Western Australian Industrial Relations Commission

Making Applications

Making Applications

Appeals and Related Matters Before the Full Bench and the President

The Relevant Law

The relevant law for these matters is the Industrial Relations Act 1979 (the Act) (as amended), and the Industrial Relations Commission Regulations 2005 (the Regulations) (as amended).

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 online, or at the Western Australian Industrial Relations Commission Library, the Alexander Library, or the law libraries of the University of Western Australia or Murdoch University.

An appeal is not a chance to re-run your case. Normally an appeal is heard and determined on the evidence and matters raised in the initial hearing before the Commission, or the Industrial Magistrate. This means that generally speaking you will not be able to call witnesses to give evidence or to provide documents to the Full Bench, which were not before the Commission or Court at the initial hearing (refer Western Australian Industrial Relations Commission - Representing Yourself.

It is strongly recommended that you seek independent legal or industrial 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 (s 49 of the Act) or against the decision of an Industrial Magistrate (s 84 of the Act) and is heard by the President and at least two Commissioners. The Commissioner who heard the original matter will not be a member of the Full Bench.

  • A Notice of Appeal must be instituted within 21 days of the initial decision (s 49(3) of the Act). The date of the decision is taken to be the date when the decision is sealed by the Commissioner and deposited in the WAIRC Registry.
  • The Notice of Appeal is to be lodged on a Form 9 - Notice of appeal to Full Bench (Form 9) and grounds in support of the appeal must be attached.
  • When completing the Form 9, the person appealing against the initial decision is known as 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 completed on the Form 9.
  • The Form 9 needs to cite the name of the Commissioner (or Industrial Magistrate), the number of the original application and the date of the decision. The appeal may be against all of the decision or just part of it. On the Form 9 you need to clearly state whether you are appealing the entire decision 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 need 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 the grounds of your appeal you must specify where you believe the Commissioner or Industrial Magistrate 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.

You must also clearly state the remedy you are seeking from the Full Bench. For example, that the original decision be quashed, or perhaps that the application be referred back to the Commission/Industrial Magistrate for further hearing and determination.

Before a Form 9 is able to be accepted for filing, the Registrar must be satisfied that the grounds in support of the appeal are complete, as outlined above. If the grounds are not properly stated then the Form 9 will not be accepted for filing.

Once you have filed your Form 9, there are a number of procedures you must follow, which are listed below.

Step Two Serve the Form 9 and attached grounds on each person who was a party to the proceedings at first instance, or on the agent or solicitor who represented that party. Service may be effected by hand or pre-paid post.

Step Three File with the Registry a Form 4 - Statutory declaration of service (Form 4) - Statutory declaration of service, within seven days of serving the Form 9.

Step Four Compile, file and serve appeal books within 14 days of lodging the Form 9 (Reg 102(10) of the Regulations).

An appeal book must contain:

  • a copy of the notice of appeal;
  • a copy of the application or reference instituting the proceedings before the Commission/Industrial Magistrate;
  • a copy of any answer or counter proposal filed in the proceedings;
  • 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/Industrial Magistrate;
  • any written submissions, or outline of submission, provided to the Commission/Industrial Magistrate;
  • a copy of the decision that is the subject of the appeal and the Commission's/Industrial Magistrate’s reasons for that decision;
  • a list of the page numbers of the transcript of the proceedings at which reference is made to the subject matter of the appeal;
  • a copy of all relevant exhibits tendered during the proceedings; and
  • a copy of any other document which will be required by the Full Bench to determine the appeal, including any further particulars of the claim or answer filed in the proceedings.

In addition, the Acting President has directed that an appeal book contain a contents page, and that all pages within the appeal book are numbered.

A Deputy Registrar is not to accept an appeal book unless all documents contained therein are clearly legible.

The requirements relating to appeal books are outlined in Reg 102(11A) of the Regulations. Take particular note of what an appeal book must contain 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.

Appeal books must be bound. The Commission’s preference is that the books are bound in 'comb binding'. It is also requested that one copy is left unbound to assist in the lodgement and scanning process undertaken within the Registry.

Step Five File a Form 4 with the Registry as soon as possible as proof of service of the appeal books.

Step Six Inform the Deputy Registrar in writing of your unavailable dates during the upcoming three months, and an estimate of the duration of the hearing of the appeal.

Filing an Appeal Outside of 21 Days

A person who has failed to file a Form 9 within 21 days of the decision may still be able to file a notice of appeal provided they also file an application seeking an extension of time. An extension of time application is made on a Form 1 - Notice of application (general) (Form 1) - Notice of application.

In any applications for orders made to the Full Bench which are related to the appeal, you are the applicant, rather than the appellant, and the person opposing those orders is called the respondent.

An application seeking to extend the time to file an appeal to the Full Bench must have grounds attached to it which demonstrate sound reasons why the appeal has been filed out of time, and why the Full Bench should grant the application. The granting of leave to extend the time is in no way automatic. Appellants run the risk of not being able to have their appeal heard if they do not file their appeal within the 21 day prescribed time frame.

When an application seeking to extend the time to file an appeal is filed, the Full Bench will consider the application after hearing from the applicant and the respondent. This may be done informally, or by way of a formal hearing. Parties will be kept informed by the Commission as to the status of the application, and whether they will be required to attend a hearing.

Following determination of the application to extend time to file an appeal, the Full Bench will issue relevant orders.

