2026 WAIRC 00891
INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA


CITATION
:
2026 WAIRC 00891



CORAM
:
INDUSTRIAL MAGISTRATE D. SCADDAN



HEARD
:
THURSDAY, 17 SEPTEMBER 2026, FRIDAY, 18 SEPTEMBER 2026



DELIVERED
:
FRIDAY, 18 SEPTEMBER 2026



FILE NO.
:
M 122 OF 2026



BETWEEN
:
UNITED PROFESSIONAL FIREFIGHTERS UNION OF WESTERN AUSTRALIA


CLAIMANT





AND





FIRE AND EMERGENCY SERVICES COMMISSIONER OF THE DEPARTMENT OF FIRE AND EMERGENCY SERVICES


RESPONDENT

CatchWords : INDUSTRIAL LAW – Application for interim orders pursuant to s 83(5) and s 83(7) of the Industrial Relations Act 1979 (WA) – Whether there is a serious issue to be tried – Whether there is a prima facie case of a contravention of cl 11(5) of the Western Australian Fire Services Enterprise Bargaining Agreement 2023 – Whether there is a prima facie case that the interim orders sought are for the purpose of preventing any further contravention or failure to comply with cl 11(5) – Power to make the interim orders sought – Balance of convenience – Turns on own facts
Legislation : Industrial Relations Act 1979 (WA)
Instrument : Western Australian Fire Services Enterprise Bargaining Agreement 2023
Cases referred
to in reasons: : The Governing Council of North Metropolitan Tafe v State School Teachers’ Union of WA [2018] WAIRC 00746; (2018) 98 WAIG 1209
Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 01064; (2014) 94 WAIG 563
Result : Application for interim orders dismissed
Representation:
Claimant : Mr C. Fogliani (of counsel) and with him, Ms J. Skyner (of counsel)
Respondent : Mr J. Carroll (of counsel)



REASONS FOR DECISION
Given extemporaneously at the conclusion of the hearing, edited by her Honour for clarity of expression and to provide complete references.
1 This is an application made by the United Professional Firefighters Union of Western Australia (the claimant, or UFPU) for interim orders pursuant to s 83(5) and s 83(7) of the Industrial Relations Act 1979 (the Act) lodged in the Industrial Magistrates Court (Court) on 25 August 2026.
2 Specifically, the claimant seeks that until the hearing and determination of the claimant’s originating claim or until further order, the Fire and Emergency Services Commissioner of the Department of Fire and Emergency Services (the respondent) be:
(a) required to revert the structure of its Built Environment Branch (BEB) back to as it was immediately prior to the claimant raising its dispute about the restructure on 2 April 2026; and
(b) restrained from making any changes to the structure of the BEB (the Application).
3 The Application is supported by an affidavit of John Marsh (Mr Marsh) affirmed 19 August 2026 with annexures referred to therein.
4 The Application was served on the respondent, who opposes the orders sought in the Application. The respondent relies upon an affidavit of Teresa Anna Kurtis (Ms Kurtis) sworn on 10 September 2026 with annexures referred to therein.
5 Mr Marsh is the Secretary of the claimant.
6 Ms Kurtis is employed by the respondent as the Director of Legal Policy Compliance and Built Environment Branch.
7 The parties agree the Western Australian Fire Services Enterprise Bargaining Agreement 2023 (the EA) was registered in the Western Australian Industrial Relations Commission (WAIRC) on 6 December 2023 and was in operation at all material times in relation to the matters contained in the claimant’s originating claim.
Originating Claim
8 The originating claim was lodged in the Court on 13 August 2026 alleging the respondent failed to comply with the EA and sought orders that the respondent pay a penalty and to ‘revert the structure of the BEB back to as it was immediately prior to the UPFU raising the Dispute as pleaded in the Statement of Claim’. Statement of Claim [12.1].

9 The Statement of Claim pleads the following:
The Dispute
(a) On 2 April 2026, the claimant raised a dispute with the respondent regarding a proposal to restructure the BEB in a manner that would alter the BEB career pathway set out in cl 12(5) of the EA. Statement of Claim [4].

