CITY OF MELVILLE AND OTHERS AS REFERRED TO IN THE ATTACHED SCHEDULE

CatchWords : Industrial law (WA) - Industrial Relations Act 1979 (WA) - New State instruments - Construction of s 80BB - Effect of s 80BB in relation to the Local Government Industry Award 2020 - Whether the new State instrument exists as a single multi-employer collective instrument for all declared employers or whether multiple individual new State instruments exists for each declared employer - Preliminary issue determined

Fair Work Act 2009 (Cth) Industrial Relations Act 1979 (WA) Industrial Relations (General) Regulations 1997 (WA) Interpretation Act 1984 (WA)

Mr C Fogliani (of counsel) on behalf of the Western Australian Municipal, Administrative, Clerical and Services Union of Employees

Ms J Flinn (of counsel) on behalf of the Shire of Dundas

Ms D Lamb (of counsel) on behalf of the Shire of East Pilbara

Ms R Panetta (of counsel) on behalf of the Minster for Industrial Relations

City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees & Ors [2023] WAIRC 00787; (2023) 103 WAIG 1723

East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109

East West Airlines Ltd v Turner [2010] NSWCA 53; (2010) 78 NSWLR 1

Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Re Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513

SZTZAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

The Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch v Western Australian Government Railways Commission (2000) 80 WAIG 1740

Valuer-General of New South Wales v In Adam Pty Ltd [2012] NSWCA 20; (2012) 211 LGERA 75

Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Bunbury & Ors [2024] WAIRC 00443

Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Gosnells & Ors [2024] WAIRC 00422

Western Australian Municipal, Administrative, Clerical and Services Union of Employees v Shire of Northampton [2024] WAIRC 00459

Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Swan & Ors [2024] WAIRC 00463

Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38

1. The Western Australian Municipal, Administrative, Clerical and Services Union of Employees (WASU) has applied under s 80BH of the Industrial Relations Act 1979 (WA) (IR Act) for an order naming WASU as a party to a new State instrument. The new State instrument referred to in WASU's application is 'the Local Government Industry Award 2020 Industrial Agreement'. WASU listed some sixty local governments as respondents to its application.
2. The question which has arisen and which I am presently deciding as a preliminary issue is whether, in respect of the Local Government Industry Award 2020 (LGIA), what was created by the operation of s 80BB(2) and (3) of the IR Act, is a single new State instrument applying collectively to all relevant local governments or whether there is a separate new State instrument in respect of each relevant individual local government.
3. If there is a separate new State instrument in respect of each relevant individual local government then WASU's application is misconceived and cannot proceed in its current form as an application in respect of one new State instrument.
4. The preliminary issue turns on the correct construction of s 80BB of the IR Act concerning new State instruments.

Local government change from Federal to State system

1. WASU's application follows the local government transition from the federal to the State industrial relations system. I will borrow from the Full Bench's decision in City of Cockburn v Western Australia Municipal, Administrative, Clerical and Services Union of Employees & Ors [2023] WAIRC 00787; (2023) 103 WAIG 1723 [1] - [3] (City of Cockburn) for a description of the transition:

On 1 January 2023, the local government industry transitioned from the national industrial relations system to the State industrial relations system, as a consequence of the Industrial Relations Legislation Amendment Act 2021 (WA), the Fair Work Amendment (Transitional Arrangements - Western Australian Local Government Employers and Employees) Regulations 2022 (Cth) and the Fair Work (State Declarations - Employers not to be national system employers) Endorsement 2022 No.1) (Cth). Additionally, complementary State Regulations, in Part 4 of the Industrial Relations Regulations (Consequential Amendment) Regulations 2022 (WA), amended the Industrial Relations (General) Regulations 1997 (WA) to declare, for the purposes of s 80A(2) of the Industrial Relations Act 1979 (WA), that local government employers are not to be national system employers under the Fair Work Act 2009 (Cth).

The effect of the new Part 2AA of the Act, in particular s 80BB, is to create an industrial instrument, known as a 'new State instrument', where immediately prior to the commencement day, an instrument made under the FW Act, applied to 'a declared employer and a declared employee'. The latter are employers and employees in local government, subject to the above transitional instruments.

Upon commencement of the legislation, an award or enterprise agreement made under the FW Act became, under s 80BB(2), an 'industrial agreement', described as a new State instrument and 'applied' to a declared employer and employees. Section 80BB is in the following terms:

(a) to the extent section 80BA does not provide for a declared employee of a declared employer; and

(b) if, immediately before the relevant day, a federal industrial instrument (the old federal instrument) applies to, or purports to apply to, the declared employee.

(2) On the relevant day, an industrial agreement (the new State instrument) applies to the declared employer and declared employees.

(a) to have been registered under this Act on the relevant day; and

(b) except as provided in this section or section 80BC, to have the same terms as the old federal instrument including those terms as added to or modified by any of the following -

(i) terms of a federal award incorporated by the old federal instrument;

(iii) another instrument under the national fair work legislation or the repealed Workplace Act;

(c) to have a nominal expiry date that is the earlier of the following -

(ii) the day that, immediately before the relevant day, was the nominal expiry day of the old federal instrument.

