was submitted that in this respect, the proposed agreement is ‘with respect to an industrial matter’. ¶57 Regarding the inclusion of the CFMEUW as a party to the proposed agreement, the WASU, referring to the decision of the Full Bench in City of Cockburn at [170], submitted the only type of variations the Commission can require the parties to make to an industrial agreement, before registering it under section 41(2) of the IR Act are those changes which meet the purpose in section 41(3). ¶58 It was submitted that in the present case, the difficulty with the CFMEUW’s request to vary the proposed agreement, is that it is not a type of variation falling within the scope of section 41(3). ¶59 The WASU acknowledged the parties to the proposed agreement were aware that the CFMEUW wanted to be party but made a conscious decision to make the proposed agreement without the CFMEUW. The WASU submitted it was the clear intention of the parties the CFMEUW would not be a party to the proposed agreement. ¶60 As such, it was contended the Commission has no power under section 41(3) of the IR Act to require the parties to vary the proposed agreement to include the CFMEUW as a party. ¶61 Regarding the requirements under s 41A(2) of the IR Act, the WASU submitted that on a plain reading of the section, it was arguable the Commission cannot register an agreement under s 41(1) if at least one of the union parties cannot cover all the employees, who will be bound by the terms of the proposed agreement. ¶62 After making this submission, the WASU noted there was no case law expressly dealing with the construction of s 41A(2) despite the age of the provision. However, the WASU submitted the resolution of the issue will be inconsequential for the WASU as its eligibility rules are broad enough to cover every directly hired local government employee: See WASU’s First Outline paragraphs 29-30. ¶63 It was submitted s 41A(2) would never prove to be an obstacle for the WASU when making industrial agreements for local government workers and the issue is more significant for the LGRCEU and the CFMEUW: See WASU’s First Outline paragraph 31. ¶64 The WASU submitted that if a literal interpretation of s 41A(2) is adopted, the effect would likely be that: (a) The LGRCEU could never be a party to a ‘combined industrial agreement’ – even if the WASU was involved. The LGRCEU could only be a party to outside industrial agreements that do not include staff officers or clerical workers. (b) The CFMEUW could never be a party to a ‘combined industrial agreement’ or an outside industrial agreement that applies to outside workers. It could only ever be a party to an industrial agreement in local government that was confined to carpenters, engine drivers, and potentially painters. It was submitted that it is unlikely such an agreement would ever exist in the local government industry: See WASU’s First Outline paragraph 34. ¶65 The WASU submitted that if the Commission is satisfied the proposed agreement meets the requirements of ss 41(1), 41(2), 41(3), 41A, 49N, 49Y, and 48A of the IR Act, then it must register the proposed agreement. LGRCEU’s Submissions in support of the registration application ¶66 The LGRCEU broadly agreed with the submissions the WASU and the COC made in support of the registration application. The LGRCEU submitted the process to register an industrial agreement is driven by those who are named as the parties. ¶67 As I understood the LGRCEU’s submissions, it falls to the parties named in an industrial agreement to determine the matters upon which they have agreed, that are to be reflected in an industrial agreement, which in the present case, relates to the terms and conditions that will apply to the COC’s workforce and the organisations that will be parties to the proposed agreement. ¶68 It was submitted the COC had reached the view, that an industrial agreement with the LGRCEU and the WASU resolved its dispute with those parties. The LGRCEU also submitted an agreement on the parties to be included in an industrial agreement is an industrial matter. ¶69 The LGRCEU contended that it was open to the parties who are named as being a party to the proposed agreement, to make an industrial agreement with the COC for those classifications within their constitutional coverage, even though other organisations who are not named as parties (in this case the CFMEUW) may have been participants in negotiations for the proposed agreement. ¶70 The LGRCEU described the registration application as a routine matter. It was submitted the parties to the proposed agreement had presented an industrial agreement to the Commission which complied with the statutory requirements under the IR Act and that none of the prohibitions that may prevent the proposed agreement from being registered, apply in the present case. CFMEUW’s Submissions in opposition to the registration application ¶71 The bulk of the argument in opposition to the registration application was set out in the CFMEUW Submissions Opposing Application (CFMEUW’s submissions). ¶72 It was submitted the proposed agreement should not be registered because it does not comply with s 41A(2) and/or is not a registrable agreement, within the meaning of s 41 of the IR Act. ¶73 In the alternative, the CFMEUW submitted that if the proposed agreement is to be registered, it should be varied under s 41(3) of the IR Act, to give clear expression to the true intention of the parties, by including the CFMEUW as a party. Submission on s 41A(2) ¶74 It was submitted the Commission’s power to register an industrial agreement is not unlimited and is subject to the requirement under s 41A(2) of the IR Act. ¶75 The CFMEUW submitted that s 41A(2) should be interpreted by reference to the ordinary meaning of the words used in the section. It was submitted the resolution of the tension between s 41(1) and s 41A(2) having regard to the purposes of all the provisions of the scheme in the IR Act, is best resolved by affording paramountcy to s 41A(2). ¶76 Referring to s 83(1) of the IR Act, the CFMEUW submitted that it is clear any named party to an industrial agreement has standing to apply to the Industrial Magistrates’ Court for the enforcement of an entitlement as against the person who contravenes it. However it was noted, the IR Act generally only allows unions to represent workers who are eligible for membership. ¶77 It was submitted that if the plain reading of s 41A(2) is subordinated in the way the parties named in the proposed agreement say it should, any party to an industrial agreement would have standing to bring an application concerning a contravention. ¶78 The CFMEUW said this would, for example, allow a union that does not otherwise have the right to represent the interests of an employee who is covered by an industrial agreement, to bring an underpayment claim against the employer in the union’s name under s 83(1) in its capacity as a party to the industrial agreement, rather than relying on its ability to do so as the employee’s representative. ¶79 It was submitted the same union, despite having the standing to bring a claim under s 83(1), is not permitted to refer any other industrial matter to the Commission under s 29(1)(a)(ii) of the IR Act unless the person[s] to whom the industrial matter relates are eligible to be members of the union. ¶80 The CFMEUW contended that similar language to that used in s 29(1)(a)(ii) is not in s 83(1)(c) of the IR Act because of the limiting effect of s 41A(2) of the IR Act on s 83(1)(c). ¶81 It was submitted a plain reading of s 41A(2) would not lead to absurd outcomes. By way of example, the CFMEUW referred to a situation where one union party to an industrial agreement, decides to retire from an industrial agreement under s 41(6), in circumstances where multiple unions are parties. ¶82 The CFMEUW submitted that in this situation, the industrial agreement would continue to apply to the employees and the remaining union parties, notwithstanding that many employees covered by the industrial agreement may be outside the constitutional coverage of the union[s] that remain parties. ¶83 It was submitted that s 41A(2), on any reasonable construction, was included in the IR Act to prevent the situation described in the preceding paragraph [81]. Effect on multi-union agreements ¶84 It was submitted that if s 41A(2) of the IR Act is read strictly, an industrial agreement could only include multiple union parties, if all the employees to be covered, are eligible to be members of all the unions, that are named as parties. ¶85 On this construction of s 41A(2), ss 41(6) and 83(1) could then be applied consistently with the other provisions of the IR Act that limit the right of organisations (unions) to represent members or those persons who are eligible to be members. ¶86 The CFMEUW submitted, that although unions bargaining together, is something contemplated by the IR Act under s 42(6), the effect of s 41A(2) is to require each union to make separate industrial agreements in the same or similar