Restructure
(b) The claimant alleges the Dispute is at stage 5 of the dispute resolution procedure (DRP) in cl 11 of the EA and is before WAIRC in matters C 9 of 2026 (an application for a s 44 conference regarding the Dispute) and APPL 37 of 2026 (a s 46 application for a determination regarding the proper interpretation of cl 8 and 12(5) of the EA).
(c) On or around 29 July 2026, the respondent restructured the BEB by abolishing Building Fire Safety Officer (BFSO) and Senior Building Fire Safety Officer (SBFSO) positions within the BEB and creating new positions under the Public Sector CSA Agreement 2024 (Public Sector CSA) to assume those same duties. Employees previously in the BFSO and SBFSO positions were invited to apply for the new positions. The roles and responsibilities of the new positions are the same or substantially similar to the BFSO and SBFSO positions. Statement of Claim [5] – [7].

Contravention
(d) The claimant alleges that cl 11(5) of the EA requires the ‘status quo to remain in place’ until the Dispute is resolved in the WAIRC. Statement of Claim [8].

(e) The respondent’s act of restructuring the BEB as pleaded in paragraph 7 of the Statement of Claim while the Dispute remained on foot was in contravention of cl 11(5) of the EA. Statement of Claim [9].

Interim Order
(f) The claimant sought an interim order to revert the structure of the BEB back to as it was immediately prior to the Dispute being raised. Statement of Claim [11].

Final Orders Sought
(g) an order pursuant to s 83(5) of the Act requiring the respondent to revert the structure back to the BEB immediately before the Dispute being raised (being 2 April 2026); and
(h) an order pursuant to s 83(4) and s 83(4A) of the Act for the payment of a penalty.
10 Schedule I to these reasons outline the jurisdiction, practice and procedure of the Court.
Evidence
11 In summary, the combined evidence of Mr Marsh and Ms Kurtis reveals that the possible restructure of the BEB was the subject of at least two meetings in 2024 with a report prepared for the respondent recommending its restructure. The claimant was informed in December 2024 of the recommendation.
12 In March 2025, members of the claimant and members of the respondent met to discuss a functional review of the BEB.
13 In March 2026, the claimant was provided with a letter from Deputy Commissioner Melissa Paxton (DC Paxton) notifying it of the proposed restructure of the BEB and consultation timeframes and a new organisational chart. There was a meeting with members of the claimant and the respondent following this.
14 Employees in the BEB received a letter from DC Paxton in March 2026 informing them that their positions were proposed to be abolished. Mr Marsh also received the proposed restructure documents. Affidavit of John Marsh [17], JM-9 JM-14.

15 On 1 May 2026, the claimant provided formal feedback on the proposed restructure.
16 On 2 April 2026, Mr Marsh sent an email to Greg Walsh (Mr Walsh), an employee of the respondent, where Mr Marsh says he raised a dispute regarding a proposal by the respondent to restructure the BEB. Mr Marsh in his affidavit evidence refers to this as the ‘Dispute’. Affidavit of John Marsh [19].

17 There was ensuing correspondence between Mr Marsh and Mr Walsh, to which Mr Walsh ultimately stated that the claimant could refer the matter to the WAIRC. It did so.
18 Mr Marsh states that the restructure removes 14 BFSO positions and the District Officer Plans Assessment positions. He further states that there are currently six members that have been told their positions will be abolished and they must reapply for new positions under the Public Service CSA.
19 On 29 July 2026, Mr Marsh received a letter from DC Paxton informing him of the approved restructure of the BEB and a schedule of implementation (it also included other information such as role comparisons and job description forms).
20 Mr Marsh outlines his understanding of the BEB as restructured, which includes 26 Public Sector CSA positions and 12 EA positions.
21 The claimant believes that the respondent is required to maintain the status quo in relation to the BEB as it stood immediately before 2 April 2026 until the Dispute is resolved in the WAIRC.
22 Mr Marsh states that:
(a) six members have been informed that their existing positions have been abolished and that they are required to reapply for Public Service CSA positions, of which there are fewer than six relevant positions;
(b) at least two members are expected to lose their employment as a result of the restructuring; and
(c) the claimant will no longer have coverage of the Public Service CSA positions, as those positions are outside the claimant’s membership. As a result, the claimant will lose members, which will have a corresponding financial impact on the claimant. Affidavit of John Marsh [5].

23 Mr Marsh states that these proceedings (M 122 of 2026) are not about resolving the Dispute, it is about the enforcement of the status quo requirement in cl 11(5) of the EA while the Dispute is continuing through the DRP in cl 11(7) of the EA. Affidavit of John Marsh [7].

