How WA police bargain, and what is happening now.

1. Who. An agreement on an industrial matter may be made between an organisation of employees and an employer (s 41(1)). The Police Agreement 2024's parties are the union and the Commissioner of Police (cl 1.3).
2. Registration. If the parties apply, the Commission "must register" the agreement, subject to s 41(3), s 41A and s 49N (s 41(2)). It may first require a variation to give clear expression to the parties' true intention (s 41(3)).
3. What registration requires (s 41A):
   1. a nominal expiry date no later than 3 years after the agreement comes into operation;
   2. any provision the Commission has specified by an order under s 42G;
   3. an estimate of the number of people who will be bound. The Police Agreement 2024 records 7,286 (cl 1.4) and the Police Auxiliary Officers Agreement 2024 records about 419 (cl 1.4).
4. Status. The instruments use "Employee" and "Employer". Those are the instruments' words, and they do not change what a sworn officer is at law. How far IR Act Sch 3 cl 2(2) reaches auxiliary officers is open, because it does not name them, though the Police Auxiliary Officers Agreement 2024 is registered under the Act.

1. A written notice. A party may initiate bargaining by a notice with particulars of the types of employment, the area and the intended parties (s 42(1), (3)).
2. Not too early. If an agreement is in force, a notice must not be given earlier than 90 days before its nominal expiry date (s 42(5)).
3. A reply. The person given the notice may say within 21 days whether they will bargain, and the Commission may extend that by no more than 7 days (s 42A(1), (2)).
4. Talks outside the section. Nothing prevents bargaining when it has not been initiated under s 42(1) (s 42(7)). The difference matters. In 2016 the Commission could not declare bargaining ended, because bargaining had not been initiated under s 42(1) and s 42(3) had not been complied with ([2016] WAIRC 00685 at [12]–[13]).

Negotiating parties must bargain in good faith (s 42B(1)). That includes:

1. stating and explaining their position;
2. meeting at reasonable times, intervals and places;
3. disclosing relevant and necessary information;
4. acting honestly and openly;
5. recognising bargaining agents;
6. providing reasonable facilities to the representatives of organisations of employees;
7. bargaining genuinely and dedicating sufficient resources;
8. adhering to agreed outcomes and commitments (s 42B(2)).

The duty does not require anyone to agree on any matter or to enter into an agreement (s 42D). The Commission may make orders and give directions to ensure good faith bargaining (s 42E(2), (3)). Except as s 42G provides, it must not require a party to enter into an agreement or to include or exclude any matter (s 42F).

Where the parties have agreed on some but not all provisions, the negotiating parties may apply for an order on specified matters. When registering the agreement the Commission may then order that it include provisions it specifies (s 42G(1), (2)).

1. The order is confined to the matters the parties specified (s 42G(3)).
2. The Commission may have regard to any matter it considers relevant (s 42G(4)).
3. No appeal lies from the order (s 42G(6)).

The police example is the origin of Rest Days. After a declaration that bargaining had ended, the parties reached agreement except for one claim, five days of additional leave ([2021] WAIRC 00047 at [3], [4]). The Arbitrator refused the additional leave and instead ordered two Rest Days a year on full pay, limited to "the unique nature of policing work" (at [318]–[320]). The Police Agreement 2024 now gives "three rest days on full pay each year" (cl 31.1).

A single Commissioner may declare that bargaining has ended on the application of a negotiating party, if satisfied of three things (s 42H(1)):

1. the applicant has bargained in good faith;
2. bargaining between the applicant and the other party has failed;
3. there is no reasonable prospect of reaching an agreement.

No appeal lies from a declaration (s 42H(2)). In 2020, after five rejected offers, the Commission said a question to ask can be "whether there is at least a moderate expectation of the parties reaching an agreement", and made the declaration ([2020] WAIRC 00269 at [4], [11]).

After a declaration, or where the person given a notice does not respond or refuses to bargain, the Commission may make an enterprise order on any matter that might be in an industrial agreement, if it considers the order "fair and reasonable in all of the circumstances" (s 42I(1)).

1. Time. The application may be made within 21 days after the declaration, or after the end of the response period (s 42I(3)).
2. Effect. It prevails over a conflicting award or agreement (s 42J(3)), and is enforceable under s 83 as if it were an award (s 42J(4)).
3. Term. It cannot run for more than 2 years (s 42K(2)), and continues after expiry until a substitute is made (s 42K(7)).
4. Conciliation can continue after an application is made (s 42I(4)).

The police example is the auxiliary officers' enterprise order, sought by the union and the Civil Service Association together. The disputed matters included changes to shift arrangements, missed meal breaks and when overtime starts ([2017] WAIRC 00822 at [5]–[10]; [2017] WAIRC 00909).

Three different rules are in play, and they are not the same:

1. The Police Agreement 2024 continues "until such time as either party withdraws from this Agreement by notification in writing to the other party and to" the Commission (cl 4.4);
2. The Police Auxiliary Officers Agreement 2024 remains in force "until 1 November 2027 or until a replacement industrial agreement is registered" (cl 5.1);
3. the Act says an expired agreement continues for all parties except those who retire from it, until a substitute is made (s 41(6)), and a party may retire by filing a notice at any time after, or not more than 30 days before, expiry, taking effect 30 days after filing (s 41(7)).

An agreement's continuing does not itself produce a pay rise. Neither agreement prints a rise after its last dated step.

The Police Agreement 2024 says "There shall be no further claims during the term of this Agreement" (cl 9.1). As a legal point:

1. a clause in the same words in the 2022 police agreement has been applied to a claim brought for one member ([2026] WAIRC 00046 at [24]–[27]);
2. the Full Bench, refusing an extension of time in the parallel matter, said a claim for one member can be caught, and that the issue "may be a contentious one" ([2026] WAIRC 00371 at [33]–[36]). It did not conclude that the grounds of appeal were hopeless (at [36]).