Disciplinary proceedings should be allowed to conclude without interference by the Commission unless the allegations are shown to be baseless.

Section 72A of the IR Act confers a wide and broad discretion on the Commission in Court Session to determine whether an organisation should have the right to exclusively represent the industrial interests of employees in an enterprise; the discretion is confined only by the scope and purpose of the legislation and the objects of the Act.

The various factors identified in Full Bench decisions concerning s72A applications (commencing with Coflexip 1994 through to Brickworks 2012) are not statutory criteria prescribed in s72A itself, but rather guiding principles to inform the exercise of the Commission's broad discretion.

The s72A factors are not to be viewed as a mandatory 'checklist' each element of which must be satisfied, nor as a civil 'cause of action' where each element must be established on the balance of probabilities; rather, s72A confers a broad discretion not subject to such rigid formulation.

Many of the factors relevant to s72A applications are common factors that extend across enterprises, including matters such as community and public interest, existence of community of interest, pattern of award and industrial agreement coverage, constitutional coverage, need to reduce number of organisations and discourage overlapping coverage, advancement of the objects of the Act, industrial behaviour of organisations, and ability of organisations to service members.

It is not necessary to examine the position in respect of each individual enterprise in s72A proceedings in order to determine constitutional coverage and eligibility for membership; this determination can be made on an industry-wide or common basis where evidence supports such findings.

In reducing the numbers of organisations and discouraging overlapping coverage, these are matters common across multiple enterprises and do not require enterprise-specific findings; such matters have been held to be of substantial significance having regard to the objects of the Act in s6(e).

The interests of employers and employees in s72A applications can be determined on the basis of general evidence concerning representative role, services provided to members, and conduct at identified enterprises, rather than requiring enterprise-by-enterprise analysis where outcomes and impacts extend across the sector as a whole.

An industrial dispute may arise between an employer and an association of employees without necessarily identifying a particular employee as a disputant. A union can bring about an industrial dispute by taking up the cause of a dismissed employee.

The Commission's unfair dismissal jurisdiction is not excluded by the terms of Part X of the Prisons Act and the engagement provisions in s13 of that Act, nor by reg 5(4) of the Prisons Regulations, despite the comprehensive disciplinary scheme applying to prison officers, because reg 5(4) provides no right of appeal, and thus the exclusion in s23(3)(d) does not operate.

The exercise of powers under s44(6)(ba) of the Industrial Relations Act 1979 (WA) is not at the asking of a party; mere reference to s26(1) and general notions of fairness are insufficient. The onus is on the party seeking interim orders to establish one or more of the relevant criteria specified in s44(6)(ba).

While s44(6)(ba) powers are broad and should not be read down, s44(6)(ba)(iii) is concerned with the Commission's powers to require parties to exchange information or divulge their views in relation to matters in dispute as an aid in resolution, including production of documents or exchange of statements of position, but does not extend to mandatory injunctions overturning suspension or restoring status quo.