terms, once an agreement is reached. ¶87 It was submitted the practical outcome of this process would be the same as a ‘combined industrial agreement’; except the employees covered by the industrial agreement would have to fall within the constitutional coverage of the named union party. ¶88 The CFMEUW suggested that multiple unions being required to make separate agreements will only cause a practical inconvenience or a disadvantage to negotiating parties if the default is that unions or employers, must bargain separately and negotiate terms that are not identical. ¶89 In support of this argument, the CFMEUW submitted that the norm or default that is established by s 42 of the IR Act (Bargaining for industrial agreement, initiating), is that even if each of the union parties, initially seek different terms and have different interests; there is one combined set of terms that will form the basis of their respective agreements if a final agreement is successfully reached among them. ¶90 It was submitted that to deviate from this norm, a negotiating party must seek permission from the Commission under s 42(6) to allow it to negotiate separately for a separate agreement in different terms. The CFMEUW went on to acknowledge, the IR Act provides several ways in which issues that arise in bargaining may be resolved. ¶91 The CFMEUW submitted that if the purpose of s 42(6) is not to address the implications of s 41A(2) in a situation where multiple unions are negotiating agreements with an employer, it is not clear what purpose it serves. It was submitted that giving primacy to the clear wording of s 41A(2) was conducive to a more harmonious interpretation of the IR Act that gives meaning to all the words used in s 41A(2) and s 42(6). ¶92 The CFMEUW submitted that if its construction of s 41A(2) is accepted, the Commission would not be permitted to register the proposed agreement because the LGRCEU under its rules, cannot represent staff officers and clerical workers in local government, who will covered by the proposed agreement. ¶93 It was submitted the Commission cannot, because of s 41A(2), register the proposed agreement, as it purports to bind employees the LGRCEU is not eligible to enrol as members. CFMEUW’s misrepresentation allegations ¶94 The CFMEUW submitted the proposed agreement is not a registrable instrument, because the CFMEUW is a party to the ‘agreement’ for the purposes of s 41(1) of the IR Act, that was agreed upon in bargaining by the negotiating parties. ¶95 It was submitted the proposed agreement represents an agreement made between some of the parties, but not all of them, with the result that an industrial agreement has not been made between all the parties for the purposes of s 41(2). ¶96 By this submission the CFMEUW says that before, the Commission can register the proposed agreement, it must turn its mind to whether it is an agreement as to an industrial matter, an agreement made between an organisation or association of employees and an employer or organisation or association of employers and that it had to be made for the purposes of s 41 and not for some extraneous or unlawful purpose. ¶97 The CFMEUW submitted the proposed agreement must be genuinely made within the meaning of s 41(1) to be capable of registration. This includes considering whether the agreement was made under misrepresentation. ¶98 To this end, it was submitted that in the early stages of bargaining for the proposed agreement, the COC made a representation to the CFMEUW that if there were no orders preventing the CFMEUW from having coverage of employees in local government and there were employees who were be eligible for membership of the CFMEUW at the time of registration, the CFMEUW would be included as a party to the proposed agreement. ¶99 On this basis, the CFMEUW says the union and its members who work at the COC, did not take any industrial action and they participated in the bargaining process in good faith. It was submitted that if this representation had not been made, the CFMEUW and its members would have likely taken a different course of action and arguably be in a different position. ¶100 It was submitted that as a result, the proposed agreement is vitiated by the COC’s misrepresentation, and the mandatory requirement for registration pursuant to s 41 has not come into effect. In other words, the proposed agreement does not meet the threshold requirement that it is a bona fide agreement made for the purposes of s 41(1) of the Act. ¶101 The CFMEUW submitted that refusing registration on the ground the proposed agreement does not meet the threshold requirements of s 41, would accord with the requirement to read the IR Act consistently with its overall objects. ¶102 The relevant objects the CFMEUW referred to as set out in s 6, include: to promote goodwill in industry and in enterprises within industry: (s 6(a)); to provide for rights and obligations in relation to good faith bargaining: (s 6(aa)); ‘to promote the principles of freedom of association and the right to organise: (s 6(ab)); ‘to promote collective bargaining and to establish the primacy of collective agreements over individual agreements: (s 6(ad)); to ensure all agreements registered under the Act provide for fair terms and conditions of employment: (s6 (ae)); and to encourage employers, employees, and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises: (s 6(ag)). Why the Commission should refuse to register the proposed agreement ¶103 The CFMEUW submitted the Commission was required under s 26 of the IR Act to ‘act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, and to have regard to the interests of persons immediately concerned’. ¶104 It was submitted the express and mandatory provision regarding the registration of industrial agreements in s 41(2), and the requirement found in case law, for there to be a ‘genuine agreement’ must be interpreted and applied in pursuit of the objects of the IR Act. ¶105 The CFMEUW said that when s 41(2) was drafted, it is unlikely the conduct the CFMEUW has alleged against the COC was expected. More specifically, the CFMEUW submitted the IR Act does not contemplate employers allowing a union to participate in bargaining without, at any point, intending to register an industrial agreement with that union as a party. ¶106 It was submitted the IR Act clearly contemplated unions and employers participating in bargaining with the expectation that if an in-principal agreement is reached, all the unions that participated in the bargaining, will be party to the resulting agreement. ¶107 The CFMEUW contended that if the Commission allowed the other parties to make the proposed agreement without including the CFMEUW, it would effectively be ‘greenlighting’ employers engaging in conduct to pacify a union in bargaining, in pursuit of adverse outcomes for employees. Variation to include the CFMEUW as a party ¶108 It was submitted the registration of the proposed agreement is subject to s 41(3) of the IR Act, which empowers the Commission to require the parties, to effect such variation[s] as it considers necessary or desirable, to give clear expression to the true intention of the parties. ¶109 The CFMEUW submitted that as a participant in bargaining, it was always intended that it would be included as a party under clause 1.2 of the proposed agreement. To this end, it was submitted the Commission should, exercise its power under s 41(3) of the IR Act and require the other parties to vary the proposed agreement to include the CFMEUW as a party. ¶110 It was submitted the other parties’ reliance on the decision in City of Cockburn is misplaced, as that decision did not address the specific issue of whether section 41(3) can be used to add a party to an industrial agreement. ¶111 The CFMEUW contended the emphasis in City of Cockburn on the limited role of s 41(3) does not preclude its use to ensure that the true intention of the parties is reflected in a resulting industrial agreement, including who will be named as parties. It was submitted this is particularly pertinent, in light the CFMEUW’s involvement in bargaining from the start of negotiations. Reasons the Commission should vary the proposed agreement ¶112 The CFMEUW submitted that its involvement in bargaining was evidence of the parties’ intention that it also be included as a party. This is despite the CFMEUW not being named in the application to register the proposed agreement. It was submitted the decision in City of Cockburn did not involve a case in which the true intention of the parties had been ‘misrepresented’. ¶113 The CFMEUW argued that s 41(3) is not limited to clarifying the wording of an agreement. Rather the section could be invoked to ensure the proposed agreement reflects the fair and proper representation of an agreement that was reached all parties who were involved in bargaining. ¶114 The CFMEUW said that because it represents a significant proportion of the COC’s workforce, its exclusion could undermine the fairness and legitimacy of the