WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2014 WAIRC 00975 CORAM : COMMISSIONER S M MAYMAN HEARD : TUESDAY, 26 AUGUST 2014 DELIVERED : FRIDAY, 29 AUGUST 2014 FILE NO. : U 171 OF 2013 BETWEEN : PHILLIP DIGNEY Applicant AND THE BLACK COCKATOO PRESERVATION SOCIETY OF AUSTRALIA Respondent CatchWords : Industrial Law – Claim of perceived bias – Principles – Conciliation – Jurisdiction referred – Application of perceived bias dismissed s 29(1)(b)(i) Legislation : Industrial Relations Act 1979 (WA) Result : Application of perceived bias dismissed REPRESENTATION: Applicant : Mr S Banovich (of counsel) Respondent : Mr G Dewhurst Case(s) referred to in reasons: Bartlett v Aboriginal Alcohol and Drug Service (Inc) (2009) 90 WAIG 290 Ebner v Official Trustee in Bankruptcy [2000] 205 CLR 337 McCarthy v Sir Charles Gardiner Hospital (2004) 84 WAIG 1304 Vakauta v Kelly [1989] 167 CLR 568 Case(s) also cited: Springdale Comfort Pty Ltd t/as Dalfield Home v Building Trades Association of Unions of Western Australia (Association of Workers) (1986) 67 WAIG 325 Reasons for Decision Introduction 1 This is a s 29(1)(b)(i) application lodged by Mr Phillip Digney (the applicant) on 17 October 2013 under the Industrial Relations Act 1979 (WA) (the Act). The application was lodged against The Black Cockatoo Preservation Society of Australia (the respondent). 1542 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 2 The applicant alleged he was constructively dismissed by the respondent and was forced to resign effective as of 26 September 2013 following a series of events that occurred after the applicant lodged bullying complaints against members of the respondent’s board. 3 The respondent submits the applicant was not dismissed but was employed on a six month contract. As no funds were available, the position could not be filled. The applicant was stood down for inappropriate behaviour which was subject to investigation until he resigned. On 23 May 2014 the respondent submitted an amended Notice of Answer outlining that the applicant was employed as a contractor. On 24 August 2014 the respondent submitted a further amended Notice of Answer. That document suggested: 1) The society engaged the applicant as a contractor upon his own request and was afforded all the conditions and he was paid on an ABN basis. 2) The society informs the applicant and the WAIRC that we no longer will participate in mediation sessions and attend the WAIRC for the following reasons. a. The applicant was engaged by the society as a contractor. Contractors are not represented by the WAIRC. b. All employees of the Black Cockatoo Preservation Society of Australia are covered under the national system employer for the purpose of section 14(1)(a) of the Fair Work Act 2009. Because it is a constitutional corporation within the meaning of section 51 of the Commonwealth constitution. Therefore the WAIRC will [sic] does not have jurisdiction to deal with the applicants claim. This is because the WAIRC is established under a state industrial law and section 26 confirms the Fair Work Act will apply to the exclusion of all state industrial laws which would otherwise apply to a national system employer. (extract from amended Notice of Answer) 4 The