24 Ms Kurtis deposes to the same letter dated 29 July 2026, referred to by Mr Marsh, and outlines the steps taken to begin implementing the new structure. I do not propose to detail the steps taken in full, but there was a short consultation process involving the employees affected by the restructure process.
25 Ms Kurtis also deposed to an employee raising concerns with her if he did not follow the claimant’s advice (whatever it might have been), resulting in a further meeting with the affected employees. Ms Kurtis deposes to an email from Mr Marsh informing her that ‘staff’ were not going to apply for jobs under the new structure.
26 On 31 July 2026, via a quarantine process, certain jobs were advertised and interviews were conducted on 20 August 2026. Ms Kurtis deposes to one affected employee not applying for a position in the restructure. Affidavit of Teresa Anna Kurtis [10(g)].

27 On 26 August 2026, the affected employees were notified of the outcome and that the outcome was subject to a four-day breach period, which concluded on 31 August 2026. No breach claims were made and two of the affected employees were offered positions in the new structure.
28 Initially the two successful employees had intended to accept the positions, which are at a level higher than what they were within the old structure and there is a ‘clear pathway’ for progression. Affidavit of Teresa Anna Kurtis [10(f)].

29 Ms Kurtis deposes to the claimant exercising a right of entry discussing each employees’ outcome in an open forum, following which one of the successful applicants withdrew and requested that her position be abolished.
30 On 3 September 2026, letters offering voluntary severance were issued to three of the affected employees, which required a response by 1 October 2026.
31 The BFSO and SBFSO positions were abolished on 29 July 2026.
32 The respondent must work with affected employees to support redeployment before considering redundancy options. Some of the affected employees have obtained alternative positions. If redeployment is unsuccessful, voluntary severance may be considered for registrable employees.
The Power Under s 83 of the Act
33 For expediency reasons, I have adopted the reasoning of Smith AP in The Governing Council of North Metropolitan Tafe v State School Teachers’ Union of WA [2018] WAIRC 746; (2018) 98 WAIG 1209:
Section 83 confers jurisdiction on the [Court] to enforce instruments, including an industrial agreement. The power to enforce under s 83 is not a power at large to resolve disputes between parties. It is notable that proceedings instituted by way of an originating claim are penal in nature; that is they are claims for civil enforcement of provisions of instruments by primarily the imposition of a penalty.
The mere filing of a discrete application for an interim order does not have the effect at law of the creation of a substantive application. An application for an interim order under s 83(7) cannot be made unless a substantive application has been instituted under s 83(1).
…
The power conferred by s 83 is not a power to resolve industrial disputes arising out of an industrial matter. The power to do so is conferred on the [Commission] pursuant to its powers and s 23(1) to enquire into and deal with any industrial matter.
The primary purpose of s 83 is two-fold. Firstly, its function is to coerce and ensure compliance with an instrument by providing for the imposition of penalties as a means of deterrence. Secondly, s 83 provides the means by which sanctions can be imposed on a person who contravenes or fails to comply with an instrument.
It is only where the Court imposes a penalty under s 83(4) that the [Court] is conferred with the power to make an order under s 83(5). Any order the [Court] makes under s 83(5) is required by the express statutory text to be an order against a person (who has contravened or failed to comply with an instrument) ‘for the purpose of preventing any further contravention or failure to comply’ with the provision of the instrument. Unless an order can be properly characterised for such a purpose, the power to make any order, other than an order imposing a penalty under s 83(4) of the [Act], cannot be invoked.
The [Court] is empowered to make an interim order under s 83(5) pending final determination of an application under s 83(1) (s 83(7)). The power to make an interim order is, however, also not a power at large. Any interim order must be an order under s 83(5); that is it must be an order for the requisite purpose of preventing any further contravention or failure to comply with the provision claimed to be contravened or not complied with in the substantive application, that is the application made under s 83(1). The Governing Council of North Metropolitan Tafe v State School Teachers’ Union of WA [2018] WAIRC 00746 [38]  [39], [51]  [54] (Smith AP).

