Appeals and Related Matters Before the Full Bench and the President

The Relevant Law

The relevant law for these matters is the Western Australian Industrial Relations Act 1979, 'the Act' (as amended) and the Industrial Relations Commission Regulations 1985 'the Regulations' (as amended). These are available on the Western Australian's Commission's Website (www.wairc.wa.gov.au).

There are other areas of law which you may need to examine to proceed with your application.  Much of the law which applies can be found in the reasons for decision of the Industrial Appeal Court (the next level of appeal after the Full Bench) and the Commission itself in the Western Australian Industrial Gazette (Alexander Library or the law libraries of UWA or Murdoch University) or on the WAIRC website.

An Appeal is not a chance to rerun your case. Normally an Appeal is heard and determined on the evidence and matters raised in the initial hearing before the Commission. This means that generally speaking you will not be able to call witnesses to give evidence, or provide documents, to the Full Bench which were not before the Commission at the initial hearing. See SECTION THREE, the guidelines for preparation and appearances.

The Commission strongly recommends that you seek advice to ensure you apply the correct provisions of the relevant Act and Regulations and use related and significant case references.

Step One - Filing a Notice of Appeal

A Notice of Appeal to the Full Bench of the Commission is made against the decision of a single Commissioner (Section 49 of the Act) or against the decision of an Industrial Magistrate (Section 84) and is heard by the President and at least two Commissioners. The Commissioner who heard the original matter is not part of the Full Bench.

• A Notice of Appeal must be instituted within 21 days of the initial decision. The date of the decision is taken when the decision is sealed by the Commissioner and deposited in the Registry.

• The Notice of Appeal is to be lodged on Form 9 (All forms referred to in this information package are available in the Form section of the web-site) and Grounds of Appeal need to be attached.

• In a Notice of Appeal the person appealing against the initial decision is called the APPELLANT and the person opposing the appeal is the RESPONDENT. The full name and full street address of each party as cited in the original matter is to be included.

• The Notice of Appeal needs to cite the name of the Commissioner (or Magistrate), the number of the original application and the date of the decision. The Appeal may be against all of the Decision (Order) or just part of it. On the Form 9 you need to clearly state whether it is the entire order or just part of it and which part.

• The Grounds of the Appeal must be attached to the Form 9. Generally speaking the grounds of an appeal needs to demonstrate clearly that the original decision:
  • Did not properly account for the evidence put at the hearing, and/or
  • Erred in the application of the relevant law (which includes case law)
  • In stating your grounds of appeal you must specify where you believe the Commissioner erred in his/her findings.  For each ground you must then state the particular areas of the Reasons for Decision where you believe that the decision was against the evidence or the weight of the evidence and/or why it is wrong in law.
  • State the remedy you seek. The APPELLANT needs to clearly state the decision he/she is seeking from the Full Bench.  Example 'that the original decision is quashed' 'that the application be referred back to the Commissioner for further determination'

Before a Notice of Appeal can be accepted for filing, the Registrar needs to be satisfied that the grounds are complete as outlined above. If the grounds are not properly stated then the Notice cannot be filed

Once you have filed an appeal, there are a number of procedures you must follow. This includes:

Step Two         Serving the Notice of Appeal and grounds on all the relevant parties, the Respondent/s. This can be by hand or pre-paid post.

Step Three      Filing a declaration of service within seven days of serving the document. (Form 4).

Step Four        Compiling and filing and serving appeal books within fourteen days of lodging the Appeal.

                        Appeal books must contain:

                           a.     Contents page
                           b.     a copy of the notice of appeal;
                           c.     a copy of the application or reference instituting the proceedings before the Commission;
                           d.     a copy of any answer or counter proposal filed in such proceedings;
                           e.     where applicable, a copy of that part or those parts of the settled issues containing the matters relevant to the appeal which were before the Commission;
                           f.      a copy of the decision which is the subject of the appeal and the Commission's reasons therefore;
                           g.     a list of the page numbers of the transcript of the proceedings at which reference is made to the subject matter of the appeal (even if transcript forms part of the appeal book)
                           h.     a copy of all relevant exhibits tendered during those proceedings; and
                           i.      all pages in Appeal Book to be numbered.

These requirements are outlined in Regulation 102 (see Acts & Regulations section).  Take particular note of what needs to be contained in the appeal books and the fact that you will need to prepare at least five copies.  This includes three copies for the Full Bench, one for each Respondent and one for your own use.

The Deputy Registrar will not accept an appeal book unless all documents contained therein are clearly legible and each page is sequentially numbered.  It is desirable that there is also an index.  The Appeal books must be bound and the preference of the Commission is that the books are bound in 'comb binding'. (Please ensure that one copy is not bound to assist the lodgement and scanning process)

Step Five        Filing a declaration of service for the Appeal books (Form 4)

Step Six          Informing the Deputy Registrar in writing of your available dates and an estimate of how long the hearing will take.

Lodging an Appeal outside of 21 Days

A person who has failed to lodge a notice of appeal within 21 days of the decision may be able to file the notice provided they lodge an application for an extension of time. This is made on Form 1.

