Western Australian Industrial Relations Commission

Appeal to Full Bench

The Relevant Law

The relevant law for these matters is the Industrial Relations Act 1979 and the Industrial Relations Commission Regulations 2005.

There are other areas of law which you may need to examine to proceed with your appeal. 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, or at  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 legislation and use related and significant case references.

Step One - Filing a Notice of Appeal

A Form 8 - Notice of Appeal Against a Decision Made by the Commission or the Industrial Magistrates Court is made against the decision of a single Commissioner (s 49 of the Industrial Relations Act 1979) or against the decision of an Industrial Magistrate (s 84 of the Industrial Relations Act 1979) and is heard by the Presiding Commissioner (either the Chief Commissioner or the Senior Commissioner) 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 Industrial Relations Act 1979). The date of the decision is taken to be the date when the decision is sealed by the Commissioner and deposited in the Commission’s Registry. In the case of a decision of an Industrial Magistrate, the date of the decision is the date it was delivered.
  • When completing the Form 8, 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 8.
  • The Form 98needs 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 8 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 included in the Form 8. 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 8 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 8 will not be accepted for filing.

Once you have filed your Form 8, you must then, within 14 days, file and serve your appeal books (see reg 102(10) of the Industrial Relations Commission Regulations 2005).

An appeal book must contain:

  • a copy of the Form 8;
  • 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 submissions, 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 Chief Commissioner has directed that an appeal book is to contain a contents page, and that all pages within the appeal book are numbered.

The 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 Industrial Relations Commission Regulations 2005. 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.

Filing an Appeal Outside of 21 Days

A person who has failed to file a Form 8 within 21 days of the decision may still be able to file an appeal, provided they also file an application seeking an extension of time. An extension of time application is made on a Form 1A - Multipurpose Form.

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 include grounds 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.

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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