The same extension of time application process is to be followed where an extension of time is required to file appeal books, outside of the 14 day prescribed time period.

In some cases, a respondent to an appeal may to file an application that the appeal be “struck out” or dismissed. In this situation, the respondent to the appeal would become the applicant, and you (the appellant) would become the respondent. This type of application may be made where the respondent to the appeal takes the position that the appeal is incompetent or not within jurisdiction.

Application for a Stay of Operation of a Commission Order

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.

An order granting a stay may be made by the President under s 49(11) of the Act, which 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 (refer also to Reg 102(6) of the Regulations).

Section 49(12) provides that an application under s 49(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 filing a Form 1. The stay application will be issued with a different application number to the appeal.

The grounds in support of the application for a 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 (i.e. the benefit of the order at first instance).

The schedule to the application for a stay should refer to the following:

  • the reason for seeking the stay;
  • the consequences of the stay not being granted (e.g. will the appeal be made nugatory (lacking in utility) if the stay is not granted?);
  • anything else which affects the balance of convenience if the stay is not granted (i.e. which party will be inconvenienced more if the stay is not granted);
  • whether the appeal has a reasonable prospect of success; and
  • if there are any other special circumstances that support the granting of the stay.

Unlike other applications, you will not receive your service copy back immediately. Once filed, the application will be forwarded to the President's Chambers to be endorsed with procedural directions.

The directions will ordinarily include the date and time by which the application is to be served on the respondent, when a Form 4 is to be filed by, and a hearing date. The directions may also include a requirement to swear an affidavit setting out the facts which support the application.

The President’s Associate will notify you when the application is available to be collected from the Registry.. You will then need to serve the application with the endorsed procedural directions and hearing date upon the respondent.

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 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 order or judgement of an Industrial Magistrate is automatically suspended (stayed) if an appeal is filed, until such time as the appeal has been heard and determined (Reg 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 (the Act) recognises industrial organisations and associations as representatives of either employers or employees. This includes both organisations of employees (more commonly referred to as unions) and organisations 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.

Division 4 - Industrial organisations and associations (s 52 to 80) of the Act regulates how registered organisations operate, and identifies specific compliance requirements. This includes, but is not limited to:

  • how organisations are registered;
  • how they may alter their registered rules and/or name;
  • the information they are required to provide to the Registrar in relation to membership numbers, office bearers and financial reports; and
  • how they must conduct elections for office bearers.

Complaints by Members of Registered Organisations

Section 66 of the Act provides an avenue for:

  • a person who is or has been a member of an organisation; or
  • a person who has applied for and not been admitted to membership in an organisation; or
  • the Registrar acting on the complaint of or on behalf of a person referred to in paragraph (a); or of his own motion,

to make an application to the President (sitting alone) for orders and/or directions relating to the rules of the organisation and their observance, non-observance or the manner of their observance. The President has the authority to determine whether an organisation has breached its rules in this regard.

The President may also declare a true interpretation of any rule, and enquire into any election for an office in the organisation in circumstances where it is alleged that there is an irregularity in the election process.

In addition, the President has the authority to determine whether particular rules should be disallowed in circumstances where any rule is:

  • inconsistent with any act, law or State industrial instrument; or
  • is tyrannical or oppressive; or
  • prevents or hinders any member of an organisation from observing any act, law or State industrial instrument; or
  • imposes unreasonable conditions on a member or members; or
  • is inconsistent with the democratic control of the organisation by its members.

Applications made pursuant to s.66 of the Act are to be filed on a Form 1 - Notice of application (general) (Form 1), with grounds in support of the application attached. In these applications the individual(s) are the applicant(s) and the organisation is the respondent.

The application must state the correct name of the registered organisation, in full. The address and telephone number of each party must also be provided on the Form 1. A list of all registered organisations, along with the registered rules of each organisation is available on the Commission’s website, here.

The grounds in support of the application should state whether you are a current member of the organisation, a previous member, or a person who has been denied membership.

The grounds should also state which particular rule(s) of the organisation that you allege have not been complied with and a brief summary of the facts, as you perceive them, which have led to the breach, non-compliance or inappropriate action.

Further, the grounds must specify the remedy you are seeking. For example, you may seek an order from the President that a specific rule or rules be disallowed, or that the Secretary of the organisation be directed to undertake a certain course of action.

Unlike other applications, you will not receive your service copy back immediately. Once filed, the application will be forwarded to the President's Chambers to be endorsed with procedural directions.

The directions will ordinarily include the date and time by which the application is to be served on the respondent, when a Form 4 is to be filed by, and a date for a directions hearing. The directions may also include a requirement to swear an affidavit setting out the facts which support the application, and information for the respondent about how they may respond to the application.

The President’s Associate will notify you when the endorsed application is available to be collected from the Registry. You will then need to serve the application with the endorsed procedural directions and hearing date upon the respondent.

The purpose of a directions hearing is to establish whether there are any preliminary issues which need to be dealt with and whether any documentation relevant to the application is sought to be discovered from any of the parties. A date for the hearing of the application will be set during the directions hearing.

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 (http://www.wairc.wa.gov.au/Files/Forms/Form_5.pdf). 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'.

Contact Us

Western Australian Industrial Relations Commission
17th Floor
111 St Georges Terrace
PERTH WA 6000

Phone : (08) 9420 4444
Facsimile : (08) 9420 4500
Free Call : 1800 624 263

Free Fax :1800 804 987

Email : Registry

 

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