(4) This Act applies in relation to the new State instrument subject to any modifications or exclusions prescribed by regulations for this subsection.

(5) The new State instrument applies except as provided in the MCE Act.

1. The LGIA is a modern award made under the Fair Work Act 2009 (Cth) (FWA). In accordance with s 48 and s 143 of the FWA and clause 4 of the LGIA, it covers employers throughout Australia in the local government industry and their employees in the classifications set out in the LGIA.
2. Under the FWA, a person may be covered by a modern award, but the modern award does not impose obligations or confer entitlements unless the modern award also applies to the person: s 46. A modern award applies to an employer when it meets the conditions in s 47 of the FWA. The effect of that section is that where an enterprise agreement is in operation in respect of an employer and employee, the modern award ceases to apply.
3. It is uncontentious that as part of the local government transition to the State system, the LGIA as a modern award under the FWA, ceased to apply to any Western Australian local governments and their employees. It is also uncontentious that the terms of the LGIA as at 1 January 2023 continued to apply to those employers and employees to whom it had applied immediately before 1 January 2023, pursuant to s 80BB of the IR Act.

New State instruments under Part 2AA of the IR Act

1. Section 80BB, which is reproduced at paragraph 5 above, is located within Part 2AA of the IR Act. Part 2AA is headed 'Employers declared not to be national system employers'. As extensive reference is made to the provisions of Part 2AA in these reasons, the entire part is reproduced as Schedule 1 to these reasons for ease of reference.

1. WASU's position is that, as it concerns the LGIA as a federal instrument, s 80BB creates one new State instrument temporarily applying collectively to Western Australian local governments to whom the LGIA applied, or purported to apply, immediately before 1 January 2023. WASU calls this instrument 'the Local Government Industry Award 2020 Industrial Agreement'.
2. The Shire of Dundas' position is that s 80BB results in each individual declared employer who has declared employees to whom the LGIA applied immediately prior to 1 January 2023 having their own industrial agreement by way of a new State instrument with the same terms as the LGIA. That is, there exists multiple single employer new State instruments each of which has the same terms as the LGIA.
3. The majority of the other local government respondents adopted the same position as the Shire of Dundas in this regard. To streamline the determination of the preliminary issue, only the Shire of Dundas and the Shire of East Pilbara (together referred to as Shires) made submissions and took part in the hearing of the preliminary issue.
4. A handful of the respondents have not responded to or taken part in the proceedings or adopted a position in relation to the preliminary issue.

1. The Honourable Minister for Industrial Relations gave notice of her intention, by the leave of the Commission, to intervene on behalf of the State in relation to the preliminary issue pursuant to s 30 of the IR Act.
2. The Minister's application was unopposed.
3. At the hearing of the preliminary issue, I granted the Minister leave to intervene insofar as it relates to the determination of the preliminary issue. These are my reasons for doing so.
4. The Minister's application for leave to intervene was made on the ground that the State has an interest in the proper construction of s 80BB(2) of the IR Act in the context of the matter before the Commission. Counsel for the Minister noted that in City of Cockburn at [13], the Full Bench of the Commission accepted that the Minister's interest in the proper construction and application of a section of the IR Act is an adequate interest for the purposes of an intervention application.
5. The Minister filed written submissions on the preliminary issue prior to the hearing and pointed out that these proposed submissions were not merely repetitive of submissions made by the other parties. Therefore, granting the Minister leave to intervene would have some utility.
6. Section 30 of the IR Act says:

(1) The Minister may, by giving the Registrar notice in writing of the Minister's intention to do so, and by leave of the Commission, intervene on behalf of the State in any proceedings before the Commission in which the state has an interest.

1. Section 30 has been contrasted with the Commission's power under s 27(1)(k) enabling the Commission to permit intervention by a person who has, in the opinion of the Commission, sufficient interest in a matter.
2. Section 30 appears to create a lower threshold for leave when it concerns the State. It may be that the test of a sufficient interest as articulated in Re Ludeke; Ex parte Customs Officers Association of Australia, Fourth Division [1985] HCA 31; (1985) 155 CLR 513 is not intended to apply for the purpose of s 30 of the IR Act.
3. Consistent with the observations of the Full Bench in City of Cockburn, it is clear that the State has an interest in the construction and application of the IR Act and accordingly leave should be granted for the Minister to exercise her right under s 30 of the IR Act to intervene on behalf of the State.