The Pre-Conditions under s 83(5) of the Act
34 The power of the Court to make an interim order is subject to the preconditions in s 83(5) of the Act. When this principle is applied, it follows that the Court is required to be satisfied that there is a serious question to be tried as to whether:
First Issue: What is it the Respondent has Failed to Do?
(a) the claimant has made out a prima facie case of a contravention or a failure to comply with an instrument (to which s 83 applies); that is, is there a prima facie case that the respondent had failed to comply with cl 11(5) of the EA, when it restructured the BEB; and
Second Issue: What Further Contravention Should be Prevented?
(b) there is a prima facie case that the interim orders sought by the claimant (or the terms of an interim order the Court was considering whether to make) were orders that could properly be characterised as orders for the purpose of preventing any further contravention or failure to comply with cl 11(5).
35 It is only in the circumstances where the Court can be satisfied that a final order could be made and there is prima facie evidence or material before the Court taken at its highest which establishes that such an order is for the requisite purpose that an interim order can be made under s 83(7).
Whether the Balance of Convenience Applies?
36 The power to make an interim order under s 83(7) is discretionary by use of the word ‘may’. While Smith AP did not refer to the balance of convenience as part of her discussion of s 83(5) and s 83(7), it is apparent, in my view, that she focussed on the pre-conditions going to whether there was a serious issue to be tried, rather than on other discretionary factors that may go to determining the balance of convenience. The purpose in doing so was to demonstrate the erroneous decision making at first instance, and it was unnecessary then to consider the balance of convenience in whether to make an interim order.
37 However, Commissioner Matthews did consider the balance of convenience as part of the reasons why he considered that, as a matter of discretion, an interim order should not be made.
38 In my view, the factors that go to considering the balance of convenience for interim orders under s 83(7) should be considered in making a discretionary order of this type.
Submissions
39 Both parties made lengthy submissions. The claimant did so orally. The respondent did so in writing and orally.
40 I mean no disrespect to the parties, whose submissions I was greatly assisted by, however I do not intend to recite the submissions in full but will refer to them where necessary to resolve the issues in determining the Application.
First Issue: Is there a Prima Facie Case of the Respondent’s Contravention?
41 Identifying precisely the alleged contravention is more difficult than expected.
42 The Statement of Claim states the respondent’s act of restructuring the BEB on 29 July 2026 while the Dispute was on foot (in the WAIRC) was a contravention of cl 11(5) of the EA. The Statement of Claim then states that by contravening cl 11(5), the respondent (presumably) contravened the DRP in cl 11 and, therefore, contravened s 83(1).
43 The Statement of Claim limits the Dispute to a restructure of the BEB that has the effect of altering the BEB career pathway provided in cl 12.5 of the EA.
44 However, the evidence lead by the claimant in Mr Marsh’s affidavit in support of the Application expands the Dispute to include cl 13 and cl 11(5) of the EA by referring to numerous email communications between Mr Marsh and the respondent’s representative(s). In these emails, Mr Marsh refers to the respondent being expected to engage in the DRP and ‘maintain the status quo until [the Dispute] was resolved’. Affidavit of John Marsh [26]

