Western Australian Industrial Relations Commission

Appeal has no practical consequences for either of the parties

The Western Australian Industrial Appeal Court (the IAC) has unanimously dismissed an appeal against a decision of the Full Bench of the Western Australian Industrial Relations Commission where the appellant sought to pursue a moot appeal about whether an interim order of an Industrial Magistrate’s Court was considered to be a ‘decision’ within the meaning of s 84(1) of the Industrial Relations Act 1979 (WA).

In the case at first instance, the industrial magistrate issued the interim orders sought by the State School Teachers’ Union of WA (SSTUWA). The appellant appealed this decision to the Full Bench where the majority found that the appeal did not meet the s 84(1) requirement of a decision because an interim order did not finally determine the issue. The Full Bench dismissed the appeal on the ground that the appeal was incompetent.

Following the Full Bench decision, but prior to the institution of the appeal to the IAC, the parties settled the matter and the SSTUWA discontinued its claim. However, although the underlying dispute was resolved between the parties and the interim orders dissolved, the appellant continued to seek that the IAC exercise its discretion to hear the appeal. The basis of the appellant’s claim was that the scope of the appeal is narrow and that there is a public interest in resolving the s 84(1) construction issue of whether a decision under this section extends to encompass interim orders.

The IAC accepted that although the scope of the appeal was narrow, the answer to the question raised is not obvious and would require a detailed examination of a number of factors.

It was then considered by the IAC whether a resolution of the issue would be in the public interest and if there would be any ramifications extending beyond the facts of the case. The IAC found that although it had discretion to hear the appeal, this discretion should be exercised cautiously. As no sufficient case for the exercise of this discretion had been made out, the IAC dismissed the appeal on the ground that it had become moot.

The IAC also commented on whether an appeal of an industrial magistrate’s interim order lies to the Full Bench. Notably, although stopping short of making a finding, the IAC suggested that on the face of s 84(1) an interim order is “an order” and falls within the definition of a decision. This suggests that an interim order of the Industrial Magistrate’s Court may be able to be appealed.

The decision can be read here.

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