Western Australian Industrial Relations Commission

Full Bench no jurisdiction to hear appeal from Industrial Magistrate

The Full Bench has unanimously dismissed an appeal against a decision of the Industrial Magistrate’s Court exercising jurisdiction under the Fair Work Act 2009 (Cth). It found that it had no power to review a decision of the IMC exercising federal jurisdiction.

Facts

The matter before the industrial magistrate was a claim relating to entitlements said to arise under the FW Act and an award made under that Act, the Hospitality Industry General Award 2010.

The appeal was filed on 29 July 2020, along with an application for an extension of time until 28 October 2020 to file an appeal book. The reason given for the application to extend time was that the appellant was self-represented, and its director, who had carriage of the matters, was not available under mid-October 2020 because he was sailing in the Kimberleys.

On 14 August 2020, the Full Bench directed the appellant to file written submissions by 28 August 2020 about whether the Full Bench has jurisdiction to hear the appeal, to which an extension was also requested.

On 4 September 2020, the Full Bench granted the appellant an extension to 18 September 2020. The Full Bench noted that should the appellant fail to respond by that time, the Full Bench would proceed to consider whether the appeal is within jurisdiction based on the material currently before it.

By 18 September 2020, there had been no response received from the appellant.

Consideration and Conclusion

The Full Bench found that it does not have jurisdiction to deal with the matter as the appropriate jurisdiction for an appeal against the IMC in dealing with the matter under the FW Act lies to the Federal Court, not the Commission.

The Full Bench also found that the appellant had reasonable opportunity to make a submission, and that his unavailability was not sufficient to warrant the matter being delayed further.

The appeal was dismissed.

The decision can be read here.

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