45 C 9 of 2026 (referred to at JM-17 of Mr Marsh’s affidavit) limits the Dispute in the application for a s 44 conference to the classification structure and career pathway for employees in the BEB, as it relates to abolishing SBFSO positions and introducing new positions. The claimant further states that in its view the respondent cannot unilaterally modify the BEB classification structure under cl 12.5 of the EA. Further, the claimant expressed concern the respondent may communicate directly with its own workforce about the changes and the respondent has refused the claimant’s request to cease its consultation process.
46 APPL 37 of 2026 (referred to at JM-18 of Mr Marsh’s affidavit) seeks a determination on whether cl 8 of the EA prevents the respondent from changing the pathway and qualification requirements of the BEB in cl 12(5) of the EA and prevents the respondent from creating classifications in the BEB outside the classification structure in cl 12(5) of the EA.
47 The grounds referred to in support of APPL 37 of 2026 outlines the claimant’s view that the proposed removal of the classification structure in its entirety and the displacement of employees from that structure constitutes a fundamental alteration to the progression pathway contemplated by the EA.
48 Perhaps this is form rather than substance but it does highlight the difficulty in determining what it is the respondent is said to have contravened for the purposes of identifying whether there is a serious issue to be tried, and following on from that what interim orders could be made for the purpose of preventing any further contravention or failure to comply with cl 11(5).
49 The claimant seeks an order on a global level that the respondent should be ordered to unwind the whole of its restructure based on its contravention of cl 11(5) of the EA, while the Dispute is being litigated in C 9 of 2026 and APPL 37 of 2026. However, what is being litigated in C 9 of 2026 and APPL 37 of 2026 concerns the changing of pathways and qualifications in the BEB, not the restructure of the BEB, which according to the organisational charts referred to by the parties includes employees not subject to the EA or to no employee where the position is vacant.
50 The claimant says the unwinding of the restructure to a position prior to 2 April 2026 is what is required by cl 11(5) of the EA.
51 The dilemma of what is the contravention alleged is also highlighted in JM-8 of Mr Marsh’s affidavit where DC Paxton informs an affected employee (and presumably one of the claimant’s members) that a proposed restructure will impact the affected employee’s current position which is proposed to be abolished. Several new roles are observed to be created and new opportunities offered with these positions being filled via a quarantined recruitment process. The effected employee is informed they will be invited to apply.
52 According to the claimant where one of the stages in cl 11(7) is engaged, cl 11(5) of the EA requires the status quo to the maintained.
53 For the purposes of the Application, I have some doubts as to whether cl 11(5) of the EA in referring to the ‘status quo’ is referring to it in the manner suggested by the claimant.
54 Having regard to the well-known principles applicable to determining the proper construction of an industrial instrument, the words ‘status quo’ in the second sentence of cl 11(5) appears to be in reference to ensuring that where there is a return to the situation that existed immediately before a dispute, this is not to be used against the party having to accept the return to that situation. That is, it ensures that whatever is the dispute, it will be finally determined without a party fearing a return means they accept the other party’s dispute. The second sentence of cl 11(5) does not appear to contain an enforceable obligation on any party to a dispute.
55 This then leaves the first sentence of cl 11(5) of the EA, which the claimant says is an enforceable obligation on a party while the DRP is being followed. The DRP is set out in cl 11(7) of the EA.
56 Clause 11(7) refers to five stages. It is apparent from the language in at least Stages 1 and 2 that these stages have no relevance in respect of a dispute between parties such as the claimant and the respondent. These stages are very much designed for grass roots level disputes between an employee and some other employee within the organisation, albeit that under cl 11(8) the claimant or one of its representatives may become involved by agreement.
57 The language in Stages 3 and 4 is also difficult to reconcile with the claimant’s position where each is predicated on a failure to settle at the immediate lower level.
58 It is really not until Stage 5 is reached that where a matter is not resolved, a party may refer the matter to WAIRC for conciliation.
59 However, if it is accepted that under cl 11(3) of the EA the claimant (on behalf of employees) may raise a dispute with the respondent, then it cannot have been intended that each and every stage of the DRP applies in a lineal manner to a dispute between the claimant and the respondent. However, where in that continuum between Stage 1 and 4 the DRP commences is not readily apparent or at least not on the limited submissions for the purposes of determining the Application.
60 The respondent submits that the DRP is more likely not ‘followed’ after Stage 4 or after the dispute has been referred to the WAIRC. For my part, and at this early juncture, I am sceptical that it was intended for the DRP to cease at Stage 4 notwithstanding when the dispute remains unresolved. The point of referring the dispute to the WAIRC must be to resolve the dispute, at least in part.
61 Thus, as a preliminary view, I accept the DRP is being followed through Stages 1 to 5.
62 The subsequent issue is what ‘work’ must continue in accordance with the existing situation or practice that existed immediately prior to the subject matter of the dispute occurring.
63 As already stated, the claimant says this means the situational practice that gives rise to the work must continue. The respondent questions what work is required to continue, particularly where the Statement of Claim does not plead what it says was the ‘work’ that needed to continue in accordance with the existing situation or practice, rather the claimant pleads that the ‘status quo’ of everything must remain the same.
64 As the respondent correctly points out the final orders sought by the claimant are the same as the interim orders sought.
65 This then circles back to the original conundrum in determining what is the contravention alleged in the Statement of Claim?
66 Clause 11(5) of the EA does not require the ‘status quo’ to be maintained but requires the continuation of work in accordance with the existing practice immediately before the dispute. If the claimant’s construction of the first sentence in cl 11(5) of the EA is accepted, the Statement of Claim does not plead what work has not continued in accordance with the existing situation or practice that existed immediately prior to the dispute occurring. It pleads the restructure of the BEB and the BFSO and SBFSO positions ceasing to exist with these duties now being allocated to new positions. This is the subject of the Dispute of having altered the BEB career pathway in cl 12(5) of the EA.
67 The Statement of Claim then pleads the respondent’s act of restructuring the BEB while the Dispute remained on foot was in contravention of cl 11(5) of the EA, but the act of restructure is not, of itself, a contravention of cl 11(5) of the EA.
68 I am left to conclude that, even if there were a prima facie case that the respondent contravened cl 11(5) of the EA, the claimant's case, as presently pleaded, is imprecise and vague and is not readily reconciled with the terms of cl 11(5). In those circumstances, I can only regard the claim, at this stage, as a weak one.
69 Further, it should be reiterated that while the Court is not a court of pleadings, where the imposition of a penalty is sought for an alleged contravention (as part of the Court’s enforcement role), precision and clarity in what exactly is alleged is more important.
The Second Issue: the Nature of the Interim Orders Sought and What Further Contravention Could any Interim Order Prevent
