The Public Service Appeal Board (Board) has dismissed an appeal, where the appellant failed to attend hearings and delayed the progression of the matter. 

Background

The appellant referred the respondent’s decision to dismiss her to the Board on 18 February 2021.  The appellant was notified of the decision to terminate her employment on 15 January 2021. The referral was not accepted by the Commission’s Registry until 2 March 2021 as the initial referral submitted by the appellant was not compliant with the requirements of the Industrial Relations Commission Regulations 2005 (WA).

The respondent submitted that the appeal was without merit and opposed the Board granting an extension of time to the appellant. On 12 May 2021, the respondent subsequently applied to the Board dismiss the appeal because the parties had reached a binding settlement agreement and asserted that the Board should refrain from hearing the matter.

The appellant opposed the respondent’s interlocutory application on the basis that her representative had not fully informed of the terms and she had not authorised her representative to consent to the terms of the settlement.

A hearing was scheduled to hear and determine the respondent’s interlocutory application for an order to dismiss the appeal on the basis that the parties have reached an agreement. The hearing was adjourned at the request of the appellant. The appellant confirmed she wished to proceed with the appeal, and a second hearing was scheduled. The appellant failed to appear at the hearing.

The Board directed that the appellant show cause why her appeal ought not be dismissed for want of prosecution. A show cause hearing was subsequently listed, of which the appellant also did not appear.

Findings

The Board was satisfied that the appellant has been served with notice of the proceedings. The Board was also satisfied that the appellant was aware that, if she did not appear, that the matter would be dismissed. 

The Board considered that the appellant had not provided an explanation for the delay caused by failing to appear. The Board considered that the appellant’s failure to attend hearings and delay in progressing the matter would prejudice the respondent if allowed to continue and dismissed the appeal. 

The decision can be read here.

The Industrial Appeal Court has clarified the meaning of the phrase ‘on a site’ and the word ‘site’ in the definition of ‘construction industry’ in s 3(1) of the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) (the Act). The IAC dismissed the appeal, upholding the decision of the Commission at first instance and Full Bench on appeal, which related to an application for a review of a decision of the Construction Industry Long Service Leave Payments Board (the Board) that required the appellant to register as an employer under the Act.

First Instance

The appellant, who provides maintenance services under contract at established operational locations such as mines and processing plants, argued that it should not be obligated to register as an employer with the Board because they do not engage employees in the ‘construction industry’.

The principal issue raised in the proceedings at first instance was whether the appellant’s employees, who perform work on its clients’ premises, do so ‘on a site’ for the purposes of the definition of ‘construction industry’ in s 3(1) of the Act.

Chief Commissioner Scott, as she then was, concluded that the work performed by the appellant’s employees was performed ‘on a site’ within the definition of ‘construction industry’. Scott CC rejected the appellant’s principal contention that ‘on a site’ and ‘on site’ where used in the Act, means a ‘building site’ or a ‘construction site’. She held that on its proper construction, the words “on a site” meant at a place at which any of the activities of subpars (a)(i) through to (xvii) of the definition of “construction industry” were being performed. The application was dismissed.

The decision at first instance can be read here.

Appeal to the Full Bench

The matter was taken on appeal to the Full Bench of the Commission. Ten grounds of appeal were raised by the appellant. Senior Commissioner Kenner, as he then was, delivered the primary reasons, with Commissioner Matthews and Commissioner Walkington agreeing.

The appellant contended that Scott CC failed to have regard to the rules of statutory construction in the interpretation of several expressions, including ‘site’ and ‘construction industry’.

The appellant further argued that Scott CC failed to properly apply and follow the decision of Aust-Amec Pty Ltd t/a Metlabs & SRC Laboratories and Others v Construction Industry Long Service Leave Payments Board (1995) WASC 718. It also contended that Scott CC failed to have regard to the mischief to which the Act was aimed to address.

The appellant argued that Scott CC erred in law when finding that ‘on a site’ or ‘site’ in the definition of ‘construction industry’ in s 3(1), is not limited to mean a ‘construction site’ or a ‘building site’. The appellant submitted that the meaning of ‘site’ being a ‘construction site’, is a more natural constraint on the language used.

The Full Bench determined that no error in law had occurred in the decision reached by Scott CC. The Full Bench concluded that Scott CC had regard to the context and purpose of the Act, and correctly concluded that the statutory text must prevail in the case of any inconsistency.

The appeal was dismissed. The decision can be read here.

Appeal to the Industrial Appeal Court

The matter was taken on appeal to the Industrial Appeal Court. The appellant argued that the Full Bench erred in interpreting the term 'site' appearing in the definition of 'construction industry' in s 3 of the Act as a place or location at which things occur rather, than as meaning a construction site. The appellant contended that the Full Bench should have taken the word ‘site’ to be a construction or building site.

Buss and Murphy JJ considered that the appellant’s proposed meaning of the word site was not justified by the text, context, or purpose of the Act, and that it left no scope for the word 'site' to include an area on which building or infrastructure works are already situated. Their Honours held that it was further inconsistent with the effect of subpar (xvii) of par (a) of the definition of 'construction industry' in s 3(1). Their Honours further held that the phrase 'construction industry' has no fixed ordinary meaning, and that the appellant's reliance on its industry, did not clarify the proper construction of the word 'site' in par (a) of s 3(1).

Kenneth Martin J considered that the meaning of the word ‘site’ that was contemplated by Scott CC and the Full Bench on appeal was open in the circumstances, and that the alternative meaning put forward by the appellant was not supported.  Hi Honour considered the five reasons that the appellant provided for their preferred interpretation, finding that the appellant’s suggested meaning was put forward to suit the appellant’s economic circumstances and that it was ‘ill-fitting, measured against the text of the statutory definition used by the Act’.

Kenneth Martin J held that Scott CC and Kenner SC, in the decision of the Full Bench, were correct in their interpretation of word ‘site’ and the phrase ‘on a site’. His Honour held that the word was used as a reference to the activities in the preface of subpar (a), as they are carried on at the places as identified under (i) to (xviii) in the second limb of subpar (a) of the definition of 'construction industry'.  It was not limited to merely a reference to a construction site or building site.

The appeal was dismissed.

The full decision can be read here.