WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2017 WAIRC 00793 CORAM : COMMISSIONER D J MATTHEWS HEARD : TUESDAY, 6 JUNE 2017, TUESDAY, 22 AUGUST 2017 DELIVERED : FRIDAY, 8 SEPTEMBER 2017 FILE NO. : APPL 17 OF 2017 BETWEEN : THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA Applicant AND AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WESTERN AUSTRALIAN BRANCH Respondent CatchWords : Application for true interpretation of clause of industrial agreements - Respondent applied for dismissal pursuant to section 27 (1)(a) Industrial Relations Act 1979 - Respondent's application dismissed - Dispute relates to meaning of word "required" - Principles of interpretation of industrial instruments discussed and applied - "Required" interpreted Legislation : Financial Management Act 2006 Industrial Relations Act 1979 Minimum Conditions of Employment Act 1993 Result : Agreements interpreted 97 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1841 Representation: Counsel: Applicant : Mr D Anderson Respondent : Mr A Stewart Solicitors: Applicant : State Solicitor’s Office Respondent : Chapmans Barristers & Solicitors Cases referred to in reasons: Attorney General v Gray [1977] 1 NSWLR 406 Board of Trustees of the State Public Sector Superannuation Scheme v Welsh [2000] QSC 335 Commonwealth of Australia v Hamilton [1992] 2 Qd R. 257 Director General, Department of Education v United Voice WA [2013] WASCA 287 NSW Nurses and Midwives Association v Western Sydney Local Health District (2016) 257 IR 82 Re Harrison; Ex parte Hames [2015] WASC 247 Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 67 WAIG 1097 Technomin Australia Pty Ltd v Xstrata Nickel Australasia Operations Pty Ltd [2014] WASCA 164 Case(s) also cited: Australian Liquor, Hospitality and Miscellaneous Union, Miscellaneous Workers Divisions, Western Australian Branch v Board of Management, Fremantle Hospital and Hospital Service (Unreported, Complaint No 87 of 1997, delivered 17 November 1997) Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353 Director General of Department of Justice v Civil Service Association (2004) 85 WAIG 629 Henry v Henry (1996) 185 CLR 571 Ian MacFarlane v Halperin Fleming & Meertens (2001) 82 WAIG 150 Kucks v CSR Ltd (1996) 66 IR 182 O’Sullivan v Farrer (1989) 168 CLR 210 Rogers v The Queen (1994) 181 CLR 256 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2014) 94 WAIG 787 The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2015) 95 WAIG 1503 Reasons for Decision 1 The applicant applies to have me declare the true interpretation of the word “required” in the following clauses (all of which are in relevantly similar terms): • Clause 4.2.6 of the Public Transport Authority/ARTBIU (Transit Officers) Industrial Agreement 2015; • Clause 4.3.6 of the Public Transport Authority/ARTBIU (Transwa) Industrial Agreement 2016; • Clause 4.4.3 of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2014; and • Clause 4.3.6 of the Public Transport Authority Railway Employees (Network and Infrastructure) Industrial Agreement 2014. 2 The respondent argues that I should not act under section 46 Industrial Relations Act 1979, and should dismiss the application pursuant to section 27(1)(a) Industrial Relations Act 1979, because there are proceedings before the industrial magistrate’s court which will require that court to interpret one of the clauses set out above, namely clause 4.4.3 Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2014, and therefore the current proceedings are: (1) not necessary or desirable in the public interest (with reference being made to section 27(1)(a)(ii) Industrial Relations Act 1979); (2) an abuse of process or vexatious (with reference being made to section 27(1)(a)(iv) Industrial Relations Act 1979). 3 I have been provided with a copy of the initiating document in the industrial magistrate’s court proceedings, being the Originating Claim in M 202/2016 filed 4 December 2016. 4 The claim pleads that the Public Transport Authority “formed the view” that the claimant’s member had been overpaid and refers to “the alleged overpayment.” 1842 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 97 W.A.I.G. 5 The claim pleads that the Public Transport Authority recovered the “overpaid [amount] by deducting [the claimant’s member’s] pay on various occasions.” 6 The claim pleads that the deductions were “not authorised.” 7 The claim pleads that the Public Transport Authority is in breach of section 17C(1) Minimum Conditions of Employment Act 1993 because the claimant’s member was not, when the deductions were made, paid his wages in full. 8 There is a “defence” to a claim of such a breach being that the deductions were authorised in one of the ways set out in section 17D(1) Minimum Conditions of Employment Act 1993. 9 The claim pleads that “the deductions were not authorised under section 17D(1) Minimum Conditions of Employment Act 1993.” 10 It is not entirely clear from the claim whether the claimant disputes the overpayment or whether it confines itself to a complaint about the method of recovery it alleges the Public Transport Authority used. Submissions made before me did not clarify this. 11 On balance, the pleading that the Public Transport Authority “formed the view” that the claimant’s member had been overpaid, and the claim’s reference to “the alleged overpayment”, inclines me to the view that the claimant has raised by its pleadings the matter of whether or not there was an overpayment. Certainly there is no positive pleading admitting there was an overpayment. 12 I consider it possible that the industrial magistrate’s court in M 202/2016 may turn its mind to whether the claimant’s member was “required to repay” an amount to the Public Transport Authority. 13 I will decide the section 27(1)(a) Industrial Relations Act 1979 application against that background. 14 The respondent says, firstly, that it is not necessary or desirable for the