proposed agreement, which would be contrary to the objects of the IR Act. ¶115 It was submitted the CFMEUW’s inclusion as a named party to the proposed agreement would be consistent with the objects of the IR Act and would support fair and inclusive collective bargaining. ¶116 The CFMEUW submitted its exclusion from the proposed agreement would undermine the promotion and primacy of collective bargaining by forcing the CFMEUW to litigate for its inclusion as a party, notwithstanding it had participated in bargaining and there was no suggestion the CFMEUW had engaged in conduct that warranted its exclusion. ¶117 It was submitted the CFMEUW’s exclusion from the proposed agreement was one possible outcome of the 72A proceedings. The CFMEUW in effect submitted the other parties to the proposed agreement had made a pre-emptive decision to exclude the CFMEUW, had undercut its harmonious participation in collective bargaining and encouraged unnecessary disputation: (CFMEUW’s submissions paragraphs 46-48). ¶118 The CFMEUW submitted that even if section 41(3) of the IR Act is construed narrowly, the Commission has broad discretionary powers to ensure that industrial agreements are consistent with the objects of the IR Act. The CFMEUW submitted the circumstances of this matter involve extraordinary and novel conduct by the other parties to the proposed agreement, which justified the variation that was sought: (CFMEUW’s submissions paragraph 49). ¶119 It was submitted the kind of conduct at issue in this matter has not been contemplated in previous authorities. The CFMEUW submitted that in these unique circumstances, the decision in City of Cockburn case can clearly be distinguished. ¶120 The CFMEUW submitted that if the Commission, prefers the construction of s 41A(2) being pressed by the other parties and accepts that it can vary the proposed agreement under s 41(3) of the IR Act, the variation will comply with s 41A(2) because the CFMEUW has constitutional coverage of employees who work at the COC in classifications that are covered by the proposed agreement. ¶121 In relation to this, the CFMEUW submitted that it has constitutional coverage of ‘outside’ employees who are employed by the COC as; (a) carpenters; (b) painters and graffiti removalists; and (c) plant operators. Reply Submissions ¶122 In the City of Cannings’ Submissions in Reply (COC’s Reply Submissions), the COC argued the Commission should reject the CFMEUW’s construction of s 41A(2). It was submitted this interpretation of the provision is contrary to the text, context and purpose of the IR Act, and over 20 years of industrial practice. ¶123 The COC submitted that if the Commission accepts the CFMEUW’s construction of s 41A(2), it could jeopardise the validity of numerous industrial agreements registered by the Commission across several decades. ¶124 It was submitted the CFMEUW’s submission that it should be treated as party to the proposed agreement, was inconsistent with its claim for an order under s 41(3) of the IR Act to be added as a party. The COC together with the LGRCEU, submitted the CFMEUW’s construction of s 41A(2) relies upon the insertion of the word ‘all’ into the section. It was submitted that if Parliament had intended s 41A(2) to mean that all the employees who will be bound by the proposed agreement must be eligible to members of all the unions that are named as parties, s 41A(2) would have said this. ¶125 It was submitted the meaning to be given to s 41A(2) must be arrived at having regard to its text, in the context of the provision and its purpose. That context includes: (a) the explanatory memorandum for the bill that introduced the provision, which records that an ‘employer may commence bargaining with several unions to cover their entire workforce in an industrial agreement’; (b) s 6(e) of the IR Act, by which it is an object of the IR Act to discourage, so far as practicable, overlapping of eligibility for membership of employee organisations; (c) s 42(6) of the IR Act, which contemplates bargaining between an employer and more than one union as intended parties to an industrial agreement. See COC’s Reply Submissions - paragraph 9. ¶126 The COC submitted the construction advanced by the CFMEUW is contrary to the evident purpose disclosed by the broader context, namely that employers may reach an agreement with multiple unions whose membership does not overlap (at all, or in its entirety). It was submitted the construction advanced by the COC and the LGRCEU, and adopted by the Commission for two decades, is consistent with the evident purpose of the statute. ¶127 The COC did not accept the CFMEUW’s argument that a union party, which may not have coverage of all employees bound by an industrial agreement, might be afforded a greater rights to enforce an entitlement provision under s 83(1)(c) of the IR Act, even in respect of employees bound who are not eligible to be members, presented a difficulty that warranted a narrower construction of s 41A(2). ¶128 It was submitted the contravention of an industrial agreement, regardless of the identity of the employee affected by the contravention, is an industrial matter which relates to all the employees who are bound by an industrial agreement (as they all have an interest in the enforcement of the agreement). ¶129 On the construction of s 41, the COC submitted ‘the parties’ referred to in s 41(2) of the IR Act are the parties to the instrument, to which the application to register an industrial agreement relates. It was submitted the only agreement that has been made is the proposed agreement between the COC, the WASU and the LGRCEU, to which the CFMEUW is not and was never a party. ¶130 The COC denied the parties to the proposed agreement ‘arbitrarily excluded’ the CFMEUW. It was submitted the issue of whether the CFMEUW would be a named party was the subject of bargaining. The COC accepted this much was made clear in the CFMEUW’s log of claims and in the minutes of bargaining meetings. ¶131 It was submitted the CFMEUW did not however, convince the COC, the WASU and the LGRCEU in bargaining that it should be included as a party to the proposed agreement. It is on this basis the COC strenuously denied the CFMEU’s misrepresentation allegations: see COC’s Reply Submissions paragraph 25. ¶132 Similarly, the WASU and the LGRCEU, both in their reply submissions and during the registration hearing, each denied the CFMEU’s misrepresentation allegations. WASU Reply Submissions ¶133 In the WASU’s Outline of Submissions in Reply, the WASU argued that although the CFMEUW was a party to the negotiations for the proposed agreement, the WASU did not accept that it automatically followed, the CFMEUW had to be a party to the proposed agreement. ¶134 It was submitted the CFMEUW in its argument about the construction of the provisions in Division 2B of the IR Act, had conflated its role as a ‘negotiating party’ with the function of being a party to a resulting industrial agreement. ¶135 The WASU submitted the concepts are different, with the provisions of Division 2B, including s 42H, illustrating the distinction between a ‘negotiating party’ and who may ultimately go on to be made a party to an industrial agreement. ¶136 The WASU submitted that because of the distinction described, the IR Act allows some of the negotiating parties to reach agreement on the terms of an industrial agreement that will apply to them, including which organisations will be named as parties. As I understood the WASU’s submission, this is what happened with the proposed agreement. ¶137 It was submitted that while the CFMEUW might have wanted to be a party to the proposed agreement the CFMEUW was ultimately unable to convince the COC, WASU and the LGRCEU that this should occur. ¶138 To illustrate its point about the distinction between the role of a negotiating party, and being made a party to an industrial agreement, the WASU noted that Division 2B contains provisions that allow a negotiating party that does not reach an agreement to continue bargaining. ¶139 It was submitted that where there is no prospect of an agreement being reached, a ‘negotiating party’ may seek a declaration under s 42H(1) that will allow that negotiating party, to be carved out of the bargaining process and to make a separate application for an enterprise order under s 42I of the IR Act. ¶140 The WASU submitted that although the CFMEUW may have participated in bargaining and have members who work at the COC, there is nothing in the IR Act that required the COC, WASU and LGRCEU to make the proposed agreement with the CFMEUW. ¶141 It was further submitted there is no evidence the COC, WASU and the LGRCEU ever intended the CFMEUW would be made a party to the proposed agreement or that either party had misrepresented its position on the representation issue either. Consideration – principles to be applied ¶142 To determine this matter, the Commission is required to apply the principles of statutory construction to the provisions that are in issue. ¶143 These principles were referred to in City of Cockburn and extracted from the decision of the Industrial Appeal Court in Programmed Industrial Maintenance Pty Ltd v The Construction Industry Long Service Leave Payments Board [2021] WASCA 208; (2021) 101 WAIG 1457 (Programmed). ¶144 At paragraphs at [58] to [63] of Programmed Kenneth Martin J observed as follows: ¶145 58 There was no major disagreement between the parties (save in a respect discussed later in these reasons) over the principles of statutory construction applicable to the present task.  