1. Counsel for WASU pointed out that the present issue is novel. It is unique to the circumstances of the change from the federal to State system and unique to the particular type of federal industrial instrument concerned. For the vast majority of federal industrial instruments that have transitioned to the State system under Part 2AA of the IR Act, being enterprise agreements, the issue does not arise. That is because an enterprise agreement self-evidently applies only to a single enterprise.
2. It is clear enough that the nature of the instrument created as a new State instrument under Part 2AA is to be treated as if it were an industrial agreement under the IR Act rather than an award. However, the reality is that the LGIA is neither the product of a bargain between an employer and a union or collective of employees, nor is it an instrument that applies at an enterprise level. It is therefore ill-suited to be treated as an industrial agreement under the IR Act.
3. WASU noted that s 80BB(4) makes it clear that the whole of the IR Act was intended to operate without modification in relation to new State instruments. There are no regulations prescribed for the purposes of s 80BB(4) creating exclusions in this regard.
4. WASU submits that what flows from this supports its construction of s 80BB. Part of the scheme of the IR Act is that an industrial agreement cannot exist without there being two or more parties to it. WASU refers in this regard to the Full Bench's decision in The Australian Rail, Tram and Bus Industry Union of Employees, Western Australian Branch v Western Australian Government Railways Commission (2000) 80 WAIG 1740 (RTBU) at [12]:

In the Western Australian Industrial Gazette dated 22 December 1999 (79 WAIG 3708), the Registrar published the appropriate Notice of Retirement by the abovenamed organisation dated 12 November 1999.

As a result, by the operation of s 41(6) and (7) of the Act, the applicant organisation retired from the Agreement, ceasing to be a party to the Agreement. The Agreement could, therefore, continue in force in respect of only one party thereto. Such a proposition is, however, absurd.

It is trite to say that an agreement cannot exist or continue, unless two or more parties have and remain bound by an agreement. In this case, the applicant, since there were only two parties to the Agreement, by exercising a statutory right to retire, exercised coincidentally a right to terminate the Agreement by the retirement, as and from the date specified in the Notice of Retirement.

1. According to WASU, this means that the LGIA must become a new State instrument with multiple local government parties in order for it to exist. There is no union or employee association party to the LGIA. A new State instrument with only a single local government employer as party to it cannot exist as an industrial agreement under the IR Act.
2. WASU's counsel acknowledged that the concept of having an industrial agreement without a union party is also an anomaly which is inconsistent with the scheme of the IR Act. However, this anomaly was contemplated by the legislature and dealt with by enacting s 80BH which enables an organisation of employees or an association of employees to apply for an order naming the organisation or association as a party to a new State instrument.
3. In short, WASU submits that its construction of s 80BB sits more harmoniously with the IR Act's scheme, because it means that the LGIA became a new State instrument with two or more parties consistent with the nature of industrial agreements under the IR Act.
4. The second main theme of WASU's submissions draws support for its conclusion based on s 80BB(3)(b) read with the coverage clause 4.1 of the LGIA. By s 80BB(3)(b), a new State instrument is taken to have the same terms as the old federal instrument. The LGIA, being the relevant old federal instrument, says at cl 4.1:

This industry award covers employers throughout Australia in the local government industry and their employees in the classifications listed in Schedule A - Classification Definitions to the exclusion of any other modern award.

1. WASU says that the fact the new State instrument's terms are taken to include clause 4.1, means its terms are such that all employers in the local government industry are 'covered' by it, and therefore are parties to it. WASU says the Shires' alternative construction of s 80BB, cannot be reconciled with cl 4.1 because cl 4.1 does not expressly refer to a single individual employer. There cannot be both a new State instrument that applies only to the Shire of Dundas, and that new State instrument have a term that says it covers all employers in the local government industry.
2. WASU submits that the Shires' construction would require a rewrite of cl 4.1, which would conflict with s 80BB(3)(b)'s requirement to take the new State instrument as having the same terms as the LGIA.
3. Third, WASU makes the point that if the effect of s 80BB was to transform the single LGIA into numerous new State instruments, this is conceptually inconsistent with the purpose of s 80BB which is to uphold the continuity of the pre-existing industrial and employment arrangements, by splitting one instrument into multiple instruments. This purpose is expressed in the Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2021 at [335]:

[T]o provide declared employers and declared employees with continuity in their employment arrangements for an appropriate transitional period, to enable them to comply with the IR Act and other applicable state industrial laws.

1. Finally, WASU relies on the fact that only a single new State instrument containing the terms of the LGIA is maintained on the website www.wairc.wa.gov.au, rather than 60 or so versions for each individual local government.

1. The Shire of Dundas submitted that the words used in Part 2AA support a construction that a separate new State instrument is created for each individual local government that applied the LGIA immediately prior to the local government transition. It refers to the consistent use of the term 'declared employer' in the singular throughout the sections in Part 2AA. The Shire points out that in contrast, Part 2AA refers to the defined term 'declared employee' in both the singular and the plural.
2. The Shire of Dundas submits that it is individual local governments or employers that are referred to in the Industrial Relations (General) Regulations 1997 (WA) referenced in s 80A(2)(a). It is clearly contemplated by s 80A(2)(a) that individual employers are the subject of the declaration made by the Regulations rather than a category or cohort of employers or an industry generally.
3. The Shire of Dundas submitted that its construction is consistent with the objects of the IR Act and in particular the objects in s 6 which focus on the promotion of collective bargaining at the enterprise level to reach agreements that are appropriate to the needs of enterprises within each industry. A construction of s 80BB that makes the LGIA a new State instrument operating at a single enterprise level rather than a collective or industry level has greater alignment with these objects.
4. The Shire of Dundas also relies on the broader legislative context in support of its contended for construction. It points out that s 80A(1) expressly makes reference to s 14(2) of the FWA. Section 14(2) of the FWA says:

