100423082

WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES’ COURT

PARTIES MARK DONALD BAILEY

CLAIMANT

 -v-

 BARRY MATTHEWS, COMMISSIONER OF POLICE, WA POLICE SERVICE

RESPONDENT

CORAM MAGISTRATE G CICCHINI IM

DATE WEDNESDAY, 12 MAY 2004

CLAIM NO M 117 OF 2003

CITATION NO. 2004 WAIRC 11593

_______________________________________________________________________________ 

Representation

Claimant Ms M Ridley (of Counsel).

Respondent Ms L Diaz (of Counsel) instructed by The Crown Solicitor for the State of Western Australia.

_______________________________________________________________________________

Reasons for Decision

(Given orally during the hearing, extracted from the transcript of proceedings and edited by His Worship)

1         A preliminary issue raised by the Respondent is that this Court does not have jurisdiction to hear and determine alleged prospective breaches of the Agreement.  The Claimant in his particulars of claim alleges prospective breaches.  It is argued in that regard that the Claimant’s claim is limited to breaches that occurred prior to the making of the claim by virtue of section 83(1) of the Industrial Relations Act 1979.

2         In essence, I agree with those submissions made by Ms Diaz on behalf of the Respondent.  Section 83(1) is clear in its terms.  It is a provision which relates to past contraventions or failures to comply.  It does not operate to give this Court power to deal with prospective breaches.  Such a situation would be nonsensical in any event because it would invite the Court to deal with speculative matters and that simply cannot be so.

3         Section 83(1) of the Industrial Relations Act 1979 when read and given its plain and natural meaning can be seen to relate to past contraventions or failures to comply with the provision of an instrument or other relevant provisions.  Now, it is said that subsection (5) of section 83 confers a power upon this Court to deal with a prospective breach.  With respect, I disagree.  It does no such thing.  All it does is enable this Court to provide a remedy in the form of injunctive relief upon proof of the failure to comply or in the event of a contravention.  The starting point is the failure to comply or the contravention.  That must be proved before subsection (5) can even be considered.  Clearly, it is not suggested in this matter that the alleged breach or the alleged failure to comply with the agreement was proved at the time of making the claim.  Accordingly subsection (5) cannot operate so as to enable this Court to deal with the prospective breaches alleged in the claim.

4         This Court’s determination of the claim is limited to breaches or contraventions occurring up to the date of the filing of the claim and no more.  That is not to say, of course, that the Claimant cannot make another claim in relation to the latter period, but that must be the subject of another claim, and must be determined as another claim.

G Cicchini

Industrial Magistrate