Those principles are found extensively discussed by both Scott CC and later in the Full Bench reasons of Kenner SC. ¶146 59  Given those principles are well settled, I mention only three leading case authorities relevant towards the present exercise.  First, I mention the observations of Buss J as the presiding member of the Industrial Appeal Court in The Commissioner of Police v Ferguson. In that appeal, Buss J addressed the principles of statutory construction relevant to the interpretation of s 33W of the Police Act 1892 (WA).  Conducting the exercise by reference to High Court authorities, his Honour observed: ¶147 70  In Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd, French CJ, Hayne, Crennan, Bell and Gageler JJ observed: ¶148 'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text' (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 [47]; [2009] HCA 41).  So must the task of statutory construction end.  The statutory text must be considered in its context.  That context includes legislative history and extrinsic materials.  Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.  Legislative history and extrinsic materials cannot displace the meaning of the statutory text.  Nor is their examination an end in itself' [39]. ¶149 See also Saeed v Minister for Immigration and Citizenship; Thiess v Collector of Customs. ¶150 71  The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The statutory text is the surest guide to Parliament's intention.  The meaning of the text may require consideration of the context, which includes the existing state of the law, the history of the legislative scheme and the general purpose and policy of the provision (in particular, the mischief it is seeking to remedy).  See CIC Insurance Ltd v Bankstown Football Club Ltd; Project Blue Sky Inc v Australian Broadcasting Authority; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue. ¶151 72  The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions.  See Certain Lloyd's Underwriters v Cross.  The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose.  See Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd. ¶152 73  As Crennan J noted in Northern Territory v Collins, '[s]econdary material seeking to explain the words of a statute cannot displace the clear meaning of the text of a provision (Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 538 [22] per Gleeson CJ, Gummow, Hayne and Heydon JJ; [2006] HCA 11), not least because such material may confuse what was "intended … with the effect of the language which in fact has been employed" (Hilder v Dexter [1902] AC 474 at 477 per Earl of Halsbury LC)' [99].  That statement of principle applies to extrinsic evidence admissible at common law and also to extrinsic evidence admissible under s 19 of the Interpretation Act 1984 (WA).  In other words, the statutory text, and not non-statutory language seeking to explain the statutory text, is paramount.  See Nominal Defendant v GLG Australia Pty Ltd.  (footnotes omitted) ¶153 60  Second, a significant decision concerning statutory interpretation was provided by the joint reasons of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection.[40]  Their Honours had observed there that: ¶154 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose.  Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense.  This is not to deny the importance of the natural and ordinary meaning of the word, namely how it is ordinarily understood in discourse, to the process of construction.  Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. ¶155 61 Gageler J, in providing separate reasons towards situations where a court is confronted with a 'constructional choice' towards the possible meanings of a statute, observed: ¶156 37 ... The task of construction begins, as it ends, with the statutory text.  But the statutory text from beginning to end is construed in context, and an understanding of context has utility 'if, and in so far as, it assists in fixing the meaning of the statutory text'. ¶157 38 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised.  More commonly, the choice is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural', in which case the choice 'turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies'. ¶158 39  Integral to making such a choice is a discernment of statutory purpose... ¶159 62 Gageler J's observations in SZTAL are presently relied upon by PIM to bear upon two aspects of its arguments supporting a narrower construction of the term 'construction industry' as deployed in the Act.  First, PIM submits that its contended meaning of 'construction industry' (which would limit the application of the definition only to nominated activities carried out at either building sites or construction sites) is open as one possible constructional choice.  It is a meaning that PIM, invoking the observations of Gageler J, says is not wholly ungrammatical or unnatural.[43]  Next, building from the assumed platform of that construction being open, PIM says that its contended meaning of the defined term 'construction industry' is a better fit overall - measured against the statutory purpose of the Act. This point will be elaborated upon later in these reasons. ¶160 63  The last case authority I mention regarding statutory construction is Commonwealth v Baume.  It provides longstanding authority for the proposition that the task of statutory interpretation should proceed on a basis of assuming that words in legislation be afforded some measure of coherent utility.  Put in more colloquial terms, text deployed within legislation ought to be assessed on the basis that it has some 'work to do'.  The more recent observations in  Project Blue Sky Inc v Australian Broadcasting Authority reaffirm this principle. ¶161 Having regard to the principles that are contained in the paragraphs I have extracted, it is necessary to first consider the meaning of s 41A(2) from its text. First constructional choice ¶162 I accept that there are two ways in which s 41A(2) of the IR Act may be interpreted. The first of these is favoured by the CFMEUW and largely relies upon a narrower construction of the provision. ¶163 The CFMEUW’s construction of s 41A(2), views the words ‘the employees’ as meaning ‘all’ or ‘each one of’ the employees who will be covered by an industrial agreement. Like the construction being pressed by the COC and LGRCEU, this interpretation would require additional words to be read into the provision. ¶164 In addition, the CFMEUW’s construction relies upon the Interpretation Act having no application to the present case. ¶165 If the CFMEUW’s construction is preferred, it follows the Commission would not be permitted to register the proposed agreement in its current form. This is because only one of the two union parties to the proposed agreement, (the WASU) has the right to enrol ‘all’ the employees who are bound by the proposed agreement, as members. ¶166 As the proposed agreement applies to both ‘inside’ and ‘outside’ classifications, the WASU is the only union party to the proposed agreement that is entitled under its rules, to represent both groups of employees. Second constructional choice ¶167 The second constructional choice is that which is favoured by the COC and the LGRCEU. It relies upon a much broader construction of s 41A(2). It is also dependent upon the Commission accepting the Interpretation Act applies when interpreting the IR Act. ¶168 If this construction is preferred and I form the view an ‘agreement’ as referred to in the text of s 41 of the IR Act, means a written instrument, to which the COC, WASU and LGRCEU are named as parties, then subject to the other requirements being met, including those under ss 41 and 41A(1), the Commission must register the proposed agreement. Interpretation Act ¶169 An issue that is pivotal to determining the matters at issue in this case is whether the Interpretation Act applies. ¶170 At s 3 the Interpretation Act relevantly says as follows: 3. Application (1) The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law — (a) express provision is made to the contrary; or (b) in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; … ¶171 From a review of the IR Act, it is difficult to see how the Interpretation Act would not apply to the construction of the provisions that are in issue. ¶172 More specifically, there does not appear to be anything in the IR Act, whether express or implied, that in my view, would exclude the Interpretation Act