WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CITY OF ALBANY

APPELLANT

-and-

JOE O'KEEFE

RESPONDENT

CORAM FULL BENCH

            HIS HONOUR THE PRESIDENT P J SHARKEY

            CHIEF COMMISSIONER A R BEECH

            COMMISSIONER P E SCOTT

HEARD FRIDAY, 22 JULY 2005

DELIVERED TUESDAY, 2 AUGUST 2005

FILE NO. FBA 6 OF 2005

CITATION NO. 2005 WAIRC 02224

CatchWords Industrial Law (WA) – Appeal against decision of a single Commissioner – Jurisdiction – Public interest – Alleged denial of contractual benefits – Statutory benefit not contractual benefit – Whether appeal should lie – Industrial Relations Act 1979 (as amended), s7, s23, s26(1)(a), s29(1)(b)(ii), s49, s49(2a), s49(4) – Minimum Conditions of Employment Act 1993, s5 – Public Sector Management Act 1994, s7, s8, s9 – Local Government Act 1995, s1.3, s1.4, s2.1, s5.50, s5.36, s5.40, s5.47, s5.48, Schedule 2.1, s11(4) and (5), Division 4 of Part 5 – Local Government Officers’ (Western Australia) Award 1988

Decision Appeal upheld and decision at first instance varied

Appearances

Appellant Ms K Reid (of Counsel), by leave

Respondent Mr J O’Keefe on his own behalf

Reasons for Decision

THE PRESIDENT AND COMMISSIONER P E SCOTT:

INTRODUCTION

1         This is an appeal brought under s49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).  The appeal is brought by the above-named City of Albany, a local government within the meaning of s1.4 of the Local Government Act 1995 (hereinafter referred to as “the LG Act”).  The appeal is against the decision of the Commission, constituted by a single Commissioner, given on 3 May 2005, in matter No 1086 of 2004.

2         That decision is constituted by a declaration which reads as follows:-

 “…THAT the application in so far as it relates to a claim for payment of a benefit under the Local Government Act 1995 is within jurisdiction.”

GROUNDS OF APPEAL

3         The appeal is brought on the following grounds:-

 “1. Grounds of Appeal

 The appellant says the Commissioner’s decision at paragraphs 13 - 18 is wrong in law by reason of the following matters:

 (a) the benefits claimed by the respondent allegedly arise pursuant to Schedule 2.1 sub-sections 11(4) and (5) of the Local Government Act 1995 (LG Act);

 (b) the provisions of Schedule 2.1 subsections 1(4) and (5) were not incorporated into appellant’s contract, alternatively could not by operation of law be so incorporated;

 (c) the benefits claimed by the respondent are statutory, not contractual benefits; and

 (d) the Commission’s jurisdiction under section 29(1)(b)(ii) is confined to contractual benefits, therefore the Commission has no jurisdiction in respect of the respondent’s claim.

 2. Decision Sought in Lieu

 The appellant seeks an order that:

 (a)    the appeal be upheld;

 (b) the decision appealed from be quashed; and

 (c) Application 1086 of 2004 be and is hereby dismissed.

 3. Public Interest Considerations

 The appellant says the appeal involves the following matters of public interest:

 (a) the issue of the Commission’s jurisdiction is an important matter of public interest.  Parties need to be clear as to the appropriate forum in which to bring their claims, so that claims can be dealt with expeditiously by the appropriate court or tribunal.

 (b) it is also an important matter of public interest that the issue of employee entitlements under Schedule 2.1 of the LG Act be considered and clarified by the Full Bench.  It would be a significant issue for future local government amalgamations if employees were entitled to apply to the Commission in respect of their statutory entitlements under Schedule 2.1.”

BACKGROUND

4         Mr Joe O’Keefe, the above-named respondent, and the applicant at first instance, made application to the Commission against the City of Albany (hereinafter referred to as “the City”), claiming that he had not been paid benefits under his contract of employment with the City, which were benefits to which he was entitled.  The application was filed in the Commission on 20 August 2004 and was brought pursuant to s29(1)(b)(ii) of the Act.  The amount claimed was “Two years wages from the date of amalgamation, as per WA Local Gov’t Act provisions”, namely $80,000.00.  The claim relied on Schedule 2.1, s11(4) and (5) of the LG Act in that it was claimed that those sections prescribe the benefits which Mr O’Keefe claimed pursuant to his contract of employment.  We will elaborate on those matters later in these reasons.