The application required is to extend the time in which to lodge the appeal.  It will need to demonstrate sound reasons why the appeal has been lodged out of time.  The application will be heard immediately before the appeal on the same day of the hearing.  The granting of leave to extend the time is in no way automatic and Appellants run the risk of not being able to have their Appeal heard if they are out of time.

In applications for other orders related to the appeal (e.g. the extension of time) you are the Applicant, rather than the Appellant, and the person opposing those orders is called the Respondent.

Other Applications relating to Appeals

There are several other situations where parties to an Appeal may need or wish to lodge applications to deal with preliminary issues related to the Appeal.  In all of these situations the party lodging the application is the Applicant and the other party is the Respondent.  These could include:

• An Application for a Stay of Order (see below)
• An Application for extension of time in which to lodge the appeal books.  This needs to be filed before the due date, state why the extension is sought and ideally provide a date when they will be filed.  This will be heard on the same day of the hearing of the Appeal.
• An Application that the Notice of Appeal be 'struck out' - this typically would be filed by the Respondent to the Notice of Appeal.  This is done for example where the Respondent to the Appeal takes the position that the Appeal is incompetent or not within jurisdiction.

Relevant provisions: Sections 49 & 84 of the Act and Regulation 102. 

Application for STAY of an ORDER

STAY OF ORDER OF COMMISSION

An application for a stay is made to suspend the operation of an order of the Commission which requires the Appellant to take some course of action within a certain period of time. For example as a party to the original application you have been ordered to pay a sum of money by a certain date and you are appealing against that order. A stay can be granted so as to suspend the order until such time as the appeal is heard and determined by the Full Bench.

The order may be made by the President under section 49(11) of the Industrial Relations Act 1979(WA). This provides that any time after an appeal to the Full Bench has been instituted, a person who has a sufficient interest may apply to the Commission for an order that the operation of the decision appealed against be stayed wholly or in part pending the hearing and determination of the appeal.

Section 49(12) provides that an application under subsection (11) shall be heard and determined by the President.

An application for a stay needs to be made separately to the appeal and is commenced by lodging a Form 1. (See regulation 102(6) of the Industrial Relations Commission Regulations 2005) An application for a stay can only be filed once the appeal has been properly instituted (ie filed, served and a declaration of service has been filed). The stay application will be issued with a different application number to the appeal.

The grounds in support of the stay need to be set out in a schedule attached to the Form 1. You will need to be able to satisfy the President that it is appropriate to grant the stay. This is because ordinarily a successful party is entitled to enjoy the fruits of their litigation (ie the benefit of the order at first instance).

The schedule to the application should refer to the following:

a) The reason for seeking the stay.
b) The consequences of the stay not being granted. For example will the appeal be made nugatory (lacking in utility) if the stay is not granted.
c) Anything else which affects the balance of convenience if the stay is not granted. That is which party will be inconvenienced more if the stay is not granted.
d) Whether the appeal has a reasonable prospect of success.
e) If there are any other special circumstances that support the granting of the stay

Once you have filed the application for a stay, it will go to the President's Chambers to be endorsed with procedural directions and a hearing date. When the application is filed you will need to leave contact details so the President's Chambers can notify you when the application is available to be collected.

The endorsed procedural directions will ordinarily include the date and time by which the application needs to be served on the other party and a declaration of service filed. The directions may also include a requirement to swear an affidavit setting out the facts which support the application. You will need to serve the application with the endorsed procedural directions and hearing date upon the other party.

The granting of a stay is a discretionary decision and depends upon the application of principles which have been discussed in a number of cases (See for example John Holland Group Pty Ltd v CFMEU (2005) 85 WAIG 3918 at [32]-[38], Seacode Nominees Pty Ltd v Nigel Anthony Penfold (2005) 85 WAIG 3926 at [6]-[8], [12]-[17] and The St Cecilia's College School Board v Carmelina Grigson (2006) 86 WAIG 1260). These principles will be considered by the President in deciding in each case whether a stay should or should not be granted.

STAY OF ORDER OF INDUSTRIAL MAGISTRATE

An odrer or judgement of an Industrial Magistrate is automatically suspended (stayed) if an appeal is lodged until the appeal is decided. (See regulation 42 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005). Therefore there is no need to apply for a stay in this situation.

Applications Related to Industrial Organisation Matters

Introduction

The Industrial Relations Act 1979 recognises industrial organisations and associations as representatives of either employers or employees.  This includes both Organisations of Employees (these are probably more commonly referred to as unions) and organisation of Employers (more commonly referred to as employer associations).  Associations under the Act refer to a body which is formed by two or more organisations.  

Sections 52 to 80 of the Industrial Relations Act 1979 relate to how registered organisations operate under the Act.  This includes how organisations are registered, how they change their registered rules and name, the information they need to forward to the Commission in relation to membership numbers, officials and finances, how they conduct elections and a range of other provisions.