Particular employers declared not to be national system employers

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii) is a body established for a local government purpose by or under a law of a State or Territory; or

(iii) is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

1. Section 14(2) also refers to 'employer' in the singular contemplating individual named employers as being the subject of an endorsement from the federal Minister.
2. The Shire of Dundas says its construction is consistent with the purpose of s 80BB as stated in the Explanatory Memorandum, namely to provide declared employers and declared employees with continuity in their employment arrangements for a transitional period, to enable them to comply with the IR Act and other applicable state industrial laws.
3. Finally, the Shire of Dundas argues that WASU's contended for construction leads to impracticable and unintended results in practice such as:

1. Difficulty in determining which employers are party to a single, multi-employer new State instrument. 2. Uncertainty in relation to the impact of a party's retirement from a multi-employer new State instrument for the ongoing operation of the new State instrument particularly if it is the union party that retires from it: s 41(7) of the IR Act.

1. Difficulties in dealing with applications to vary a multi-employer new State instrument, and in particular variations designed to meet the needs of an employer or employees at an enterprise level: s 43 of the IR Act.

1. Difficulty in the application of the provisions of s 41(8) the IR Act concerning the replacement and cancellation of industrial agreements by the making of a subsequent agreement. 2. Prevention of the possibility of a union retiring from the new State instrument in respect of a particular enterprise where union members at that enterprise want the union to retire from the agreement but in circumstances where union members in other enterprises do not want the union to retire from it. 1. If there is a single multi-employer new State instrument, then any union that has coverage of at least one employee across multiple local government employers may apply to be named as a party to it under s 80BH even if no employees at other local governments are eligible to be members of that union. The union would then have standing to enforce the new State instrument in respect of a declared local government employer even if that local government employer has no employees who are eligible for membership of that union.
2. The Shire of East Pilbara's submissions supplemented the Shire of Dundas' submissions. Its submissions emphasised the difference in the nature of a modern award such as the LGIA under the FWA and an industrial agreement under the IR Act. It noted that if parliament intended for the LGIA to operate in a similar way to a federal award under the FWA it could have:

a) drafted the transitional provisions at Part 2AA to differentiate between new State instruments which were enterprise agreements and those which were modern awards under the FWA or;

Parliament chose not to make any distinction, but to instead have all old federal instruments operate in the same way as new State instruments.

1. The Minister submits that Part 2AA must be construed in the broader legislative context. In Part 2AA of the IR Act, s 80A provides the mechanism under Western Australian law for declaring an employer not to be a national system employer. But s 80A refers to, and relies on the operation of, s 14(2) of the FWA. The FWA is therefore relevant legislative context.
2. Section 14(2) of the FWA provides for three categories of employers that may be the subject of a declaration:

1. Bodies established for a public purpose by or under a law of a State; 2. Local governments; and

1. Wholly-owned subsidiaries of local governments.
2. As indicated above, s 14(2) of the FWA enables 'a particular employer' to be declared not to be a national system employer for the purposes of the FWA, if that employer is specifically declared by or under a law of the State not to be a national system employer for the purposes of the FWA.
3. Section 14(3) of the FWA provides that a declaration under s 14(2)(b) 'does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer'.
4. Section 14(4)(a) of the FWA says the federal Minister may endorse, 'in relation to an employer' a declaration referred to in s 14(2)(b).
5. Read together, these provisions mean, in effect, that each particular employer who is to be declared not a national system employer must be specifically named.
6. The Minister points out that under this scheme there may be different regulations made at different times declaring an employer or employers not to be a national system employer for the purposes of the FWA and so there may be different relevant days for each of those declarations.
7. Regulation 7 of the Regulations was made under s 80A(2) of the IR Act declaring employers not be national system employers for the purpose of the FWA. The Minister says that while currently reg 7 only declares a number of individual local government employers not to be national system employers, in theory a regulation could also provide for other types of employers specified in s 14(2)(a) of the FWA not to be national system employers for the purposes of the FWA.
8. Within this broader legislative context it is natural and unsurprising that Part 2AA refers to 'declared employer' in the singular. The legislative scheme reveals an intention that a single named employer be a declared employer. The scheme deliberately does not permit for categories or classes of employers to be declared employers.
9. The Minister submits that this apparent intention defeats the application of the rule in s 10(c) of the Interpretation Act 1984 (WA) whereby words in the singular number include the plural.
10. Like the Shires, the Minister points to other provisions in the IR Act concerning industrial agreements which she says are consistent with the concept that a new State instrument, which is taken to be an industrial agreement, has a single named employer as party to it. Sections 41, 80BC and 80BG of the IR Act are each referred to.
11. Finally, the Minister notes that s 80BB is a deeming provision. It deems the existence of an industrial agreement and thereby creates a statutory fiction because a federally registered enterprise agreement or a federal award is not in fact an industrial agreement under the IR Act, except for the deeming provision.
12. Because s 80BB is a deeming provision, some modification of the terms of the LGIA is acceptable and not, as WASU argues, indicative of an intention that the new State instrument be a multi-employer instrument. The Minister refers to East West Airlines Ltd v Turner [2010] NSWCA 53; (2010) 78 NSWLR 1 (Turner) at [52] in which Justice Hoeben referring to a statement of Lord Asquith in East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109 at 132 said:

[I]f you were bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.