in the manner contemplated by s 3(1)(a) or (b) that I have extracted above. ¶173 Having formed this view, I am also mindful that because of s 19 of the Interpretation Act the Commission is permitted to have regard to the specified range of extrinsic materials (extrinsic materials), that go some way, albeit to a limited extent, to explaining how I should construe s 41A(2) of the IR Act in its proper context. Legislative history of s 41A(2) ¶174 Section 41A(2) as it currently appears in the IR Act was inserted as part of suite of amendments that were introduced with the Labour Relations Reform Act 2002 (LRR Act). ¶175 The LRR Act was principally directed at establishing an industrial relations system, in Western Australia to promote a collective approach to industrial relations. Also important was re-establishing the Commission’s role as an effective independent umpire in industrial relations: see Explanatory Memorandum, Labour Relations Reform Bill 2002 (WA) (LRREM) paragraphs 2(e) – 2(f). ¶176 To this end the IR Act was amended to include a requirement for negotiating parties to bargain in good faith. Provisions were also inserted to give the Commission increased powers to make arbitrated enterprise orders, in circumstances where negotiations for an industrial agreement became deadlocked or one party or the other, breached the requirement to bargain in good faith; see LRREM paragraphs [121] – [122]. ¶177 A greater role for unions in representing the industrial interests of employees in bargaining for wages and working conditions, was envisaged by the amendments that were contained in the LRR Act. This role was acknowledged in the new objects the CFMEUW referred to in its submissions, that I set out in the preceding paragraph [102] of these reasons. ¶178 To this end the good faith bargaining requirements that were inserted into the s 42B of the IR Act following the passage of the LRR Act include the following: 42B. Bargaining for industrial agreements, good faith required etc. (1) When bargaining for an industrial agreement, a negotiating party must bargain in good faith. (2) Without limiting the meaning of the expression, bargaining in good faith (emphasis added) by negotiating parties includes doing the following things – (a) stating their position on matters at issue, and explaining that position; (b) meeting at reasonable times, intervals and places for the purpose of conducting face-to-face bargaining; (c) disclosing relevant and necessary information for bargaining; (d) acting honestly and openly, which includes not capriciously adding or withdrawing items for bargaining; (e) recognising bargaining agents; (f) providing reasonable facilities to representatives of organisations and associations of employees necessary for them to carry out their functions; (g) bargaining genuinely and dedicating sufficient resources to ensure this occurs; (h) adhering to agreed outcomes and commitments made by the parties. … Abolition of individual workplace agreements ¶179 The LRR Act repealed the Workplace Agreements Act 1993 (WA) (WA Act) which at that time had promoted the making of ‘workplace agreements’ between individual employees and their employers, to the exclusion of collective instruments such as awards and industrial agreements. ¶180 Organisations (unions) prior the amendments made by the LRR Act, were unable to be parties to workplace agreements that were made under the WA Act. That is because workplace agreements could only be made between an employer and an individual employee: (s 5 WA Act). ¶181 As a result of the repeal of the WA Act, individual workplace agreements were abolished, with employees’ wages and working conditions to be covered; at a minimum, by awards; replaced by industrial agreements made under s 41 of the IR Act to which a union/unions would be a party; arbitrated enterprise orders; or by a new stream of collective instruments ‘Employer Employee Agreements’ to which union would not be a party: See LRREM – Part 3. ¶182 Consistent with the promotion of a collective approach to industrial relations, a restriction on bargaining for ‘multi-employer’ industrial agreements was also removed: LRREM paragraph [110]. Previous s 41A ¶183 The provision that preceded the current s 41A, was cast in very different terms and directed to a whole other purpose; ensuring industrial agreements were confined in their scope and application to a single enterprise. ¶184 Section 41A as it appeared in the IR Act immediately prior to the passage of the LRR Act was the provision that in effect, placed a prohibition on industry wide or multi-employer industrial agreements. It was previously framed in the following terms: 41A. Restriction on power to register industrial agreements (1) The Commission shall not under section 41 register an agreement as an industrial agreement if – (a) the agreement applies to more than a single enterprise; and (b) any term of the agreement is contrary to this Act or any General Order made under section 51, or any principles formulated in the course of proceedings in which a General Order is made under section. (1A) The Commission shall not under section 41 register an agreement as an industrial agreement unless the agreement includes an estimate of the number of employees who will be bound by the agreement upon registration. (2) For the purposes of subsection (1)(a) an agreement applies to more than a single enterprise if it applies to – (a) more than one business, project or undertaking; or (b) the activities carried on by more than one public authority. [Section 41A inserted by No. 15 of 1993 s.14; amended by No. 79 of 1995 s.10] ¶185 The change to s 41A as it now appears in the IR Act that followed the LLR Act, removed the prohibition that I have described in the preceding paragraph [168]. Single union agreements ¶186 To discern the proper construction of s 41A(2), I have considered two different scenarios the Commission may be presented with, in an application to register an industrial agreement under s 41 of the IR Act and how the language of the provision could apply to those scenarios. ¶187 The first scenario is the least controversial and having regard to the text of the provision is the easiest to grasp. It involves an application to register an industrial agreement where one only organisation (union) is a party. ¶188 The Commission in these circumstances would, by virtue of s 41A(2) of the IR Act only be permitted to register the agreement if ‘the employees’ who work in the classifications to which the industrial agreement applies, are either members of or eligible to be members of the union and; who work in the enterprise to which the agreement applies; or in the case of multi-employer agreements, who work for the employers to whom the industrial agreement applies. ¶189 Local Government provides some very workable illustrations of how s 41A(2) applies in practice to the registration of single union industrial agreements. ¶190 By way of example, the Commission can register an industrial agreement with a local government employer to which the WASU is a sole union party, because of the broad coverage the WASU has under its rules, to represent the industrial interests of employees in the local government industry both ‘inside’ and ‘outside’ (WASU Rules – Rule 5). ¶191 The LGRCEU by contrast, would because of its eligibility rule that confines the LGRCEU’s coverage to ‘outside workers’ would only be permitted to apply to register an industrial agreement as a single union agreement for those workers alone (LGRCEU Rules – Rule 3). ¶192 The section would also prevent the Commission from making multi-employer agreements with a single union as a party unless each of the employees who work in the classifications to which the industrial agreement applies, are eligible to be members. ¶193 This construction of s 41A(2) for single union agreements is supported by the context in which the WA Act was repealed and the IR Act was amended by the LRR Act. ¶194 It also sits comfortably alongside s 72A of the IR Act, which allows the Commission to modify an organisation’s capacity to represent the industrial interests of employees (which would include making industrial agreements) in particular enterprises or industries who work in callings that fall outside of its constitutional coverage. Greenfields agreements ¶195 When construing the words used in s 41A(2), in the context in which it was drafted, it is worth noting the provision, may be applied to the making of ‘Greenfields agreements’, under s 41 of the IR Act where unlike the present case there are no employees employed by the employer at the time the agreement is made. ¶196 Like the equivalent provisions of the Workplace Relations Act 1998 (Cth) that were in force at the time the LRR Act was passed, s 41 of the IR Act would allow an industrial agreement to be made between an employer and a union where a new plant or business is being established. ¶197 It stands to reason that where a greenfields agreement is being made, the function of s 41A(2) is to ensure