5         The genesis of the claim was that, when on 1 July 1998 the local governments and districts of the Town of Albany and the Shire of Albany were amalgamated to form a new local government and district, namely the City of Albany, Mr O’Keefe, who had been a Senior Planner employed by the Shire of Albany, was employed in a lesser or downgraded position by the new City of Albany as a “Planner Officer – Policy”.

6         The amount being claimed amounted to the equivalent of two years salary as a Senior Planner employed by the City of Albany, the position in which he said that he should have been employed.

7         The City denied that any benefits under his contract of employment were due to Mr O’Keefe.

8         The question of jurisdiction, when raised, was the subject of written submissions by both parties followed by a hearing in relation to those submissions at which hearing the Commission was advised that Mr O’Keefe had previously unsuccessfully applied in 1998 to be reinstated to his former position following the termination of his employment with the City, that contract having been terminated on 2 December 1998 (see Joe O’Keefe v City of Albany (2000) 80 WAIG 655).

9         We do not need to deal with his application for reinstatement which was not a question to be determined at first instance or on this appeal.

10      At the heart of this matter was the City’s claim that Mr O’Keefe could not rely on the provisions of Schedule 2.1 in the LG Act in support of his claim since there was no change to his contract of employment with the City, brought about by the amalgamation of the two local government authorities in Albany in July 1998 to become the City of Albany.  The City claimed that, in any event, the Commission did not have the jurisdiction to entertain a claim that Mr O’Keefe was owed $80,000.00 by virtue of s11(4) of Schedule 2.1 of the LG Act, because the Commission had no power to enforce the provisions of this Act, nor was it able to enforce the provisions of the Local Government Officers’ (Western Australia) Award 1988 (“the Award”), which formed part of his terms and conditions of employment when he was employed by the City, since such functions can only be exercised by courts of competent jurisdiction.

11      The City also argued that, because the provisions of the Award and/or the LG Act did not form part of his express contract of employment, then such provisions could not pursued as a benefit under s29(1)(b)(ii) of the Act (see Byrne and Frew v Australian Airlines Ltd [1995] 185 CLR 410).

12      Mr O’Keefe’s case, which he maintained, was that the Commission had jurisdiction to hear and determine his application, even though he was seeking reinstatement or, in the alternative the equivalent of two years’ wages as a Senior Planner, because s11(4) of Schedule 2.1 of the LG Act entitled him to these benefits.  He went on to submit that, as his last contract of employment with the City was terminated after the Shire of Albany and the Town of Albany amalgamated on 1 July 1998, and because he was demoted as a result of this amalgamation, he was then entitled to be paid the monies which he was claiming.

13      Mr O’Keefe also submitted that, because the issue of benefits due to him under his contract of employment with the City was not argued or determined by the Commission in the previous matter, then the Commission, as currently constituted, had the power to deal with his claim.

14      However, the core of his argument was that his contract of employment was prescribed by the LG Act in its terms, and, in particular, by the provisions we have referred to.  His submissions also seem to be that there was not a contract entered into outside the provisions of the LG Act, and he relied on Schedule 2.1, s11(4) and (5) of the LG Act to support his claim for contractual benefits (see his statements at page 30-32 of the appeal book).

FINDINGS AT FIRST INSTANCE

15      The Commissioner at first instance found that she did not have the power to order that Mr O’Keefe be reinstated to the position of Senior Planner with the City as a benefit due to him under his contract of employment.

16      She also found did not have the power to deal with the claim for reinstatement to the position as Senior Planner with the City and that finding is not appealed against.

17      The second question was, did the Commission have jurisdiction to order that Mr O’Keefe be paid $80,000.00 as a benefit due to him under s11(4) of Schedule 2.1 of the LG Act.

18      The Commissioner found that one of the intentions of the LG Act “is to provide ‘a framework for the administration and financial management of local governments and for the scrutiny of their affairs’ (see s1.3), and within this framework, it provides for compensation of an amount acceptable to a person if an employee’s contract of employment is terminated or varied as a result (wholly or partly) of an order under s2.1”.

