2000 WAIRC 00002

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES ST MICHAEL'S SCHOOL V THE INDEPENDENT SCHOOLS SALARIED OFFICERS' ASSOCIATION OF WESTERN AUSTRALIA, INDUSTRIAL UNION OF WORKERS

HEARD FULL BENCH

    HON PRESIDENT PJ SHARKEY

    COMMISSIONER WS COLEMAN

    COMMISSIONER SJ KENNER

DELIVERED  TUESDAY, 4 JULY 2000

FILE NO/S  FBA 22/2000 

__________________________________________________________________________
 

Result

Appeal dismissed.

Representation

Appellant  Ms D L Peters (of Counsel), by leave

Respondent  Mr A D Gill (of Counsel), by leave

________________________________________________________________
 

REASONS FOR DECISION

THE PRESIDENT: 

1       These are the unanimous reasons for decision of the Full Bench.  This is an appeal against, it would seem, the whole of the “decision” of the Commission, constituted by a single Commissioner, given on 15 March 2000 in matter No CR177 of 1999 and is brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).

2       The Commission issued reasons for decision on 15 March 2000 on a preliminary point of jurisdiction.

GROUNDS OF APPEAL

3       The grounds of appeal are expressed as follows:-

 “1 The Commission erred in law in finding that it had jurisdiction to hear the claim as the claim seeks, in effect, enforcement of the Independent Schools Administrative and Technical Officers Award 1993 (“the Award”) in a manner within the exclusive jurisdiction of the Industrial Magistrate pursuant to section 83 of the Industrial Relations Act 1979 (“the Act”).

 2 The Commission erred in law in finding that it had jurisdiction to hear the claim as the claim seeks, in effect, a bare declaration of the true interpretation of the Award, which may only be made upon an application under section 46 of the Act.

   PUBLIC INTEREST

  The reasons that this appeal raises matters of such importance that in the public interest an appeal should lie, include:

  (a) the appeal raises issues relating to the Commission’s jurisdiction to determine the appropriate level of classification of employees under awards, an issue which has not been settled by the Commission; and

  (b) the issues relating to the Commission’s jurisdiction to determine matters of this nature have general application, extending beyond the affairs of the parties and the teaching industry.”

Is there a Decision?

4       A very real question arises as to whether there is a decision to be appealed against within the meaning of s.7 and s.49(1) of the Act, and having regard to s.34, s.35 and s.36 of the Act.  The Full Bench invited submissions on this point and received helpful submissions from Ms Peters and Mr Gill.

5       The reasons for decision at first instance were not signed as they normally are not, nor do we suggest should be.  This appeal purports to be against the “finding” expressed in those reasons, namely that the Commissioner has and had jurisdiction to hear and determine the matter.

6       The appeal is expressed to be against a “decision” of the Commission.  There is, in the Appeal Book, nothing in the shape of an award, order or declaration; in particular, as referred to in s.34 of the Act.  There is nothing in the shape of a decision perfected as required by s.36 of the Act (see Registrar v MEWU 73 WAIG 1227).

7       What occurred was that the Commissioner made a “finding” that he had jurisdiction to hear the matter and returned the matter to the list for hearing and determination.  It is against that “decision” that the appellant now appeals.

BACKGROUND AND ISSUES

8       Further and alternatively, we turn to the merits of the appeal.

9       At first instance, the applicant organisation of employees, which is respondent to this appeal, filed an application in this Commission on 23 June 1999.  The respondent to that application (the appellant in these proceedings) was, at the material time, the employer of Mrs Delerine Murray.  The appellant (although it is not certain as to what sort of entity it is) conducts an independent school.  It is accepted by the parties that they are bound by the Independent Schools Administrative and Technical Officers Award (hereinafter referred to as “the award”).

10       The matter was referred to the Commission for hearing and determination pursuant to s.44(9) of the Act in the following terms:-

  “The parties are in dispute over the classification level within the Independent Schools Administrative and Technical Officers Award 1993 assigned to Mrs Delerine Murray since 2 November 1995 given the nature of the duties undertaken in the performance of Mrs Murray’s employment at St Michael’s School.  The union seeks an order that the appropriate level of classification for Mrs Murray under the Independent Schools Administrative and Technical Officers Award 1993 since 2 November 1995 is at Level 4 of the award.

  The respondent objects to and opposes the claim and seeks an order that the application be dismissed for want of jurisdiction.”

11       The question is whether there is a decision capable of being appealed against within the meaning of s.49 of the Act.

12       There is no right to appeal to the Full Bench under s.49 of the Act unless the appeal is “in the manner prescribed from any decision (our underlining) of the Commission” (see s.49(2) of the Act).