the organisation, that will be party to what is an entirely new industrial agreement, is entitled to represent the industrial interests of the employees who will be bound by the resulting agreement. ¶198 S 41A(2) in these circumstances, would operate to prevent an employer from attempting to make an industrial agreement to the exclusion of the union with the legitimate right to represent the interests of its employees who will be bound by it, with an organisation that not only lacks the constitutional coverage to represent its workforce, but which the employer might regard as more quiescent: (A contemporary description of the relevant provision under s 170LL of the Workplace Relations Act 1998 (Cth) is provided in Creighton & Stewart, Labour Law – Third Edition [6.76]-[6.78]). ¶199 While I am not suggesting the situation that I have described in the preceding paragraph [183] has occurred in the present case, in the context of statutory provisions promoting good faith bargaining and freedom of association, the use of s 41A(2) as a mechanism to constrain such conduct, is a purpose that is readily discernible from the text of the provision. ¶200 Such conduct might also be viewed as contrary to both the object to promote ‘freedom of association and the right to organise’ under s 6 of the IR Act, but also the requirements of good faith bargaining under s 42B. Extrinsic materials ¶201 The content of the extrinsic materials lends some weight to my assessment of the purpose for which s 41A(2) was included in the IR Act. That said, I accept that beyond the explanation I have gleaned from the LRREM on why s 41A in its previous form was amended, there is a small amount extrinsic material to explain why the provision as it now appears in the IR Act is there and the subject matter it was intended to address. ¶202 In addition to the LRREM, a search of Hansard which captured the parliamentary debate for the introduction of the Labour Relations Reform Bill 2002 (WA) reveals the amendment of s 41A of the IR Act was canvassed: Hansard – Legislative Assembly - 27 March 2002 p 9503. ¶203 In a robust exchange with his opposition colleagues, the then Minister for Industrial Relations; the Hon John Kobelke MLA said the following about s 41A: Mr Kobelke: Proposed section 41A does not substantially amend the legislation; although it is amended to deal with demarcation matters. If two parties formulate an industrial agreement, they will then seek to have that agreement registered. Proposed section 41A does not change that. The commission will register the agreement subject to certain matters; that is, the nominal expiry date cannot be more than three years, it cannot be registered if it includes any provisions specified in relation to that agreement by an order referred to in section 42G, and it must include an estimate of the number of employees who will be bound by it. If it complies, it will be registered. Proposed subsection (2) includes another requirement in an attempt to reduce the potential for a demarcation dispute when two different organisations seek to register an industrial agreement to get coverage. ¶204 While the Minster’s statement might be somewhat light on detail, I nevertheless regard his acknowledgement that the amendment to s 41A(2) of the IR Act, was made to ‘reduce demarcation disputes’ as significant. ¶205 When the Minister’s comments are viewed alongside the contents of the LRREM that I earlier referred to, it appears reasonable to conclude s 41A(2) was intended to place a limit on the extent to which organisations (unions) would be allowed to secure an industrial agreement in businesses or for groups of employees whose employment arrangements were previously covered by individual workplace agreements, to which a union was not a party. ¶206 This limit involved placing a restriction on a union using industrial agreements as a means to extend its coverage to employees, which the union, under its rules, is not entitled to represent. This it appears, is despite the recognition of a bargaining agents as part of the good faith bargaining requirements being mandated in the amendments to the IR Act. ¶207 Although these contextual observations on the purposes of s 41A(2) might lend some weight to the interpretation being pressed by the CFMEUW, the argument in support of this construction faces some difficulty where the Interpretation Act applies, a point to which I will return. Multi-union industrial agreements ¶208 The second scenario that I have considered to discern the proper construction of s 41A(2) and which is at issue in this case, is where an application is made to register an industrial agreement to which two or more unions are parties. ¶209 As I indicated earlier in these reasons and despite the CFMEUW’s submission to the contrary, I do not consider that s 10 of the Interpretation Act has by reference to the context, objects or purpose of the IR Act, been excluded. ¶210 Having formed this view, it follows that the language used in ss 41(1) and 41A(2) that is expressed in the singular, must be construed in plural. As a result, the words ‘that organisation’ which appear in the final sentence of s 41A(2), when read in plural, should be read as ‘the organisations’ (emphasis added). ¶211 When interpreted this way, s 41A(2) would be taken to mean that employees who are bound by an industrial agreement, must be either members of or eligible to be members of at least one of the organisations that are parties to an industrial agreement. ¶212 I have acknowledged, this construction like the interpretation being pressed by the CFMEUW would require words to be read into s 41A(2). However, this in my view is as a result of the operation of s 10 of the Interpretation Act and not because I have imported words into the statute to correct a drafting deficiency. A construction consistent with the objects of the IR Act ¶213 I consider that a construction that does not impede the making of industrial agreements with more than one union as a party, would support and be consistent with the objects in s 6 of the IR Act. ¶214 Specifically, I consider this construction would enable parties to make industrial agreements that are appropriate to their needs, whether at an enterprise or industry level, thereby giving effect to an important object as described in s 6 of the IR Act as follows; (ag) to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees;’. ¶215 It would also be consistent with the other objects under s 6 of the IR Act, including the promotion of freedom of association and the right to organise and the promotion of collective bargaining. Relationship with other provisions in the IR Act ¶216 I consider the construction s 41A(2) that is favoured by the COC and the LGRCEU, but which relies on s 10 of the Interpretation Act, aligns with other provisions in the IR Act ¶217 One example is the requirement under s 61, that an organisation is subject to the jurisdiction of the Commission and the IR Act and all the members of an organisation are bound by the rules of the organisation, while they are members. ¶218 The effect of s 61, where more than one organisation is a party to an industrial agreement, is that each organisation, will only be permitted to enrol employees as members, who work in a classification or classifications under the industrial agreement, which the organisation is entitled to enrol as members, under its rules: (s 61 of the IR Act). ¶219 If it is accepted that s 41A(2) is taken to mean that employees who are bound by an industrial agreement, must be either members of or eligible to be members of at least one of the organisations that are named as parties to an industrial agreement, then because of s 61 there would be a limit, under its rules, on the employees a union could enrol as members. ¶220 This construction of s 41A(2) would have the effect that organisations who have either only partial coverage (for example where there are two organisations named as parties and each one represents the industrial interests of different classifications) or as in the case of the LGRCEU in this matter, overlapping coverage, (for example both unions may enrol outside workers as members), could each be parties to the same industrial agreement. Relationship with s 42 of the IR Act ¶221 I do not accept the CFMEUW’s submission that s 42 of the IR Act assists with the construction of s 41A(2). More specifically, I do not consider that s 42(6) was inserted into the IR Act to address implications presented by s 41A(2). ¶222 Those parts of s 42 of the IR Act that are relevant on this point are in the following terms: 42. Bargaining for industrial agreement, initiating (1) Bargaining for an industrial agreement may be initiated by an organisation or association of employees, an employer or an organisation or association of employers giving to an intended party to the agreement a written notice that complies with subsection (3). … (6) Where bargaining is initiated under subsection (1) with more than one intended party to the agreement, all