19      The Commissioner therefore found that jurisdiction was expressly conferred on this Commission to make orders for the payment of contractual benefits (see s23 and s29(1)(b)(ii) of the Act) and to deal with an entitlement to an implied term of an employee’s contract of employment.

20      The Commissioner correctly observed that the limitation on this was that the claim does not relate to a federal or state award or agreement entitlement or an entitlement conferred by an Act over which the Industrial Magistrate’s Court has exclusive jurisdiction.

21      The Commissioner also observed that she was not able to say that the enforcement of the requirements of s11(4) of Schedule 2.1 of the LG Act must be exclusively dealt with by one court, although there is no provision in the Act which enables the Industrial Magistrate’s Court to enforce an implied or express provision of an employee’s contract of employment arising from s11(4) of Schedule 2.1 of the LG Act.

22      The Commissioner noted that the provisions of an Act can be implied into an employee’s contract of employment.

23      Accordingly, the Commissioner found that, since it had not been demonstrated that the Commission does not have jurisdiction to deal with Mr O’Keefe’s claim that he is due a payment of $80,000.00 under his contract of employment with the City, pursuant to s29(1)(b)(ii) of the Act, she would hear further from the parties in relation to this part of the claim and issued the declaration appealed against.

ISSUES AND CONCLUSIONS

S49(2a) of the Act

24      This was, as was properly conceded by both parties, an appeal against a “finding” as that term is defined in s7 of the Act.

25      By s49(2a) of the Act an appeal does not lie against the decision of the Commission, constituted by a single Commissioner, such a decision being a “finding” as defined, unless, in the opinion of the Full Bench, “the matter is of such importance that, in the public interest, an appeal should lie”.  This section has been considered by Full Benches of this Commission on a number of occasions and by the Industrial Appeal Court, and the principles are well known (see, for example, McCarthy v Sir Charles Gairdner Hospital (2004) 84 WAIG 1304 (FB)).

26      It was submitted on behalf of the City, and properly conceded, that the Full Bench should reach the opinion required by s49(2a) to be reached before the appeal could lie.  We were of opinion that the appeal was of such importance that, in the public interest, the appeal should lie, because, as a general rule, but not in every case, a matter has the requisite importance if it involves the determination of whether the Commissioner at first instance has acted correctly within jurisdiction or has correctly determined that it has jurisdiction, or has correctly decided that it does not have jurisdiction to hear and determine a matter.

27      Those ingredients, as far as they relate to the operation of the Act and the LG Act are present.

28      We therefore formed the necessary opinion that the appeal should lie.

The Merits of the Appeal

29      The issues upon this appeal arose from the operation of the LG Act upon the employment of an employee under that Act, and as defined in s1.4 of the LG Act to mean “a person employed by a local government under section 5.36”.

30      The question was whether the effect of those provisions in the LG Act relating to what was described as an amalgamation of two municipalities to form a new one, but what would seem to have been under Schedule 2.1 the abolition of the Town of Albany and the Shire of Albany and the creation of a new district encompassing the two districts called the City of Albany, which after the amalgamation became the employer of Mr O’Keefe who had been a Town Planner with the Shire of Albany.

31      The relevant statutory provisions are Schedule 2.1, s11(4) and (5) of the LG Act which read as follows:-

“(4) A contract of employment that a person has with a local government is not to be terminated or varied as a result (wholly or partly) of an order under section 2.1 so as to make it less favourable to that person unless —

(a) compensation acceptable to the person is made; or

(b) a period of at least 2 years has elapsed since the order had effect.

(5) The rights and entitlements of a person whose contract of employment is transferred from one local government to another, whether arising under the contract or by reason of it, are to be no less favourable to that person after the transfer than they would have been had the person's employment been continuous with the first local government.”

32      In accordance with the submissions put on behalf of the City, and not contested, there was, as a matter of fact, no express inclusion in the contract of employment of the statutory provisions upon which Mr O’Keefe relied.  There was no implied inclusion of those provisions, and no evidence adduced to prove such an implication.

33      There was no provision in the LG Act which applied those provisions as terms of the contract of employment.  The relevant provisions themselves clearly do not prescribe what the terms of the contract of employment are, in contradistinction to the Minimum Conditions of Employment Act 1993 (s5) which prescribes that its relevant provisions are implied terms of a contract of employment unless there are more favourable terms (we paraphrase).  The relevant provisions in this case are part of a number of different provisions regulating the creation and changing of boundaries and abolition of local government districts and the consequences of such changes or abolition and belong to that class of provisions.