13       A “decision” of the Commission is defined in s.7 of the Act as follows:-

  “includes award, order, declaration or finding”

14       A “finding” is defined as a decision and itself is defined in s.7 of the Act as follows:-

  “means a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate”

15       It is trite to observe that an appeal lies to the Full Bench from a finding of the Commission, constituted by a single Commissioner, which is a “decision”, as defined in s.7 of the Act.

16       The Commissioner’s determination was a “finding”, as defined in s.7 of the Act, and therefore, ipso facto, a “decision” of the Commission, as defined in s.7 of the Act.  It was so, in any event, because it was, as defined, a decision, determination or ruling made in the course of the proceedings which did not finally decide, determine or dispose of the matter.

17       It is quite clear that the decision was not a “decision”, produced in the form of an award, order or declaration, as is mandatorily required by s.34 of the Act  (see CMEWU v UFTIU 70 WAIG 3913 (IAC) particularly per Rowland J).  Nor was the decision signed and delivered by the Commissioner constituting the Commission, as is the mandatory requirement of s.34 of the Act.

18       Next, this decision, not being an order, direction or declaration under s.32 of the Act or an order for dismissal as was mandatorily required by s.35, before it was delivered to be drawn up in the form of minutes and given to the parties concerned.  After that, the parties concerned were entitled to speak to matters contained in the minutes.  The parties concerned did not consent to a waiver of those mandatory requirements of s.35 of the Act (see RRIA v AMWSU (1989) 69 WAIG 991 at 996-999 (IAC) per Nicholson J).

19       A finding, of course, as defined in s.7 of the Act, is distinguishable from reasons for decision or findings which constitute merely one part of the reasons for decision or which are evidentiary or procedural rulings made in the course of hearing a matter (see Western Mining Corporation Ltd v CMEWU (1989) AILR 399, see also CEEEIPPU v BHP Iron Ore Pty Ltd (unreported) (No FBA 11 of 2000) delivered 2 June 2000 per Sharkey P at pages 10-11).

20       The determination of whether the Commission has jurisdiction or not is clearly a finding, as defined.

21       Next, there is no decision, as required, bearing the Commission’s seal and recorded as having been deposited in the office of the Registrar (see s.36 of the Act).

22       We now turn to the effect of those omissions.

23       However, first it is necessary to consider the law.

24       In CMEWU v UFTIU (IAC)(op cit), the Industrial Appeal Court considered whether a “finding” by the Full Bench amounted to a decision against which an appeal lay under s.90 of the Act, when no formal order had been extracted.  That is the question which arises here.  In that case, Rowland J held, at page 3914, that s.34(1) of the Act makes it mandatory that the decision shall be in the form of an award, order or declaration and shall be signed and delivered by the Commissioner constituting the Commission.  He also held that, by s.36 of the Act, every decision shall be sealed, deposited in the office of the Registrar and open to inspection.

25       Cogently, His Honour observed that, until there is a decision which is in the form and has been processed in accordance with s.36 of the Act, there is no decision upon which s.90 can operate.  (Equally, such an observation is applicable to s.49 of the Act.)  His Honour observed that that was consistent with the reasons of the majority (Brinsden and Kennedy JJ) in McCorry v Como Investments Pty Ltd 69 WAIG 1000 (IAC).  In that case, His Honour held that, since the finding was not “processed” in the way provided in s.34 and s.36 of the Act, it was not a “decision” which can be the subject of an appeal under s.90 of the Act.  The appeal was, therefore, incompetent.  Walsh J reached the same conclusion at page 3917, as did Kennedy J at page 3918.

26       In Registrar v MEWU and Others 74 WAIG 1487 (IAC), the question was whether an interim order, dated 19 June 1992, had or had no effect until 23 September 1992, the date of its depositing in the Registrar’s office.  In that case, Kennedy J said that the decision of the Commission is a document to be signed and delivered.  Rowland J agreed with Kennedy J, but also indicated that he took the view which he took because McCorry v Como Investments Pty Ltd (IAC)(op cit) and CMEWU v UFTIU (IAC)(op cit) had not been distinguished on the facts.  Franklyn J dissented.

27       We were also referred to Fisher Catering Services Pty Ltd v ALHMWU 77 WAIG 611 (IAC).  In that case, reasons for decision had issued, but no formal award, order or declaration had issued, nor had s.34(1), s.35 and s.36(a) of the Act been complied with.  Significantly, Their Honours were not taken to Registrar v MEWU and Others (IAC)(op cit) and CMEWU v UFTIU (IAC)(op cit) or, if they were, there is certainly no mention of those cases in the authorities referred to.  Anderson J was of opinion that McCorry v Como Investments Pty Ltd (IAC)(op cit) did not stand for the proposition that a decision is not a “decision” unless it is a decision in respect of which all of the requirements of s.34, s.35 and s.36 of the Act have been complied with.

