Western Australian Industrial Relations Commission

Guides

Processing of a Claim: How to Lodge

Question?

How do I find out where to make my application? (Western Australia Industrial Relations Commission (State), Fair Work Commission (Federal) or Industrial Magistrates Court).

Answer

You will need to find out what award, if any, covers your employment, by contacting the Wageline 1800 655 266.  If you are still not sure which jurisdiction you may need to file your claim and seek some legal advice.

What is the Public Service Appeal Board?

The Public Service Appeal Board is a constituent authority, or part, of the Commission. It hears and determines appeals brought by government officers or public service officers. The Board is constituted by:

  1. A Chairman who is either the President of the Commission or a Public Service Arbitrator (who is a Commissioner appointed to be a Public Service Arbitrator), depending on the nature of the appeal;
  2. The employer’s nominee: somebody independent of the dispute, appointed by the employer; and
  3. The employee’s nominee: somebody independent of the dispute, nominated by The Civil Service Association of Western Australia Incorporated or another union of which the employee is a member.

The employee’s and employer’s nominees do not represent the interests of the parties who nominate them. The parties either represent themselves or are represented by a lawyer, industrial agent or some other person.

Who can bring a matter to the Public Service Appeal Board, and what can be appealed?

The Board’s jurisdiction varies, depending on the type of decision being appealed.

Nature of the decision being appealed

Who can appeal

Section

An employer’s decision relating to an interpretation of any provision of the Public Sector Management Act or regulations, concerning conditions of service of public service officers, other than salaries and allowances.

Public service officer *

80I(1)(a)

A decision or finding arising out of a substandard performance or disciplinary process under s 78 of the Public Sector Management Act.

Government officer *

80I(1)(b)

A decision or finding arising out of a substandard performance or disciplinary process under s 172 of the Health Services Act 2016.

Government officer *

80I(1)(c)

Any decision to dismiss, except for a decision to dismiss arising out of a substandard performance or disciplinary process referred to above.

Government officer *

80I(1)(d)

* or an organisation registered under the Industrial Relations Act on behalf of the officer.

 

What can the Public Service Appeal Board do?

The Board hears evidence and argument presented by the parties. It does not undertake its own investigation, so the parties have to present whatever it is they want the Board to consider.

The Board has power to ‘adjust’ the decision made by the employer. It is for the appellant to prove the employer’s decision should be adjusted. Note that the Board cannot award compensation for an employee who does not seek reinstatement: Insurance Commission v Johnson (1997) 77 WAIG 2169.

Based on its own findings of the facts and law, the Board may vary or uphold a decision of the employer. Procedural flaws in the employer’s process are relevant but are not necessarily determinative of the Board’s decision.

For more information on the nature of Public Service Appeal Board matters, see CSA v Department of Family and Children’s Services [2002] WAIRC 7213; (2003) 83 WAIG 390 [26].

What can’t the Public Service Appeal board deal with?

  • Decisions dealing with redeployment and redundancy, and termination of registered redeployees.
  • Mediation/conciliation

The Board only has power to ‘hear and determine’ appeals before it; it has no power to conciliate or mediate. If the parties believe mediation may assist them to reach agreement, or narrow the issues in dispute, they can use the Commission’s Employment Dispute Resolution service: http://www.edr.wairc.wa.gov.au/.

  • The Board cannot deal with the non-renewal of a genuine fixed term contract. That is because when an employee commences employment on a fixed term contract, they are taken to have consented to the employment ending after a period of time. The decision to not renew a fixed term contract cannot be reviewed by the Board. See Brocklehurst v Ministry of Justice (1994) 74 WAIG 2024.

Is there a time limit for matters to be referred to the Board?

Yes. An appeal must be commenced within 21 days after the date of the decision, finding, determination or recommendation. If the decision, finding, determination or recommendation is published in the Government Gazette, an appeal may be commenced within one month of the date of that publication. See regulation 107(2).

Calculation of time

If a decision, finding, determination or recommendation is made on, say, 1 June, the last day for commencing an appeal is 22 June, assuming they are both ordinary business days. If the final day is a weekend or public holiday, the following business day is the final day. See reg 4(3).

Can an employee lodge an appeal ‘out of time’?

Yes. Once the time limit has passed, an employee can still lodge an appeal. The appeal will be ‘out of time’, so the appellant must apply to have the appeal accepted out of time. The Registry can give appellants information about how to make an ‘out of time’ application. The Board decides this application.

When the Board is deciding whether to accept an appeal out of time, it is up to the appellant to satisfy the Board that strict compliance with the time limit will ‘work an injustice’. The Board will consider the following four principles, weighed together. The appellant does not necessarily have to satisfy every factor if one factor is extremely compelling. However, it will help their case if they can.

