Details  Created: 06 August 2020

The Full Bench has unanimously dismissed an appeal against a decision of the Industrial Magistrates Court (IMC) exercising jurisdiction under the Fair Work Act 2009 (Cth) (FW Act). It found that it had no power to review a decision of the IMC exercising such jurisdiction.  

The appellant’s claims before the IMC sought to enforce entitlements alleged to arise from an award issued under the FW Act and entitlements under the National Employment Standards. He also suggested that one of the matters he pursued related to an employer-employee agreement and therefore fell under the Industrial Relations Act 1979 (WA).

The appellant claimed that the Industrial Magistrate denied him a fair hearing.

Although the appellant recognised that the Full Bench had no jurisdiction to deal with the substance of his claim under the FW Act, he argued that the Full Bench has the characteristics of a court and therefore can deal with his appeal as it relates to procedural fairness.

The Full Bench found that it does not have the power to review a decision of the IMC exercising jurisdiction under the FW Act, whether for the purpose of examining whether procedural fairness applied or for any other purpose.

The appeal was dismissed for want of jurisdiction.

Costs

The respondent sought costs on the basis that the appeal was frivolously and vexatiously instituted when the Full Bench had no jurisdiction to deal with it.

The respondent said it had alerted the appellant to the Full Bench’s lack of jurisdiction, pointed him to the Federal Court of Australia and invited him to discontinue the proceedings.

The appellant submitted there was no option for him to withdraw the application and there was no way out without a Full Bench decision.

The Full Bench found that there was nothing to prevent the appellant from seeking leave of the Full Bench to discontinue the hearing or withdraw the appeal. It noted that it is not in the interest of the parties, the Commission, or the public for matters to proceed to their conclusion merely because it had been commenced.

However, the Full Bench found that there was no suggestion that the appeal was instituted frivolously or vexatiously by the appellant. It considered the difficulty of lay persons to navigate through a less than straightforward appeal process, from a State court to a Commonwealth one.

The application for costs was dismissed.

The decision can be read here.