the negotiating parties are to bargain together unless the Commission, on the application of a negotiating party, directs that that negotiating party may negotiate separately with the initiating party. … ¶223 While s 42 falls within the same division of the IR Act as s 41A(2), it appears its inclusion is for a designated purpose; the initiation of bargaining and the circumstances in which parties (which could include employers against whom bargaining is initiated for a multi-employer agreement) are to bargain together. ¶224 Section 42 is not concerned with the requirements that must be met for the registration of an industrial agreement. It is directed to commencing a process to trigger the parties’ rights when one or the other is not bargaining in good faith or bargaining is at a stalemate, rather than the requirements that must be satisfied for the registration of an industrial agreement. ¶225 I am therefore respectfully inclined to accept that the CFMEUW in its submissions, has conflated the concept of being a party to an industrial agreement with that of a negotiating party, a point to which I will return. Section 41A(2) is not the leading provision ¶226 It is well established that reconciling conflicting provisions in a statute will often require a court or tribunal to determine which is the leading provision and which is the subordinate provision, and which must give way to the other; Project Blue Sky & Ors v Australian Broadcasting Authority [1998] 194 CLR 355 (Project Blue Sky) at [70]. ¶227 It is only by determining the hierarchy of provisions will it be possible to give each provision the meaning, which best gives effect to a statute’s purpose and language, while maintaining the unity of the statutory scheme: Project Blue Sky at [70] ¶228 Having applied this principle to the present case, it is my view the provision that should make way for s 41A(2) is s 41(1). This is because a paramount purpose of the IR Act is the promotion collective bargaining and the making of industrial agreements that best suit the needs of enterprises within industries. A narrow construction of s 41A(2) would clearly hinder this purpose. Not an absurd construction ¶229 I am not convinced that the construction of s 41A(2) favoured by the COC and the LGRCEU, would lead to the types of absurd results the CFMEUW has foreshadowed in its submissions. ¶230 Moreover, the construction of s 41A(2) that has enabled the making of multi-union industrial agreements, has as a matter of longstanding practice, been supported across industries and previously, by each of the union parties in this matter: (see LGRCEU Submissions at paragraph 8 and accompanying footnotes on the previous agreements that have been made to which the CFMEUW is a joint party). Conclusion on the construction of s 41A(2) ¶231 For all the reasons I have set out in the previous paragraphs [143]-[215], I do not accept that s 41A(2) of the IR Act presents as a barrier to the registration of the proposed agreement. ¶232 I consider that the construction of s 41A(2) of the IR Act that applies without controversy, for the registration of an industrial agreement where only one organisation is a party, may by operation of s 10 of the Interpretation Act, be applied so that unions with either partial or overlapping coverage may be made parties to a single industrial agreement. ¶233 Having reached this conclusion, I will now turn to consider the CFMEUW’s next argument in opposition to the registration of the proposed agreement. The CFMEUW’s submission on whether there is an agreement ¶234 As I understand the CFMEUW’s submissions, the CFMEUW says that because it was involved in the negotiations for the proposed agreement as a negotiating party and a final agreement was reached in those negotiations which the CFMEUW supported, it follows that I should find the outcome that was reached in those negotiations was an agreement, to which the CFMEUW is a party: (t-s 15-18). ¶235 The CFMEUWs submission put another way, is that the proposed agreement is not a registrable agreement in respect of an industrial matter because it does not reflect what was agreed between the negotiating parties in bargaining. ¶236 By its submission, the CFMEUW in effect contends that an industrial agreement within the meaning of s 41(1) of the IR Act is not just the signed instrument that is put before the Commission for registration. ¶237 Rather, the CFMEUW submits the Commission is required to take a more expansive view of what an industrial agreement means. It was submitted I should therefore conclude that an agreement can only be made where each of the organisations who were involved in bargaining for the industrial agreement are named as parties. Distinction between negotiating parties and the parties to an industrial agreement ¶238 I consider that there are several difficulties with the CFMEUW’s submission that despite what the registration application says, the CFMEUW should be treated as a party to the proposed agreement. ¶239 Firstly, I consider the language used in s 41 in the context of Division 2B, makes a separation between bargaining for an industrial agreement and the various instruments that may result from this process. ¶240 I consider that Division 2B of the IR Act contemplates three separate, yet related processes as follows: bargaining for an industrial agreement (which includes the initiation of bargaining and the requirement to bargain in good faith); the making, registration and effect of an industrial agreement; the recourse that is available when a negotiating party does not bargain in good faith, bargaining becomes deadlocked or when bargaining is at an end. ¶241 Relevantly s 40C, which precedes s 41 within Division 2B, is in the following terms: 40C. Terms used In this Division – initiating party, (emphasis added) in relation to a proposed industrial agreement, means the party that initiated the bargaining for the agreement under section 41(1); negotiating party, (emphasis added) in relation to a proposed industrial agreement, means – (a) the initiating party; and (b) a person who notifies the initiating party under section 41A(1) that that person will bargain for the industrial agreement; … ¶242 The terms ‘initiating party’ and ‘negotiating party’ are used throughout Division 2B, particularly in those sections that relate to the bargaining process that were introduced with the LRR Act; (see for example ss 40C, 42, 42A, 42B, 42C, 42D, 42E, 42F, 42G,42H and 42I). ¶243 Significantly, neither term (initiating party or negotiating party) appears in the description of the parties who may make an industrial agreement under s 41(1) of the IR Act. ¶244 Section 41 of the IR Act is not a new provision. By this, I mean that while s 41 sits alongside those parts of Division 2B that were introduced with the passage of the LRR Act that I have referred to, the section as it appears now, was in previous versions of the IR Act. ¶245 It is my view that if parliament had intended that an industrial agreement could only be made between the initiating party and negotiating parties, (which is the construction the CFMEUW in effect contends I should prefer), s 41 would have been amended to say this. ¶246 I consider that the exclusion of these terms from s 41 (initiating party, negotiating party) was a deliberate constructional choice, with the intention that s 41 was directed to the form of an industrial instrument to be registered, where an agreement with respect to an industrial matter is reached, between an employer or employers and the organisation or organisations, who are the parties to an industrial agreement. ¶247 The effect of this finding is that even if I proceed on the basis the CFMEUW was a negotiating party within the meaning of s 40C of the IR Act, it does not follow that there is a requirement under ss 41(1) or 41(2) for the CFMEUW to be included as a party to an industrial agreement. Industrial agreement must be a registrable instrument ¶248 The second difficulty I have with the CFMEUW’s submission that the agreement should be regarding as the registrable instrument, is one to which the CFMEUW is a party, is that the language of s 41, strongly suggests an ‘industrial agreement’ must be a tangible document, that is capable of being ‘registered’, provided the relevant pre-conditions for registration are met. ¶249 In other words, I consider that the purpose of s 41 is to provide the legislative mechanism by which an ‘agreement with respect to an industrial matter’, between an employer or employers and an organisation or organisations, is to be formalised and reduced to a documentary form. ¶250 Consistent with this construction, an ‘industrial agreement’ is a term defined under s 7 of the IR Act as follows; ‘industrial agreement means an agreement registered by the Commission under this Act as an industrial agreement’. ¶251 The requirement for an industrial agreement to be produced in a signed documentary form is evident from Regulation 55 of the Industrial Relations Commission Regulations 2005 (WA) which