Western Australian Industrial Relations Commission

Full Bench considers change of law in appeal

The Full Bench has unanimously found that the Industrial Magistrates Court had no jurisdiction to enforce the Shop and Warehouse (Wholesale and Retail Establishments) State Award 1977 (Award) under s 83(1)(e) of the Industrial Relations Act 1979 (WA) where the Industrial Magistrate relied on a declaration of the Commission that has since been varied. 

The appellant had appealed against the dismissal of her claim for overtime payments on the contention that she was entitled to be paid overtime for additional hours of work. The appellant argued that the Industrial Magistrate erred in her construction of the relevant provisions of the Award. Despite the grounds of appeal being limited in scope to this issue, another matter arose for consideration by the Full Bench. 

The Industrial Magistrate’s decision at first instance proceeded upon the understanding that, at that time, the Commission had issued a declaration in another matter (Samuel Gance) that the Award applied to both employers and employees in the retail pharmacy industry, which meant both the appellant and respondent were covered by it.  

The declaration in Samuel Gance was subject to a separate appeal to the Full Bench. The Full Bench upheld the appeal and the declaration made by the Commission, that the Award applied to the retail pharmacy industry, was reversed. The effect of the reversal is that from April 1995, the Award must be taken to have ceased to have application to the retail pharmacy industry.

Due to this, the Full Bench considered the effect of the Samuel Gance Full Bench decision on the decision of the Industrial Magistrate and this appeal.

The appellant contended that an appeal to the Full Bench under s 49 of the Act, which refers to appeals from the Commission’s decisions, is to be heard as a strict appeal. An appeal in the strict sense, in determining whether the court made an error, is limited to considering the evidence and law as it stood at the time of the proceedings at first instance before the court and at the time of court’s decision. It does not, except in rare circumstances, consider any changes of law or new evidence.

The respondent submitted that the effect of the decision of the Full Bench in Samuel Gance in reversing the declaration does apply to the case at hand. The respondent contended that the Full Bench is to hear the appeal as a rehearing, which means it can consider other material and is required to apply the law as it stands when it hears and determines the appeal. The respondent relied on s 84(4) of the Act, which empowers the Full Bench to vary or amend the decision of the Industrial Magistrates Court.

In its consideration of s 49 of the Act, the Full Bench noted that existing case law did not expressly conclude whether an appeal under s 49 is a strict appeal or a rehearing. On application of existing case law and legal principle, the Full Bench ultimately concluded that, whilst not expressed in the statute, an appeal to the Full Bench under s 49 involves a rehearing. It is for the Full Bench is to reach its own view on all the evidence and the materials before the Commission, subject to error at first instance being established.  

In the Full Bench’s consideration of s 84 of the Act, it was noted that appeals to the Full Bench under that section from a decision of the Industrial Magistrates Court proceed largely in the same manner as do appeals from the Commission. As with appeals to the Full Bench under s 49 of the Act, appeals to the Full Bench under s 84 should also be considered as a rehearing. Importantly, as with s 49, on an appeal under s 84, error, of either law or fact or both, must be established for the Full Bench to invoke its powers under s 84(4).

The Full Bench found that the current law, in terms of the application of the Award to the retail pharmacy industry, must now be taken to be in accordance with the declaration made by the Full Bench and to operate in accordance with its terms. The Full Bench was bound to apply the declaration to the effect that the Award does not extend to the retail pharmacy industry, and therefore that the Award did not apply to the appellant and the respondent at all material times. The Full Bench found that the appellant had no standing to seek enforcement of the Award.

The decision can be read here.

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