Western Australian Industrial Relations Commission

Full Bench finds grounds of appeal obscure and misconceived

The Full Bench has dismissed an appeal against a decision of the Commission where a restricted legal practitioner was successful in a claim of denied contractual benefits. The Full Bench considered that a discretionary decision of a Commissioner at first instance can only be challenged by showing error in the decision-making process, and even then, the Full Bench must only proceed with caution and restraint.

The appellant’s first ground of appeal had two parts and related to order 1 of the Commission. In relation to the first part, the Full Bench noted that the appellant said that he did not deny that he owed payment to the respondent but that he was waiting on the respondent to provide him with an invoice in accordance with the parties’ agreement. The Full Bench found that this ground of appeal was misconceived by the appellant because the payment of the amount due does not rely on an invoice being issued by the respondent, it relies on compliance with an order of the Commission. The Full Bench then considered the second part of the first ground of appeal, where the appellant claimed that the Commission had erred in law by concluding that the then applicant was at all times protected by the Minimum Conditions of Employment Act 1993 (MCE Act) “yet had failed to recognise the provision that employees are not entitled to annual leave if they are paid by commission only”. The Full Bench found that the Senior Commissioner concluded that the MCE Act did not apply to the appellant’s employment and rather referred to the MCE Act, the Fair Work Act 2009 (Cth) and the “universal entitlement in awards and industrial agreements across the land” as a basis for implying terms into the employment contract, and so did not err in law. The Full Bench found that the appellant had misunderstood the reasons for decision of the Senior Commissioner and dismissed this ground of appeal.

The second ground of appeal dealing with order 2 was next considered by the Full Bench. The Full Bench found that the appellant’s claim, that he is unable to comply with the order because the Senior Commissioner “retrospectively” changed the employment relationship and the appellant is not registered with the Australian Tax Office (ATO), was also misconceived. The Full Bench dismissed this ground of appeal and found, as in ground 1, that there was no obligation on the respondent to provide an invoice and that the issue relating to the ATO is a matter of practicality for the appellant to seek advice about and not a matter properly the subject of this appeal.

The Full Bench made comment on what appeared to be a tardy approach to the appeal by the appellant. The appeal book was less than satisfactory and did not comply with the Industrial Relations Commission Regulations 2005 in a number of instances.

The respondent sought that the Full Bench award his costs and expenses (excluding legal fees) for the appeal and the matter at first instance. The general policy in industrial jurisdictions is that costs are only awarded in extreme circumstances and could not be awarded for matters heard at first instance. The Full Bench found that it was very clear that the appeal had no prospect of success as the grounds for appeal were both obscure and misconceived. The Full Bench found that it could not award costs for the appeal because the only date on the schedule of costs submitted by the respondent was on a date that had not yet occurred.

The decision can be read here.

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