relevantly provides: 55. Application for industrial agreement (1) Any application for registration of an industrial agreement must be accompanied by – (a) a copy of the agreement, as executed by all of the parties to that agreement; and (b) a statement that summarises any changes that the agreement effects in the relevant rates of pay and conditions of employment of the employees to whom the agreement relates. (2A) An application by all of the parties to an agreement must be signed by each of them or their agents, and when necessary, sealed by them. … ¶252 It is trite that before an industrial agreement can be registered, there must be an ‘agreement with respect to an industrial matter’. ¶253 The Macquarie Dictionary variously defines an ‘agreement’ as; ‘the act of coming to a mutual arrangement’; ‘a unanimity of opinion’; ‘an expression of assent by two or more parties to the same object’, and ‘the phraseology, written or oral of an exchange of promises’. ¶254 There is no dispute the matters regulated by the proposed agreement including the organisations that are the parties to the proposed agreement, fall within the description of an ‘industrial matter’ that may be the subject of an industrial agreement. ¶255 It is also not disputed the COC, WASU, LGRCEU and CFMEUW had each agreed on the wages and working conditions to apply under the proposed agreement. ¶256 However, the matter the parties have not reached ‘a unanimity of opinion or mutual arrangement’ on, was in respect of the representation issue and the CFMEUW being made a party to the proposed agreement. Parties to an industrial agreement must be agreed ¶257 It is of relevance that the requirement to bargain in good faith in s 42D that appears in Division 2B, does not require a negotiating party to agree upon any matter to be included in or excluded from an industrial agreement: s 42D(a). ¶258 It is also relevant the duty to bargain in good faith, does not require a negotiating party to enter into an industrial agreement either: s 42D(b). ¶259 Also significant is the restriction on the Commission’s power to give any directions or make an order requiring or that would have the effect of requiring a negotiating party to enter into an industrial agreement or to include any matters that are not agreed: s 42F. ¶260 While I accept the negotiating parties in this matter have agreed upon the wages and working conditions that will apply to the COC’s employees who will be covered by the proposed agreement, they have not agreed the CFMEUW would be made a party. ¶261 The inclusion of the CFMEUW as a party is something each of the negotiating parties would have had to agree to. As there was no agreement between the negotiating parties on the representation issue, I am not satisfied the proposed agreement is an instrument to which the CFMEUW is a party. ¶262 For this reason, I am satisfied the parties to the proposed agreement are the organisations that are described in Clause 1.2 of the proposed agreement. Variation of the proposed agreement under s 41(3) ¶263 There is in my view two difficulties with the submission on s 41(3) being pressed by the CFMEUW. Firstly, and as the text of the provision suggests, I consider that the Commission’s power under s 41(3) may only be exercised in respect of the named parties to an industrial agreement. ¶264 In view of my finding that the organisations named (WASU and LGRCEU), are the union parties to the proposed agreement, I do not consider that I have the power under s 41(3) of the IR Act to join the CFMEUW as a party. ¶265 The power under s 41(3) of the IR Act is confined to requiring the parties’ (emphasis added) to an industrial agreement, to effect such variation as the Commission considers necessary for the purpose of giving clear expression to the true intention of ‘the parties’. ¶266 Secondly, and more crucially, if the Commission had the power under s 41(3) to make the variation sought, I would need to be satisfied the COC, WASU and LGRCEU had intended the CFMEUW would be made a party to the proposed agreement. ¶267 While I accept the three parties to the proposed agreement were content for the CFMEUW to take part in bargaining as a ‘negotiating party’, I am not satisfied that a consensus was ever reached on the representation issue. ¶268 Thirdly, I do not consider that s 41(3) of the IR Act gives the Commission a broad, discretionary power to compel parties to make a variation to an industrial agreement on a matter they have not agreed upon. ¶269 As the decision of the Full Bench in City of Cockburn at [170] makes clear, so long as the minimal conditions under ss 41 and 41A are met, the Commission must register an industrial agreement. It seems that s 41(3) is there to give the Commission the power to correct spelling, grammatical and other drafting errors that may make provisions of an agreement unclear or give rise to confusion. ¶270 There is a limit to the Commission’s power under S41(3) and it is not directed to major alterations of an industrial agreement: see City of Cockburn at [169] citing Construction Forestry Mining and Energy Union of Workers v Sanwell Pty Ltd and the Chamber of Commerce and Industry of Western Australia [2004] WAIRC 10947; (2004) 84 WAIG 727 at [56]. Requirements for the registration of the proposed agreement ¶271 I am satisfied the requirements for the registration of the proposed agreement that apply under ss 41(1), 41(2), 41A(1), 48A 49Y, of the IR Act have been met. Each of the matters that must be complied with under these provisions are not in controversy. ¶272 In relation to s 41A(2), I am, having regard to rules of the LGRCEU and WASU, satisfied the COC’s employees, who work in the callings that are described in Clause 20 and Appendix 1 of the proposed agreement, are eligible to be members of either the WASU (in respect of the inside and outside classifications) or the LGRCEU (outside classifications only). ¶273 The proposed agreement having regard to s 41A(1)(a) has a nominal expiry date under Clause 1.4 that is no later than 3 years after the date on which the proposed agreement will come into operation; 30 June 2027. ¶274 In relation to the requirement under s 41A(1)(c) of the IR Act, Clause 1.3 of the proposed agreement states the proposed agreement will apply to approximately 800 employees. ¶275 In respect of s 48A, and the necessity for an industrial agreement to contain a dispute resolution procedure, I am satisfied that Clause 27 of the proposed agreement meets this requirement. ¶276 The proposed agreement does not contain any provisions that would offend s 49Y of the IR Act which places a constraint on the inclusion of union right of entry provisions beyond those that otherwise apply under Division 2G. CFMEUW’s application for an enterprise order ¶277 In paragraphs [94]-[102] and at [117] – [118] I have provided a description of the misrepresentation allegations the CFMEUW has made against the COC, WASU and LGRCEU about their conduct in bargaining, in relation to the representation issue and the CFMEUW not being joined as a party to the proposed agreement. ¶278 At paragraphs [130]-[132], I have noted the COC has strenuously denied the CFMEUW’s misrepresentation allegations. I have similarly noted the WASU and LGRCEU have each denied that they engaged in such conduct. ¶279 I have not made any findings on the CFMEUW’s misrepresentation allegations. As I observed in paragraphs [161] and [225] of these reasons, Division 2B of the IR Act provides several alternative pathways for ‘negotiating parties’ who are unable to reach an industrial agreement, to secure a collective industrial instrument for the employees it represents, including making an application for an enterprise order under s 42I. ¶280 I am aware the CFMEUW has made an application for an enterprise order, as this was brought to my attention in the lead up to the registration hearing. It is my view the CFMEUW’s application for an enterprise order would provide a more appropriate forum for the Commission to make any findings on the misrepresentation allegations the CFMEUW has raised. ¶281 I also consider that in the absence of a final agreement being reached between the CFMEUW and the COC on the terms of an industrial agreement, an application for an enterprise order may provide the means by which the CFMEUW can obtain a collective instrument, that resolves the representation issue and which applies to the COC’s employees the CFMEUW is entitled to enrol as members. ¶282 While the CFMEUW’s application for an enterprise order is being determined, there is in my view no reason why the Commission should not register the proposed agreement, which will apply to the COC’s employees, who the LGRCEU and WASU are entitled to enrol as members. Conclusion ¶283 For all the reasons set out in the preceding paragraphs, I am satisfied that the proposed agreement meets each of the relevant requirements under the IR Act for the registration of an industrial agreement and should be registered. ¶284 An order to this effect will subsequently issue.