34      The relevant provisions forbid the termination or variation of a contract of employment with a local government to make it less favourable (see Schedule 2.1, s11(4)).  Schedule 2.1, s11(5) also requires a contract being offered or entered into to be on no less favourable terms where an employee transfers from one local government to another.  Thus, the relevant provisions prescribe that such a contract termination or variation is unlawful.  That is because they forbid them.  Those are the clear express terms of the LG Act and they confer no contractual benefit, in their plain and unambiguous terms.

35      What is in the contract of employment is a matter for the parties and the only provisions referring to contracts are in Division 4 of Part 5 of the LG Act where in s5.36 there is provision that, inter alia, a person is not to be employed by a local government unless it is satisfied with the terms of the contract and, one infers, unless the employee, too, is so satisfied.  If the latter were not the case, then there would be no contract.

36      It is noteworthy that s5.40 of the LG Act prescribes principles for the selection and treatment of employees.  Again, these are not terms of a contract but are statutory principles not dissimilar from the sort expressed in s7, s8 and s9 of the Public Sector Management Act 1994.

37      There are other prescribed statutory obligations of local government, such as the requirement to provide superannuation benefits and long service leave benefits (see s5.47 and s5.48 of the LG Act).

38      There is also a statutory requirement in the LG Act for local governments to prepare a policy in relation to over-award or contract payments to employees who are finishing their employment with a local government.  Such a policy is an indispensable condition precedent to the payment of any such amount to an employee (see s5.50 of the LG Act).

39      It is trite to observe that a claim under s29(1)(b)(ii) of the Act requires the claimant employee to establish:-

a)      That the claimant is an employee as defined in the Act (see s7).

b)     That the matter referred is an industrial matter.

c)      That the respondent was the claimant’s employer at all material times, as the word “employer” is defined in s7 of the Act.

d)     That the claimant was entitled to a benefit under a contract of service.

e)      That the claimant’s employer had not allowed the claimant the benefit which he/she claims.

f)       That the benefit was not a benefit to which he/she was entitled under an award or order (see Perth Finishing College Pty Ltd v Watts (1989) 69 WAIG 2307 at 2309 (FB)).

40      It is quite clear and it is not disputed that after the “amalgamation” there was a contract of employment between the parties, although Mr O’Keefe disputed that such a contract had an existence outside the LG Act, which, as we understood his submissions, was the source of his contract.

41      In this case, on appeal, and at first instance, all that was in issue was whether the claimant, Mr O’Keefe, was claiming a benefit to which he was entitled under a contract of service with the City.  If he was not, then there was no jurisdiction.  If he was then there was jurisdiction.

42      A claimant employee cannot invoke the jurisdiction of the Commission if, inter alia, he/she fails to establish that the entitlement to the benefit claimed existed because of, arose from, and/or owed its existence to, a contract of service between the claimant employee and the employer and the terms of that contract.

43      As we read s29(1)(b)(ii) of the Act, there is no right if that is not established to refer that industrial matter to the Commission and no jurisdiction in the Commission to hear and determine it.  If the benefit is conferred by a statute, and, more importantly, is not conferred by a contract of service between the claimant employee and the employer, then, having regard to the terms of s29(1)(b)(ii) of the Act, there is, in our opinion, no right to refer the matter to, and no jurisdiction in, the Commission to hear and determine the claim (see Perth Finishing College Pty Ltd v Watts (FB) (op cit) and Keane v Lomba Pty Ltd (1998) 78 WAIG 810 at 812 (FB)).

44      The Commission has no jurisdiction to order, under s29(1)(b)(ii) of the Act the payment of a statutory entitlement where the statutory entitlement confers a benefit and where the statute and not the contract of service is the source of the benefit (see Keane v Lomba Pty Ltd (FB) (op cit)).

45      There is no doubt that a benefit can be conferred by a contract of employment in express terms or by an implied term of the contract, or expressly or impliedly by the actual words of the contract itself.  Further, a statute may expressly imply into the contract a term of the contract of employment, which the contract of employment by that implied term then confers as a benefit (see the Minimum Conditions of Employment Act 1993, s5).