Complaints of Members

Section 66 of the Act provides for members, potential members or former members of an organisation to lodge a complaint against an organisation if they believe that a rule of the organisation has not been observed, has been breached, not complied with or inappropriately used or that a rule of the organisation should be disallowed.  These complaints are dealt with by the President of the Commission sitting alone.

Applications made pursuant to s.66 of the Act are made on a Form 1. In these applications the individual/s are the Applicant and the organisation is the Respondent.

The Application needs to state the full name of the Registered Organisation.  The list of all registered organisations is contained on the Commission's website ' www.wairc.wa.gov.au under the heading 'Representation'.  The registered rules of each organisation are also contained in this section of the website.

Form 1 requires you to state the Grounds of the Application.  If you cannot complete your grounds on the form (it is unlikely all the information can be contained in the short space provided), you can specify the grounds on an attached Schedule. You should indicate on the form that you are attaching a schedule.

The grounds of the application should state on what basis you bring the complaint i.e. your category of membership of the Organisation -   member, previous member, or person denied membership.

The grounds should also state which particular rule/s of the organisation are the basis of the application and a brief summary of the facts, as you perceive them, which have lead to the breach, non-compliance or inappropriate application.

After specifying your grounds you need to state the remedy you are seeking. E.g. 'an order that the rule be disallowed' or 'that the Secretary of the organisation be directed to take a course of action.'

Your full contact details, including telephone number, need to be included on the schedule.

You will need to bring three copies of the application and schedules to the Commission for filing.  Unlike other applications you will not receive your service copy back immediately.  The Application will be forwarded to the President's Chambers for endorsement.  The endorsement will contain the details of a Directions hearing, which generally speaking will be no earlier than seven days after the application has been lodged.  The Applicant will be notified that the application is ready to be picked up and it will then need to be served on the Respondent.  This can be by hand or pre-paid post. You will then need to file a declaration of service within the time specified in the endorsement on the notice. This is done on a Form 4.

The endorsement may require you and or the Respondent to file other documents e.g.

          That should the respondent intend to oppose the application then before midday on ........, the .... day of ........ 2005 they file and serve their answer.

That the applicant herein do file and serve 48 hours before the said directions hearing a Minute of Proposed Order setting out directions sought.

The purpose of a directions hearing is to establish whether there are any preliminary issues which need to dealt with and whether any documentation relevant to the application is sort to be discovered from any of the parties.  The directions hearing will also set the hearing date for the hearing of the complaint although the parties will probably have been directed to provide their available/unavailable dates in the endorsement on the notice of application.

The guidelines for both the directions hearing and the hearing of the complaint are in Section 3.

Unfair Dismissals & Denial of Contractual Benefits

The Industrial Relations Act 1979 allows for a person, who is or was an employee, to make a claim to the Industrial Relations Commission that they have been:

            (i)     harshly, oppressively or unfairly dismissed from employment; and/or
            (ii)    denied by their employer a benefit, not being a benefit under an award or order, to which the employee is entitled under their contract of service.

If you wish to make a claim to the Commission, you must complete comply with the following procedures:

• Complete and file a Form 2 - Notice of Application (s.29(1)(b)(i), Unfair Dismissal; or complete and file a Form 3 - Notice of Application (s.29(1)(b)(ii), Denial of Contractual Benefits
• The applicant lodges their application (+ 2 copies) with the Registry at the Commission. The filing fee is $50.00 for a claim for unfair dismissal and/or contractual benefits.
• A claim for unfair dismissal and/or denial of contractual benefits may be lodged electronically via the Commission's website www.wairc.wa.gov.au (regulation 5 refers)
• A file number is allocated and 2 copies are returned to the Applicant. The original is retained for the Commission's file.
• Applicant serves 1 copy on the employer (by hand, mail or registered mail, whichever is preferred).
• Once the applicant has served a copy on the employer, they then complete and have witnessed a Form 4 - Statutory Declaration of Service and return it to the Commission. This confirms to the Commission that the respondent has been served with the application.
• The employer has 21 days from the date they receive the application to respond.
• If the employer chooses to respond, they complete a Form 5 - Notice of Answer and Counter Proposal. The employer may also attach a supporting letter, note and/or other documents to it.
• The employer lodges the Form 5 and any attachments (+ 2 copies) together at the Commission. If the employer chooses to respond, they can also do so electronically via the Commission's website www.wairc.wa.gov.au. There is no fee to lodge a Notice of Answer & Counter Proposal (5 - Notice of Answer and Counter Proposal). The original is processed and retained for the commission's file. The 2 copies are returned to the Respondent.
• The respondent then serves a copy upon the applicant (by hand, mail or registered mail, whichever is preferred).
• Once the respondent has served the Form 5 - Notice of Answer and Counter Proposal, they then complete and have witnessed a Form 4 - Statutory Declaration of Service and return it to the Commission. This confirms to the Commission that the applicant is in receipt of the reply.
• If (after the 21 days has lapsed) the applicant chooses to proceed with the application (whether they have received an answer or not), they send a request for hearing to the Registry.
• The Commission then arranges a conciliation conference between the parties to assist them to resolve the issue.

See also 'Representation'.