28       Scott J held that the decisions made were decisions of a preliminary nature, and that appeals against findings could not lie under s.90 of the Act to the Industrial Appeal Court.

29       In our opinion and with respect, nothing has been said sufficiently to the contrary in Fisher Catering Services Pty Ltd v ALHMWU (IAC)(op cit) to overrule the ratio decidendi expressed by the reasons for decision of all judges in CMEWU v UFTIU (IAC)(op cit) that failure to comply with s.34, s.35 and s.36 of the Act meant that there was no decision, as defined, and that the appeal in that case for that reason was incompetent.  Further, the reasons for decision in Fisher Catering Services Pty Ltd v ALHMWU (IAC)(op cit) do not detract from the “minimal” view of Kennedy J in Registrar v MEWU and Others (IAC)(op cit) that a decision is a document to be signed and delivered.

30       That was a view repeated by Rowland J in Registrar v MEWU and Others (IAC)(op cit) and, in part, dealt with by Kennedy J, who held that a decision for the purposes of s.90 of the Act should be written, signed and delivered.

31       In this case, no decision was written, signed or delivered, nor was it in the form of an award, order or declaration.  The reasons for decision cannot constitute, for those reasons, an award, order or declaration.  There must be a separate document written, signed and delivered.

32       Nor could such a decision escape on the basis that it was a finding which could or should be expected to be dealt with in reasons for decision (see Fisher Catering Services Pty Ltd v ALHMWU (IAC)(op cit) per Scott J at page 614).

33       Next, this was the sort of finding as to jurisdiction which was within the definition of “finding” and “decision” in s.7 of the Act (see CEEEIPPU v BHP Iron Ore Pty Ltd (FB)(op cit)).

34       There was no competent appeal because there was no “decision” against which an appeal could lie pursuant to s.49(1) of the Act.  There was no decision because s.34 and s.36 of the Act were not complied with.  There was no statutory valid decision because s.35 of the Act was not complied with.  Thus, there was no decision because:-

(a) This was a “finding” which was a “decision”, as defined.

 (b) No decision was committed to writing.

 (c) No decision was committed to the form of an award, order or declaration.

 (d) No decision was signed or delivered.

 (e) No decision was sealed or deposited in the office of the Registrar.

35       Even if that were wrong, we are not persuaded that the Full Bench should give leave to appeal pursuant to s.49(2a) of the Act because the decision sought to be appealed against was of “such importance that, in the public interest, an appeal should lie” (see RRIA v AMWSU 69 WAIG 1873 (FB)).  We say that because, whilst a question of jurisdiction will generally come within the meaning of that phrase, this question was one of the type plainly and clearly considered in and subject to the ratio in Crewe and Sons v AMWSU (1989) 69 WAIG 2623 (FB) as explained in J-Corp Pty Ltd v ABLF (1993) 73 WAIG 1185 at 1188 (FB).  We say that for the reasons which we express hereinafter.

36       It was also, with respect, a case which, in our opinion, was readily answerable by recourse to those decisions and the cases referred to therein.

37       The appellant’s argument was that the order sought was an order to interpret or enforce an award, in which case the proceedings should have been brought under s.46 of the Act or s.83 of the Act, respectively.

S.46 and s.83 of the Act

38       The appeal turns upon the nature of the order sought by the applicant organisation at first instance.  That application is for:-

  “An order that Mrs Murray be classified at Level 4.”

39       The facts, as found by the Commissioner, were that the respondent’s member was employed by the appellant and classified at Level 3 of the award.  Levels 3 and 4 are both defined in Clause 13 – Classifications of the award.

40       The Commissioner held that the order sought by the appellant could not be said to be an enforcement of the award in the manner cited in Crewe and Sons v AMWSU (FB)(op cit) and explained in J-Corp Pty Ltd v ABLF (FB)(op cit).  We would observe, too, that the Commissioner correctly found that the order sought would not require the appellant to comply with its obligations under the award; nor was such an order sought.

41       The respondent made it clear that the dispute concerned what classification should apply to the duties performed by Mrs Murray.  The order would not, of itself, require the employer to pay her at that rate.   The order would require that she be classified for the purposes of her employment under the award as a Level 4 employee.  The dispute was as to whether that is her classification.

42       Its resolution required a finding of fact as to her duties and the application of the terms of the award (perhaps involving its interpretation) to those duties, to determine whether her classification should be as a Level 4, not a Level 3, employee, and whether the order sought should therefore issue.

43       There was clearly no attempt to enforce an order to pay the monies or indeed to enforce the award.  The matter involved a determination of what classification under the award applied to an employee.  The order, as the Commissioner correctly observed, did not seek to compel the employer to do anything.  Clearly, if the respondent was successful in obtaining the order and Mrs Murray was not paid what a Level 4 employee should be paid under the award, then the award would be enforceable in the Industrial Magistrate’s Court, pursuant to s.83 of the Act.