  1. Length of the delay

If the delay is relatively short, this will tend to indicate that the time limit will ‘work an injustice’, and will favour the appellant.

  1. Reasons for the delay

Importantly, the appellant must demonstrate two things:

(a) How the reason caused the delay; and

(b) Why compliance with the time limit would 'work an injustice' in light of the reason.

       Common reasons include:

  • Representative or adviser made a mistake

           When the delay is caused by the appellant’s representative, not the appellant themselves, this will favour the appellant.

  • Other steps to challenge the decision

          If the appellant was actively contesting the decision, other than by filing an appeal to the Board, this will favour the appellant.

          Other steps to challenge a decision can include mistakenly filing an application in one  of the Commission’s other constituent authorities, or writing to the employer to challenge

          the decision

  • Personal circumstances of the appellant

          If the appellant can show that the delay was caused by their personal circumstances and that it would ‘work an injustice’ to strictly comply with the time limit, this will favour the

          acceptance of the appeal out of  time. Inconvenience alone will probably not be adequate

 

  1. Whether the appellant has an arguable case

          The merits of the appeal are assessed ‘in a fairly rough and ready way’. This does not place any burden on the appellant. However, if the employer can establish that the appeal

           has no merit,

          it will be up to the appellant to show that the appeal does have merit.

 

  1. Prejudice to the employer

          If the employer can show that they would suffer prejudice if the appeal is accepted out of time, this will weigh against the appeal being accepted out of time. The prejudice must

           be more than the ‘prejudice of having to meet the proceedings.’

 

See Nicholas v Department of Education and Training[2008] WAIRC 1645; (2008) 89 WAIG 817.

See also Malik v Department of Education[2004] WASCA 51; (2004) 84 WAIG 683 [25].

 

How do I make an appeal to the Board?

The appellant files four copies of a Form 11 – Notice of appeal to Public Service Appeal Board (one for each Board member and one copy to serve on the employer). If the employee is a member of a union other than The Civil Service Association of Western Australia Incorporated, they should advise the Board in the application. The Board will then include a nominee of that union.

 

Once an appeal is filed, what happens?

  1. The appellant serves a copy of the appeal on the employer, and provides proof of service by filing a Form 4 – Statutory declaration of service.
  2. The Board's Associate may contact the parties to schedule a directions hearing, or may list the appeal for hearing.
  3. At the directions hearing, the Board may make programming orders or directions, to guide preparation for the hearing.  These may include providing for discovery, the preparation of witness evidence and outlines of submissions, a statement of agreed facts, and the venue for the hearing. 
  4. The employer may file a Form 5 – Notice of answer, in which it briefly answers the appellant’s Notice of appeal.  The Board might require this as part of the preparation for the hearing.
  5. At the hearing of the appeal, the employee and employer will each have an opportunity to present their case through witnesses and other material.  They will then have an opportunity at the end make a final submission.
  6. Once the hearing concludes, the Board is likely to take time to consider the evidence and make its decision, which will be issued in writing.  .   

 

Can a decision of the Public Service Appeal Board be appealed?

The Industrial Relations Act 1979 (WA) does not provide a right of appeal from decisions of the Board.

See Titelius v Public Service Appeal Board & Ors[1999] WASCA 19 [4].

 

Map of 18th Floor

Map of Level 18

Appeal by a Prison Officer or Youth Custodial Officer against their removal

Appeal by a Prison Officer or Youth Custodial Officer against their removal

Amendments made to the Prisons Act 1981 and the Young Offenders Act 1994 provide that a prison officer or a youth custodial officer who has been removed as a result of a loss of confidence process may appeal to the WA IR Commission (Commission) on the ground that the removal decision was harsh, oppressive or unfair.

In the case of a prison officer, the appeal is brought pursuant to s 106 of the Prisons Act 1981 here.

In the case of a youth custodial officer, the appeal is brought pursuant to s 11CH of the Young Offenders Act 1994 here.

The process of the appeal is the same for both a prison officer and for a youth custodial officer. Set out below is some preliminary information regarding the appeal process. It is intended as a guide only. You will need also to read the appeal rights as they are set out in the Act applicable to you, and the steps described in Part 9A or 9B of the Industrial Relations Commission Regulations 2005 here.

Commencing an appeal

The appeal is instituted by filing in the Commission within 28 days after the day the prison officer or youth custodial officer is removed 3 copies of:

Note that an appeal cannot be instituted more than 28 days after the day the prison officer or youth custodial officer is removed or if they have resigned.

Once it is filed

A copy of the filed Form with the appeal number and the stamp of the Commission will be returned to the appellant. The appellant must serve a stamped copy of the Form on the Chief Executive Officer of the Department of Corrective Services of WA (by personal delivery or by post) within 7 days after the Form has been filed. The appellant must then complete and file in the commission a Form 4 – Statutory Declaration of Service which certifies that the appellant has served it.