70 This lack of precision and clarity then flows through to the interim orders sought by the claimant and the requirement that the orders be characterised as orders for the purpose of preventing any further contravention or failure to comply with cl 11(5) of the EA.
Restraining the Respondent
71 The second interim order sought by the claimant seeks to restrain the respondent from making any changes to the structure of the BEB.
72 Even if such an interim order could be made under the provisions of s 83(7) of the Act, which I have doubt, I understand there are a number of employees within the BEB who are not covered by the EA.
73 Is it intended that the restraint sought by the claimant:
(a) Include these employees?
(b) Include any change to the structure of the BEB, no matter how incidental or irrelevant to the Dispute?
(c) Include what part of, or the whole of, the structure of the BEB, given the differing roles and employees within the BEB (as set out in the organisational charts)?
(d) Alter the current rights of employees?
74 Further to this, it is not clear what purpose an interim order of this type serves in terms of preventing further contravention of cl 11(5), where the contravention alleged is the respondent’s act of restructuring while the Dispute remained on foot.
75 The restructure has already commenced, and it appears is close to conclusion. The positions the subject of the Dispute have been abolished.
76 There is no clear statement in the Application indicating what further contravention the second interim order seeks to prevent beyond reverting the structure of the BEB back to what it was before 2 April 2026.
Reversion of the Restructure
77 The first interim order sought represents the claimant’s true position. That is, for the Court to order the reversion of the restructure of the BEB.
78 However, an interim order of that kind cannot properly be characterised as an order for the purpose of preventing any further contravention of, or failure to comply with, cl 11(5) of the EA. Rather, it is an order directed to restoring the position that existed before the restructuring occurred.
79 Accordingly, I am not satisfied there is a prima facie case that the interim orders sought by the claimant are orders that could properly be characterised as orders for the purpose of preventing any further contravention or failure to comply with cl 11(5) of the EA.
80 Further, and notwithstanding the claimant’s invitation for the Court to make some form of other interim orders, I am not persuaded that Smith AP commenting: ‘or terms of an interim order the Industrial Magistrate’s Court was considering whether to make’ The Governing Council of North Metropolitan Tafe v State School Teachers’ Union of WA [55(b)].
is an openended invitation for the Court to craft orders to fill a party’s void.
Consideration of the Balance of Convenience
81 If I am wrong about the character of the interim orders sought, I will also consider the balance of convenience in making or not making the order as if there was a prima facie case the interim orders were for the purpose of preventing any further contravention or failure to comply with cl 11(5) of the EA.
82 The claimant submits that the balance of convenience favours the making of the interim orders sought for the following reasons:
(a) the respondent committed to maintenance of the ‘status quo’ by agreeing to the bargain that was struck in the EA;
(b) there will be irreversible harm to the claimant through the loss of members (that is, positions that were under the EA will now be under a different enterprise agreement);
(c) damages cannot fix potential job losses;
(d) six members were told their positions were abolished;
(e) there is no urgency for the respondent to restructure the BEB and any interim orders will be limited to one branch of the BEB;
(f) two members of the claimant will potentially lose their jobs; and
(g) while some work in the restructure will be undone this is of the respondent’s own making.
83 The respondent submits that the balance of convenience favours not making the interim orders sought for the following reasons:
(a) there are third parties who will be detrimentally affected by any winding back of the restructure and these parties have not been heard (that is, employees who have been appointed to the new positions at a higher level);
(b) employees in the BFSO positions have accepted a public servant position and winding back the restructure would require these employees to be dismissed and rehired (if this could in fact be done);
(c) two employees have been offered voluntary severance giving rise to a crystalised legal right;
(d) the restructure in part was directed to compliance issues more generally and reverting back to the prior structure does not resolve the compliance issues;
(e) there is no evidence of the progression of C 9 of 2026;
(f) the effect of the abolishment of the BFSO positions, being the union members of the claimant, is overstated where three of the new positions are covered by the EA;
(g) it is not enough to ‘hold an employer to a deal’ for the purpose of allegedly preventing further contraventions; and
(h) if the respondent is correct in its view that it has not contravened the EA, the harm visited on it is greater.
84 I find for the following reasons, the balance of convenience favours not making the interim orders sought:
(a) the evidence does not rise above a possibility that two employees may lose their jobs. There is no or limited evidence that this will, in fact, occur; when it will occur; and there is no evidence that there is pressure on any individual to take or not take a future opportunity. In this regard, I would warn both parties to leave any such employee to make up their own mind;
(b) as currently pleaded, a prima facie case of an alleged contravention in the Statement of Claim is weak;
(c) there is considerable doubt about the Court’s power to make the interim orders sought. I am certainly not persuaded that the Court can restrain the respondent from making any changes to the structure of the BEB that does not involve employees covered by the EA, which is ultimately what is sought by the claimant (even if I could be satisfied that the Court’s powers extend to restraints of that kind in any event);
(d) further I have considerable doubt that the limited powers of the Court extend to ordering the reversion of a restructure that has already occurred, particularly where it is unknown what there is left to do (but it appears little);
(e) the effect of winding back the restructure will have an unknown, but possible detrimental, impact upon employees who have been appointed to new positions;
(f) the impact upon employees generally will, arguably, be more uncertain because it is unknown how long or when the WAIRC proceedings will conclude. In the meantime, employees who now have certainty or at least a pathway to certainty will be left to wonder what will happen to them in the future;
(g) it is doubtful the Court under s 83(5) and s 83(7) can order either party to pay damages for any loss; and
(h) the Dispute is before the WAIRC (and has been for some months), which, as suggested by Commissioner Matthews, has a robust and effective regime for dealing with industrial matters. By way of example, s 44(6)(ba)(i) of the Act provides that the Commission may at or in relation to a conference give such directions as it considers appropriate, which includes preventing the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved the matter. To that end, and contrary to the claimant’s submissions that the WAIRC does not have analogous powers, I note in the decision referred to by the respondent in court, Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 01064; (2014) 94 WAIG 563, Commissioner Kenner (as he was then), at [30], formed the view that removing the status quo (that was invoked at a previous s 44 compulsory conference) would be contrary to maintaining good industrial relations between the parties to the dispute. This indicates that the WAIRC has a mechanism, albeit not identical, for dealing with situations similar to the Application.
Outcome
85 For the reasons given, the claimant’s application for interim orders sought is dismissed.