44       Quite plainly, therefore, the order sought was not an order for enforcement because it does not seek the enforcement of existing rights, it did not allege a breach of an award, it was not a claim for a liquidated amount said to be due under the award and to be determined according to existing legal rights.  The nature of the order sought was a decision as to the future rights, conduct and obligations of the parties and of an employee and that is the essence of arbitration.  Further, which is the essence of industrial arbitration, the question ultimately was what was right and fair, particularly to the employee (see Crewe and Sons v AMWSU (FB)(op cit) at page 2627 and Re Cram and Others; Ex parte Newcastle Wallsend Coal Co Pty Ltd 163 CLR 140, see also Health Services Union of Australia v Dorevitch Pathology (unreported) (No C32827 of 1999) delivered 8 February 2000 (AIRC)).

45       The nature of the application and the order sought, for those reasons, is not one of enforcement but arbitral.

46       Further, for the reasons correctly expressed by the Commissioner at first instance, in any event, the matter is one which should unequivocally be dealt with under s.44 of the Act.  (In any event, the award itself reflects the statutory requirement that a dispute resolution provision be included in awards.  In the case of the subject award (see the appendix to the award) the requisite procedure requires that, with respect to any question, dispute or matter under the award, it shall be addressed in terms of that procedure, and may in turn be referred to this Commission.)

47       We now turn to s.46 of the Act.  The Commissioner observed that the order did not, of itself, interpret a provision of the award (see page 19 of the appeal book).  What was involved was a finding of fact as to the duties of Mrs Murray, followed by a finding that those duties entitled the respondent organisation to an order that she be henceforth classified at Level 4 in accordance with those duties.

48       Of course, if the facts do not warrant it, then the respondent is not entitled to an order.

49       The Full Bench has already observed that there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments.  A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation.  The formation of views and opinions on matters of interpretation in arbitral proceedings does not, of itself, amount to a usurpation of judicial power (see Crewe and Sons v AMWSU (FB)(op cit) at page 2627).

50       We would observe that the making of a binding declaration of rights is an instance of the exercise of judicial power and is expressly conferred by s.46 of the Act.  What was asked to be done here was that the Commission form an opinion as to the terms of the award on the way to determining whether it should make an order as to what was right and fair to regulate the future conduct of the parties, particularly that of the appellant vis à vis Mrs Murray.

51       That is why the decision in Sisters of Mercy Perth (Amalgamated) and Another (1999) 79 WAIG 3458 is distinguishable.

52       This matter was quite clearly a matter where the order sought was an arbitral order.  The true nature of the order sought is an order within jurisdiction and power under s.44 of the Act.

53       We would add that the distinction between judicial and arbitral powers has not the same significance under the Act as it does in Federal matters, save and except that s.44 requires the Commission to exercise arbitral power.  S.46 of the Act confers a separate judicial function and s.83 confers a separate judicial junction on a member or members of the Commission and jurisdiction on the Industrial Courts which is not conferred on the Commission.

54       S.46 and s.83 of the Act did not and could not apply for those reasons.

CONCLUSION

55       The application made and the order sought were clearly and unequivocally within jurisdiction and power.  We do not find the appeal competent or otherwise made out, for those reasons, and would dismiss it.

Order accordingly

2000 WAIRC 00002

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES ST MICHAEL'S SCHOOL V THE INDEPENDENT SCHOOLS SALARIED OFFICERS' ASSOCIATION OF WESTERN AUSTRALIA, INDUSTRIAL UNION OF WORKERS

HEARD FULL BENCH

    HON PRESIDENT PJ SHARKEY

    COMMISSIONER WS COLEMAN

    COMMISSIONER SJ KENNER

DELIVERED  TUESDAY, 4 JULY 2000

FILE NO/S  FBA 22/2000 

__________________________________________________________________________
 

Result Appeal dismissed.

Representation

Appellant  Ms D L Peters (of Counsel), by leave

Respondent  Mr A D Gill (of Counsel), by leave

________________________________________________________________
 

ORDER

This matter having come on for hearing before the Full Bench on the 19th day of June 2000, and having heard Ms D L Peters, (of Counsel), by leave, on behalf of the appellant and Mr A D Gill (of Counsel), by leave, on behalf of the respondent, and the Full Bench having reserved its decision on the matter, and reasons for decision being delivered on the 4th day of July 2000 wherein it was found that the appeal should be dismissed, it is this day, the 4th day of July 2000, ordered that appeal No FBA 22 of 2000 be and is hereby dismissed.

 By the Full Bench

        PRESIDENT