What happens next

The Chief Executive Officer is to file and serve on the appellant a Notice of Answer within 28 days of receiving the Form stating:

(i)   the Chief Executive Officer’s reasons for deciding to take removal action;
(ii)   a list of all documents that the Chief Executive Officer considered before making the decision
(iii)  

a summary of facts or issues of law relied upon by the Chief Executive Officer including any relevant matters set out in section 107(4) of the Prisons Act 1981 or section 11CI(4) of the Young Offenders Act 1994.

    and
(iv)  

a reply containing any matters the Chief Executive Officer wishes to raise in relation to the appellant’s case.

The Commission may then ask whether either the appellant or the Chief Executive Officer requests the appeal to go to conciliation. Conciliation will be before a member of the Commission who will not hear the appeal. It may take 2 – 4 weeks for conciliation to occur. Further programming of the hearing of the appeal will cease until it is known whether or not conciliation results in an agreed settlement of the appeal.

If there is no request for conciliation then within 14 days of serving the notice of answer, the Chief Executive Officer is to file 3 copies of every document relied upon by the Chief Executive Officer in the appellant’s case and serve it on the appellant. Within 14 days of receiving these documents, the appellant is to file 3 copies of every document relied upon by the appellant and serve it on the Chief Executive Officer.

Note that the Commission may direct that these times be varied if necessary, eg if there is conciliation occurring.

The Commission is likely to enquire how long the appellant and the Chief Executive Officer think they will need to present their respective cases (eg is it likely to take more than one day of hearing for both their cases? One day of hearing is usually between 10.30 am to 1.00 pm and 2.15 pm to 4.00pm).

The Commission will set the date the appeal itself is likely to be heard. This date will usually take into account the availability of the appellant or their representative, the
availability of the Chief Executive Officer’s representative, and the dates the Commission has available.

'New Evidence'

Section 108 of the Prisons Act 1981 and s 11CJ(1) of the Young Offenders Act 1994 mean that the appeal is to be heard and determined on the basis of the following documents —

(a)  

a document or other material that was examined and taken into account by the chief executive officer in making the removal decision;

(b)   the notice given under section 102(1);
(c)  

a written submission made to the chief executive officer by the prison officer under section 102(2);

(d)   a decision notice;
(e)   a notification of the removal;

If an appellant or the Chief Executive Officer wants the Commission to take into account any other document or evidence they will need to ask the Commission for permission (called ‘seeking leave’) to tender new evidence. Note that s 108 of the Prisons Act 1981 and s 11CJ(1) of the Young Offenders Act 1994 impose conditions on granting leave to tender new evidence.

An application seeking leave to tender new evidence is made by completing a Form 1 – Notice of application (general)(available here) and attaching to it a copy of the new evidence for which leave to tender is being sought.

After the application has been filed the applicant must serve a stamped copy of the application and the new evidence on the other party to the appeal (by personal delivery or by post). The applicant must then complete and file in the WAIRC a Form 4 – Statutory Declaration of Service which certifies that the applicant has served it.

The Commission will give the other party to the appeal time to consider it and to reply to the application. The other party to the appeal is to serve a copy of the reply on the applicant. The application to tender new evidence will then be listed for hearing and the Commission will hear the application and decide whether it will be granted.

Note that the appeal itself will not be able to be heard until after the application for leave to tender new evidence is decided by the Commission.

 

__________________________

 

Long Service Leave Provisions

LONG SERVICE LEAVE GENERAL ORDER

The Long Service Leave General Order, normally printed in this Gazette sub part, is no longer being produced because, with effect from 4 July 2006, that General Order was repealed by section 64 of the Labour Relations Legislation Amendment Act 2006. As a consequence of that amendment, any reference in an industrial instrument (Award, Order, Agreement etc) to the Long Service Leave General Order is to be read as a reference to the Long Service Leave Act 1958 (WA).

The Long Service Leave Act 1958 (WA), in lieu of the Commission’s General Order, now regulates long service leave for all Western Australian employees including those covered by Awards, EBA’s, Employer and Employee Agreements, or the Minimum Conditions of Employment Act 1993.

The Long Service Leave Act 1958 (WA) continues to have effect notwithstanding the changes to the (federal) Workplace Relations Act (Commonwealth) because that Act, at section 16(3)(f), allows the Long Service Leave Act 1958 (WA) to continue to have effect. Therefore the Long Service Leave Act 1958 (WA) applies to all Western Australian employees.

Click the following link to view the repealed Long Service Leave Provisions

REGISTRAR
2 January 2007

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 : mail reg

 

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