D. SCADDAN
INDUSTRIAL MAGISTRATE




SCHEDULE I: Jurisdiction, Practice and Procedure of the Industrial Magistrates Court of Western Australia
Jurisdiction
[1] The Court has the jurisdiction conferred by the Act and other legislation. Section 83 of the Act confers jurisdiction on the Court to make orders for the enforcement of a provision of an industrial agreement where a person has contravened an entitlement provision.
[2] Section 7 of the Act defines entitlement provision as, relevantly, (ii) an industrial agreement, which means an agreement registered by the WAIRC under the Act as an industrial agreement.
[3] Section 83(4) of the Act provides that on hearing of an application under s 83(1) of the Act, the Court may, if the contravention is proved, impose a pecuniary penalty under ss (4A) or dismiss the application.
[4] The powers, practice and procedure of the Court are contained in the Industrial Magistrates Court (General Jurisdiction) Regulations 2005.
Contravention
[5] Contravention of an entitlement provision may result in a pecuniary penalty. The pecuniary penalty may be an amount not exceeding: in the case of a body corporate $930,000 if the contravention is a serious contravention or $93,000 if the contravention is not a serious contravention; and in the case of an individual $180,000 if the contravention is a serious contravention or $18,000 if the contravention is not a serious contravention.
Burden and standard of proof
[6] In an application under the Act, the party making an allegation to enforce a legal right or to relieve the party of a legal obligation carries the burden of proving the allegation. The standard of proof required to discharge the burden is proof ‘on the balance of probabilities’. In Miller v Minister of Pensions [1947] 2 All ER 372, 374, Lord Denning explained the standard in the following terms: It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal, it is not.
[7] In the context of an allegation of the breach of a civil penalty provision of the IRA it is also relevant to recall the observation of Dixon J said in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.