In other words, when confronted with a fiction imposed by a statute, the court or tribunal has to determine its incidents. See also: Valuer-General of New South Wales v In Adam Pty Ltd [2012] NSWCA 20; (2012) 211 LGERA 75 at [25].

1. Similarly, the fact that a new State instrument might not in fact have at least two parties does not advance WASU's construction either. The principle in Turner means that the new State instrument is to be treated as having at least two parties, even if it in fact does not. It is to be treated as a valid industrial agreement.

1. 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: Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]. The principles were recently summarised by the Court of Appeal in Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 at [202]- [208] (citations omitted):

The context includes the legislative history and extrinsic materials.

At common law, apart from any reliance upon s 19 of the Interpretation Act 1984 (WA), a court may have regard to reports of law reform bodies to ascertain the mischief which a statutory provision is intended to remedy.

However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself.

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. 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.

Recently, in ENT19 v Minister for Home Affairs, Gordon, Edelman, Steward and Gleeson JJ made these observations:

The context of the words, consideration of the consequences of adopting a provision's literal meaning, the purpose of the statute and principles of construction may lead a court to adopt a construction that departs from the literal meaning of the words of a provision. One such principle is that legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. As expressed by Gageler J in SAS Trustee Corporation v Miles, 'statutory text must be considered from the outset in context and attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means'. Where conflict appears to arise in construing an Act, 'the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions', and this 'will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other"'. Ultimately, the task in applying the accepted principles of statutory construction is to discern what Parliament is to be taken to have intended.

Section 18 of the Interpretation Act provides that, in the interpretation of a provision of a written law (defined in s 5 as 'all Acts for the time being in force'), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects.

The function of a definition in a statute is not, except in rare cases, to enact substantive law. Rather, its function is to provide aid in construing the substantive enactment that contains the defined term. The meaning of the definition depends on the context, and the purpose or object, of the substantive enactment.

1. These principles mean that context should be considered at the first stage and in its widest sense: SZTZAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]. Context may encompass the structure of the Act and surrounding provisions.

1. Section 80BB clearly expresses that a new State instrument that applies to the declared employer and declared employees is 'an industrial agreement'. The section's purpose is to give an old federal instrument status as an industrial instrument under the Act. Therefore, the key to resolving the current construction issue involves finding the way that the new State instrument may most harmoniously operate as an industrial instrument within the scheme of the IR Act.
2. WASU has identified one way that a single employer new State instrument could be seen as disharmonious with the IR Act's scheme for industrial agreements, namely, by having an insufficient number of parties, contrary to the statement of the Full Bench in RTBU.
3. Industrial agreements under the IR Act are made pursuant s 41. It says:

(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 organisation or association of employees and any employer or organisation 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 -

(i) in any calling mentioned in the industrial agreement in the industry or industries to which the industrial agreement applies; and

(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;

(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.

(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.

(7) At any time after, or not more than 30 days before, the expiry of an industrial agreement any party to the agreement may file in the office of the Registrar a notice in the approved form signifying the party's intention to retire from the agreement at the expiration of 30 days from the date of the filing, and, on the expiration of that period, the party ceases to be a party to the agreement.

(8) When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (the first agreement), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.

(9) To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise.

1. The reality that an old federal instrument may not have parties as required by s 41 is not unique to federal modern awards. Federal enterprise agreements can also be made without naming an employee organisation as party. WASU has not suggested that an enterprise agreement that does not have two or more parties cannot exist as a new State instrument. Rather, WASU appears to have accepted that such instruments can exist as new State instruments, as it applied under s 80BH to be named as a party to several of them. See for example: Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Gosnells & Ors [2024] WAIRC 00422; Western Australian Municipal, Administrative, Clerical and Services Union of Employees v Shire of Northampton [2024] WAIRC 00459; Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Swan & Ors [2024] WAIRC 00463; Western Australian Municipal, Administrative, Clerical and Services Union of Employees v City of Bunbury & Ors [2024] WAIRC 00443.
2. This reality is reflected in the words used in Part 2AA and s 80BB in particular. Section 80BB is expressed in terms of a new State instrument 'applying' to a declared employer and declared employees. It does not refer to the declared employer being a 'party' to a new State instrument. Section 80BC provides for 'a declared employer, a declared employee or an organisation' to apply to amend a new State instrument. It does not refer to a 'party' being able to apply to amend a new State instrument. Indeed, nowhere in Part 2AA is there any description of an employer by reference to being a 'party' to a new State instrument.
3. One of the reasons that parliament may have chosen to express new State instruments as applying to declared employers, rather than specifying that declared employers are a party to new State instruments, may be to disqualify a declared employer from exercising the right of a party to retire from a new State instrument under s 41(7) of the IR Act, on the basis that to do so would be contrary to Part 2AA's purpose of providing continuity in terms and conditions of employment.
4. Section 80BH permits an organisation of employees or an association of employees to apply for an order 'naming' it as 'a party' to a new State instrument. There is no provision in Part 2AA for a declared employer to apply to be named as a party to a new State instrument. Because s 80BB(2) says that the new State instrument applies to the declared employer, and s 80BC permits 'a declared employer, a declared employee or an organisation' to apply to amend a new State instrument, there is practically no need for an employer to be named as a party to a new State instrument. An industrial agreement can be enforced under, by and against 'an employer bound by it': s 83(1)d) of the IR Act. It is not necessary that the employer be a named party to the new State instrument for it to operate.
5. Section 80BH does not mandate that an organisation of employees or association of employees must apply for an order to be named a party to a new State instrument. Any such application is optional and voluntary. If no application is made, the new State instrument remains operative.
6. In this light, s 80BH cannot be characterised as being intended to cure the anomaly that a new State instrument does not have a union party, as required by s 41 of the IR Act. Rather, it would appear that s 80BH's purpose is to enable a union to acquire the status of a party for the purpose of enforcement, if the new State instrument applies to employees who are eligible for membership of the union and the union wants to acquire that status.
7. Accordingly, the disharmony, or anomaly, of a new State instrument existing without two or more parties is not, in my view, a compelling indication of either s 80BH's purpose or the preferable construction of s 80BB. If anything, it is a core feature of old federal instruments which s 80BB's deeming effect operates on.
8. In any event, this disharmony is outweighed by the greater disharmony created by WASU's contended for construction. For instance, section 41(8) says:

When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (the first agreement), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.

1. If the LGIA became a collective, multi-employer new State instrument, and a new industrial agreement is made in respect of one local government pursuant to s 41 of the IR Act, the registration of the new industrial agreement would be taken to cancel the new State instrument, even though the new industrial agreement relates only to one local government and its employees.
2. The concept of a collective, multi-employer new State instrument is disharmonious with the ability in s 80BC for 'a declared employer, a declared employee or an organisation' to apply to amend a new State instrument, and for such amendments to be made if the Commission is satisfied 'it is fair and reasonable to do so in the circumstances'. It is difficult to envisage how the Commission could ever be satisfied as to the fairness and reasonableness of a proposed amendment, without hearing from or considering the position of every employer and employee to whom the new State instrument applied. The difficulty of meeting the test means such applications would be rare, and success rarer. This is in a context where new State instruments are a form of transitional instrument applying temporarily. It is unlikely the parliament intended to include a mechanism for amendment of new State instruments, with temporary application, for the mechanism to be practically prohibitive.
3. A practical consequence of adopting WASU's contended for construction is that it would be very difficult to identify precisely which employers (and therefore which employees) the new State instrument applies to. There are 137 local governments (and 8 regional local governments) that are declared employers listed in Schedule 4 of the Regulations. WASU have named some 60 local governments as respondents to these proceedings, implicitly accepting that the LGIA did not apply to all 137 local governments immediately prior to 1 January 2023. But there is nothing in the IR Act or the Regulations which gives any clue as to which of the 137 local governments the LGIA applied to prior to 1 January 2023.
4. If s 80BB creates a single, multi-employer new State instrument, but ascertaining who it applies to is difficult, it follows that it will also be difficult to implement many of the IR Act's provisions that apply to industrial agreements.
5. Other examples of disharmony created by the concept of a collective, multi-employer new State instrument were identified by the Shire of Dundas and the Minister, as set out above.
6. The broader legislative context supports the view that s 80BB of the IR Act creates separate new State instruments for each individual declared employer. Section 80A expressly refers to s 14(2) of the FW Act. Also, the heading to Part 2AA is in language that replicates precisely the language used in s 14 about employers being declared not to be national system employers. Part 2AA can only operate in conjunction with s 14 of the FWA.
7. Section 14(2) of the FWA refers to 'a particular employer' as not being a national system employer when that employer meets the criteria in s 14(2). It is clear for the reasons articulated by the Shire of Dundas and the Minister, that the subject of s 14(2) is an individual, named employer. A 'declared employer' is, necessarily, also an individual named employer.
8. As the Minister's counsel identified, s 14(3) of the FWA precludes a declaration having effect in respect to an employer only because the employer is included in a specified class or kind of employer. Also, it is theoretically possible under s 80A of the IR Act that different employers will be declared by regulations not to be national system employers at different times and additionally or alternatively with different days fixed as being the 'relevant day' for the purpose of the declaration. Section 80BB of the IR Act provides for a new State instrument to be created 'on the relevant day'. This theoretical possibility demonstrates why there must be separate new State instruments.
9. The legislative framework that supports the operation of Part 2AA treats declared employers singularly and separately. New State instruments being singular and separate in respect of individual declared employers provides consistency with this framework and harmony with the sense in which the term 'declared employer' is used in the statutory provisions.
10. This construction is also consistent with the IR Act's objects in sections 6(ad) and 6(ag):

[T]to promote collective bargaining and to establish the primacy of collective agreements over individual agreements; and

[T]o encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises within industry and the employees in those enterprises.