46      Of course, an employer and employee may agree that the terms of a statute conferring obligations on an employer and benefits on an employee should form part of the contract of employment and they will then do so.  There was no such agreement and no evidence of such in this matter.  In the absence of such an agreement, terms can only be implied into the contract if they are impliable according to proper principle.  We will turn to that matter later in these reasons.

47      One way of implication of a term of a contract of employment, as is well known, is by the application of the Codelfa principles (see BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings [1977] 180 CLR 266 (PC) and Codelfa Construction Pty Ltd v State Rail Authority of NSW [1981-1982] 149 CLR 337 at 347 and 404).

48      Those principles have been applied in this Commission in many cases.  However those principles are not applicable to cases like this where the contract is not contained solely in a written document (see Hawkins v Clayton and Others [1987-1988] 164 CLR 539 at 573 and Byrne and Frew v Australian Airlines Ltd (HC) (op cit).

49      If there was to be such an implication in this case, it could only be effected by applying the principles laid down in Hawkins v Clayton and Others (HC) (op cit) where a somewhat more elastic view of the principles laid down in BP Refinery (Westernport) Pty Ltd v President, Councillors and Ratepayers of the Shire of Hastings (PC) (op cit) and Codelfa Construction Pty Ltd v State Rail Authority of NSW (HC) (op cit) was applied in the case of a contract which is not confined to a written document.  Those principles would be applicable here.

50      This Commission has applied those principles in, for example, Larkin v Boral Construction Materials Group Ltd (2003) 83 WAIG 929 at 934-935 (FB).

51      The test formulated by Deane J in Hawkins v Clayton and Others (HC) (op cit) at page 573 has also been approved in Byrne and Frew v Australian Airlines Ltd (HC) (op cit) at page 422 (see also Lawson and Others v Joyce Australia Pty Ltd (1995) 76 WAIG 20 at 23-25 (FB)).  His Honour said:-

“The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case.  That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties.”

52      There was no or no sufficient evidence, or, indeed, argument at first instance that the entitlements, if entitlements they were, prescribed by Schedule 2.1, s11(4) and (5) of the LG Act, should in their terms be implied as terms of the contract applying the Hawkins v Clayton and Others (HC) (op cit) approach; nor was it Mr O’Keefe’s case on the appeal.

53      There was, in any event (see Hawkins v Clayton and Others (HC) (op cit)), no evidence on which the Commissioner at first instance could arrive at some conclusion as to the actual intention of the parties in this respect before considering any presumed or imputed intention.  Further, there was nothing before the Commissioner at first instance on which it might correctly be found that the implication of the particular terms, that is terms of the provisions contained in Schedule 2.1 of the LG Act, were necessary for the reasonable or effective operation of the contract of employment in the circumstances of this case, and having regard to the nature of the contract itself.

54      Indeed, as well, there was no suggestion, nor could there correctly be, that such terms could be implied in the contract of employment as a matter of law either, unlike a term such as the giving of reasonable notice.

55      As we have said, there was nothing submitted and no evidence to suggest that the provisions of the LG Act were necessary, in any event, for the reasonable operation of the contract of employment as we have observed, either on the Codelfa principles or the Hawkins v Clayton and Others (HC) (op cit) principles, if the Codelfa principles were applicable, which they were not.

56      Most importantly, the LG Act does not provide for or prescribe the terms of any contract of employment.  It merely in its own terms provides entitlements apart from the contract of employment and prescribes rights and obligations outside the contract of employment made between an employee and a local government.  Applying by analogy the reasoning applied in Byrne and Frew v Australian Airlines Ltd (HC) (op cit) and Keane v Lomba Pty Ltd (FB) (op cit), it is clear that the obligations prescribed by Schedule 2.1, s11(4) and (5) of the LG Act arose and arise by force of the statute and that those provisions neither expressly, impliedly or otherwise could be accounted as terms of a contract of employment conferring the benefits claimed by Mr O’Keefe on him.

