Western Australian Industrial Relations Commission

Interim orders for reinstatement beyond Industrial Magistrate's powers, but not appellable

The Full Bench dismissed an appeal against interim orders of the Industrial Magistrate's Court. The interim orders, among other things, required the reinstatement of an employee. The majority of the Full Bench held that for an appeal against a decision of Industrial Magistrate's Court to be competent, it must be against a decision as defined by s 84(1) of the Industrial Relations Act 1979.

The majority of the Full Bench affirmed the decision in Anderson v Pope. In that decision, the Industrial Appeal Court held that a decision of the Industrial Magistrate that does not finally determine the application before it does not constitute a decision from which an appeal will lie under s 84(1).

For a decision to be a 'decision' under s 84(1), it must finally determine the rights of the parties and require a court in determining this question to have regard to the legal rather than the practical effect of the order. Given that the interim orders were made provisionally during the course of the legal action, the A/President and Senior Commissioner were not satisfied that the orders were a 'decision'.

The majority of the Full Bench observed that if they were wrong about the appeal being incompetent, they would have ordered that the decision be quashed as the Industrial Magistrate's Court does not have the power to reinstate employees. The power to reinstate an employee is conferred exclusively on the Commission.

Commissioner Matthews (dissenting) found that the appeal was competent. He analysed the history of the legislative amendments in light of Anderson and concluded that the application for interim orders was a separate application, there was a discrete hearing on the matter and that orders made in such an application must be appealable. He agreed with the majority that the Industrial Magistrate's Court had no power to make the orders it made.

The Full Bench noted that the appellant could apply to the Industrial Magistrate's Court to revoke the offending interim orders on the grounds that they are beyond the power conferred on the Industrial Magistrate's Court by the Act.

The decision can be read here.

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