1. On WASU's construction, the created new State instrument is unconnected to individual enterprises and therefore has no function in advancing enterprise level collective bargaining. On the Shires' construction, a new State instrument exists for individual enterprises and so plays a role in advancing these objects because:

1. It gives effect to the ability to initiate bargaining at an enterprise level as contemplated by s 42 of the IR Act; 2. It gives effect to the ability to vary, renew or cancel the new State instrument to meet the needs of an enterprise by agreement under s 43(1) of the IR Act;

1. It gives effect to the ability to vary the new State instrument to meet the needs of an enterprise under s 43(2) of the IR Act.
2. I am unpersuaded by WASU's reliance on the coverage clause of the LGIA as support for its construction. First, the LGIA is not material of a kind that is listed in s 19(2) of the Interpretation Act. In any event, the LGIA is only one of many federal industrial instruments which are impacted by s 80BB of the IR Act. The LGIA cannot, in isolation, provide useful context to assist in understanding the purpose of s 80BB. If resort is had to the LGIA as extrinsic material, resort would also need to be had to every other federal instrument which existed at the time s 80BB was enacted, to which s 80BB might apply.
3. Second, the words in cl 4.1, which WASU relies on, do not mean that the LGIA covers the multiple local governments who are respondents to WASU's application. Clause 4.1 of the LGIA cannot be read in isolation. Clause 2 of the LGIA defines 'employer' to mean a national system employer within the meaning of the FWA. The respondents are no longer national system employers.
4. Third, the coverage clause must be read and understood in the context of s 46 of the FWA. Coverage is only one prerequisite for a modern award applying to an employer and its employees. It is not determinative of which employers are bound by the LGIA.
5. The coverage clause of the LGIA cannot sensibly be given meaning or effect as part of a new State instrument, whether the new State instrument is a separate new State instrument for a single employer, or a single collective multi-employer new State instrument. It could be said that this sits uneasily with s 80BB's demand that the new State instrument be taken to have the same terms as the old federal instrument. However, it does not, as WASU submits, impermissibly require the old federal instrument be rewritten. Section 80BB of the IR Act itself is the source of a new State instrument's application and binding effect.
6. Nor do I place any weight on the manner in which the website displays the LGIA as an industrial agreement. The Department of the Registrar of the Western Australian Industrial Relations Commission maintains a webpage of 'current industrial agreements'. It displays the Local Government Industry Award 2020 as a new State instrument in force from 1 January 2023, on a single page, with a single hyperlink, accompanied by the usual disclaimer that the document should be used as a guide only.
7. WASU's counsel did not articulate why the principles of statutory construction permit resort to the Department's website, and in particular pages created after the statute's enactment, as an aid to the construction of s 80BB of the IR Act. I decline to have regard to this material.

1. For these reasons, I consider that on a correct construction a 'new State instrument' referred to in s 80BB of the IR Act is an instrument which applies to an individual declared employer and not to a collective of multiple declared employers.
2. Accordingly, applying the correct construction of s 80BB, a separate new State instrument is created for each individual local government to whom the LGIA applied, or purported to apply, immediately prior to the local government transition.
3. The consequence of this conclusion is that WASU's application under s 80BH for an order naming it as party to a single multi-employer new State instrument called the Local Government Industrial Award 2020 Industrial Agreement is misconceived. No such new State instrument exists and no such order can be made.
4. To exercise the ability to apply for an order naming it as a party to a new State instrument under s 80BH of the IR Act, WASU will need to apply in respect of each separate new State instrument created under s 80BB which has the terms of the LGIA.
5. I will hear from the parties as to what orders should follow from this determination.

Schedule 1 - Extract of Part 2AA of the Industrial Relations Act 1979 (WA)

Part 2AA - Employers declared not to be national system employers

[Heading inserted: No. 30 of 2021 s. 38.]

80A. Employers declared not to be national system employers

(1) This section applies to an employer who, under the FW Act section 14(2), may be declared by or under a law of the State not to be a national system employer.

(a) declare the employer not to be a national system employer for the purposes of the FW Act; and

(b) fix a day (the relevant day) for the purposes of that declaration.

Division 2 - Change from federal to State system

declared employee means a person employed by a declared employer;

declared employer means an employer declared not to be a national system employer in regulations under

(b) an award under the repealed Workplace Act continued in existence under the FW (Transitional) Act;

(a) the Australian Industrial Relations Commission under the repealed Workplace Act; or

federal industrial instrument means a fair work instrument under the FW Act;

new State instrument has the meaning given in section 80BB(2);

old federal instrument has the meaning given in section 80BB(1)(b);

relevant day has the meaning given in section 80A(2)(b);

repealed Workplace Act means the Workplace Relations Act 1996 (Commonwealth);

terms includes conditions, restrictions and other provisions.

[Section 80B inserted: No. 30 of 2021 s. 38.]

80BA. Operation of awards, industrial agreements or orders

(1) The regulations may provide that, on and from the relevant day, an award, industrial agreement or order specified in the regulations applies to the employees of a declared employer specified in the regulations.

(2) If regulations are made under subsection (1), on and from the relevant day the award, industrial agreement or order applies to each of the following -

(b) the declared employees of the declared employer;

(c) an organisation that is a party to the award or industrial agreement or that is bound by the order.