57      As Their Honours, Brennan CJ, Dawson and Toohey JJ said in Byrne and Frew v Australian Airlines Ltd (HC) (op cit) at page 420 said, after referred to the clear distinction between an obligation originating in a statute and an obligation arising from a contract:-

“A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment.  The award regulates what would otherwise be governed by the contract.  But award rates are imported as a statutory right imposing a statutory obligation to pay them.  The importation of the statutory right into the employment relationship does not change the character of the right.  As Latham CJ points out in his judgment in Amalgamated Collieries of WA Ltd v True [1938] 59 CLR 417 at 423), the legal relations between the parties are in that situation determined in part by the contract and in part by the award.  And as the judgment of the Privy Council in that case suggests, a provision in an award may also be made a term of the contract by agreement between the parties, but that is only to emphasise the distinction between an obligation imported by statute and one arising by agreement.”  (our emphasis)

58      We respectfully follow that reasoning and those dicta, as we are bound to do.

59      We also observe what Their Honours say and adopt it, in Byrne and Frew v Australian Airlines Ltd (HC) (op cit) at page 421.

60      First, in a system of industrial regulation where some but not all of the incidents of an employment relationship are determined by the award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award.  Second, the contract may provide additional benefits, but it cannot derogate from the terms and conditions imposed by the award (see Kilminster v Sun Newspapers Ltd [1931] 46 CLR 284), and the award operates with statutory force to secure those terms and conditions (our emphasis).  Neither from the point of view of the employer nor the employee is there any need to convert those statutory rights and obligations to contractual rights and obligations (our emphasis).

61      In our opinion, that reasoning clearly applies to this case where a number of significant incidents of the employment relationship, including the right not to have a contract of employment upon “amalgamation” of local governments terminated, the right not to have one’s contract varied to one’s disadvantage without compensation, and the right to transfer from one local government’s employ to that of another on a contract no less favourable after the transfers than the contract would have been, had the employment been continuous with the first local government, were prescribed clearly and unequivocally as statutory benefits.  The LG Act regulates what otherwise might be governed by the contract were it expressed in it, which is not necessarily likely given the nature of the relevant statutory provisions.

62      This prescription operates in a similar way to the prescription under an award, which was referred to in Byrne and Frew v Australian Airlines Ltd (HC) (op cit).  Again, a contract cannot derogate from the entitlements brought to the employer/employee relationship by the statute.  The contract provides additional benefits in this case, one infers, as it would have to do, and the LG Act obviously acts as a statute to secure the conditions which it as a statute prescribes.  From the point of view, therefore, of both parties, it is simply unnecessary to convert the statutory rights and obligations to which we have referred in those reasons, including those in Schedule 2.1, s11(4) and (5) of the LG Act to contractual rights and obligations.  That is an insuperable obstacle in the way of Mr O’Keefe’s claim in this matter.

63      Thus, Mr O’Keefe’s reliance on the LG Act for his entitlement to the contractual benefits he claimed and the terms of the contract of employment which provided them was simply not warranted.  The application was not a claim for a contractual benefit within the meaning of s29(1)(b)(ii) of the Act, for those reasons.

64      An attempt was made by the City to invoke s26(1)(a) of the Act and argue in effect that there was a miscarriage in the exercise of the Commissioner’s discretion because the Commissioner decided that there was jurisdiction to hear and determine the application and that she thereby permitted the application to proceed.  That was not a matter raised or argued at first instance and was not before the Commission for determination.  It would certainly not be decided.  Such an argument should not be permitted upon this appeal, and we would not permit it because of the provisions of s49(4) of the Act as construed by Full Benches of this Commission.

65      That is particularly the case since the matter is a matter which might have been the subject of evidence had it been raised at first instance.  Further, it was not a ground of appeal, in any event.

66      We would also add that it might have been alleged and/or argued that Mr O’Keefe did not, as he was required to do, establish those facts which supported a finding of jurisdiction for the reasons which we have observed.

67      We would also add that the decision made was made somewhat in vacuo because it was not expressly found that the application itself was within jurisdiction in the reasons, although the decision appealed against was expressed to reflect such a finding.

68      For those reasons, there was no jurisdiction in the Commission to hear and determine the application.  For those reasons, the Commissioner at first instance erred in determining otherwise.  The appeal is made out.  We would therefore vary the declaration made at first instance by deleting the same and substituting for it an order dismissing the application.

CHIEF COMMISSIONER A R BEECH:

69      I have had the advantage of reading the draft reasons for decision of His Honour, the President.  I agree and have nothing to add.

THE PRESIDENT:

70      For those reasons, the appeal is upheld and the decision at first instance varied.

Order accordingly