(a) to the extent section 80BA does not provide for a declared employee of a declared employer; and

(b) if, immediately before the relevant day, a federal industrial instrument (the old federal instrument) applies to, or purports to apply to, the declared employee.

(2) On the relevant day, an industrial agreement (the new State instrument) applies to the declared employer and declared employees.

(a) to have been registered under this Act on the relevant day; and

(b) except as provided in this section or section 80BC, to have the same terms as the old federal instrument including those terms as added to or modified by any of the following -

(i) terms of a federal award incorporated by the old federal instrument;

(iii) another instrument under the national fair work legislation or the repealed Workplace Act;

(c) to have a nominal expiry date that is the earlier of the following -

(ii) the day that, immediately before the relevant day, was the nominal expiry day of the old federal instrument.

(1) This Act applies in relation to the new State instrument subject to any modifications or exclusions prescribed by regulations for this subsection.

(2) The new State instrument applies except as provided in the MCE Act.

(1) A declared employer, a declared employee or an organisation may apply to the Commission to amend a new State instrument.

(2) On the application, the Commission may make the amendment if it is satisfied it is fair and reasonable to do so in the circumstances.

(3) The amendment may be provided to take effect -

(b) progressively, in stages specified in the amendment.

The Commission may, in connection with the operation of this Part, or any matter arising directly or indirectly out of the operation of this Part -

(a) accept, recognise, adopt or rely on any step taken under, or for, the national fair work legislation; and

(b) accept or rely on anything (including in the nature of evidence presented for the purpose of any proceedings) that has been presented, filed or provided under, or for, the national fair work legislation; and

(c) give effect in any other way to any other thing done under, or for, the national fair work legislation.

80BE. References in new State instruments to federal industrial authority and General Manager

General Manager means the General Manager under the FW Act.

(2) On and from the relevant day, a term of a new State instrument expressed to confer a power or function on a federal industrial authority has effect as if it conferred the power or function on the Commission.

(3) On and from the relevant day, a term of a new State instrument expressed to confer a power or function on the General Manager has effect as if it conferred the power or function on the Registrar.

80BF. References in new State instruments to provisions of Commonwealth laws

corresponding provision of this Act, to a provision of the FW Act, means -

(a) if paragraph (b) does not apply - a provision of this Act that is of similar effect to the provision of the FW Act; or

(b) a provision of this Act declared by regulations to be a corresponding provision.

(2) On and from the relevant day, a term of a new State instrument expressed to refer to a provision of the FW Act is taken to refer to the corresponding provision of this Act.

80BG. References in new State instruments to federal organisations

federal counterpart has the meaning given in the FW (Registered Organisations) Act section 9A.

(2) On and from the relevant day, a term of a new State instrument expressed to refer to a federal organisation is taken to refer to an organisation under this Act of which the federal organisation is a federal counterpart.

(3) If the federal organisation is not a federal counterpart of an organisation under this Act, the federal organisation is taken to be an organisation under this Act representing the declared employees of the relevant declared employer in proceedings or other matters arising under this Act.

(4) Subsection (3) ceases to apply to the federal organisation when the new State instrument ceases to apply to the relevant declared employer and declared employees.

(1) An organisation of employees or an association of employees may apply to the Commission to make an order naming the organisation or association as a party to a new State instrument.

(2) On the application, the Commission must grant the order if, in the opinion of the Commission, the instrument applies to an employee who is eligible to be a member of the organisation or association.

[Section 80BH inserted: No. 30 of 2021 s. 38; amended: No. 43

(1) Subsection (2) applies in relation to deciding the entitlements of a declared employee under a new State instrument.

(2) Employment of the declared employee with a declared employer before the relevant day that counted under the old federal instrument also counts as employment of the declared employee with the declared employer under the new State instrument.

(3) If, before the relevant day, the declared employee has already had the benefit of an entitlement determined by reference to a period of service, the period of service cannot be counted again under subsection (2) for calculating the declared employee's entitlements of that type under the new State instrument.

80BJ. Leave accrued immediately before relevant day

(1) This section applies to any paid or unpaid leave accrued under an old federal instrument, the national fair work legislation or a law of this State.

(2) Leave accrued immediately before the relevant day by a declared employee to whom a new State instrument applies is taken to have accrued under the new State instrument.

(1) A declared employee who was, immediately before the relevant day, taking a period of leave under the old federal instrument or under the FW Act is entitled to continue on that leave under the new State instrument or a law of this State for the remainder of the period.

(2) A declared employee who has, before the relevant day, taken a step under the old federal instrument or the FW Act that the employee is required to take so the employee can, on and from the relevant day, take a period of leave under the old federal instrument or the FW Act, is taken to have taken the step under the new State instrument or a law of this State.

(3) The regulations may deal with other matters relating to how a new State instrument applies to leave that, immediately before the relevant day, is being, or is to be, taken by a declared employee under the old federal instrument or the FW Act.

[Part IIA: s. 80C-80S deleted: No. 43 of 2024 s. 57;

Fourth Respondent Eastern Metropolitan Regional Council

Forty-Eighth Respondent Shire of Serpentine-Jarrahdale

Fifty-Ninth Respondent Western Metropolitan Regional Council