DISPUTE REGARDING TERMINATION OF EMPLOYEE

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Maureen Dehnel

APPELLANT

-v-

Dr Neale Fong, Director General, Department of Health AND OTHERS

RESPONDENTS

CORAM PUBLIC SERVICE APPEAL BOARD

 Commissioner P E Scott - CHAIRMAN

 MR B HEWSON - BOARD MEMBER

 MR L MARRABLE - BOARD MEMBER

HEARD Friday, 10 March 2006, Wednesday, 5 July 2006, Thursday, 6 July 2006

DELIVERED tuesDay, 31 OCTOBER 2006

FILE NO. PSAB 13 OF 2005

CITATION NO. 2006 WAIRC 05677

CatchWords Industrial Law (WA) – Public Service Appeal Board – Appeal against decision to terminate appellant’s employment – Appeal filed outside 21 day prescribed time limit - Application for extension of time - Whether PSAB has jurisdiction to extend time limit – Whether PSAB has the power to determine its own jurisdiction – Whether PSAB has jurisdiction to hear and determine the matters before it – Purpose and language of legislation considered – Authorities considered – PSAB has power to enquire into and determine whether any matter before it comes within its jurisdiction – Language of legislation which prescribes time limit is directory and procedural – PSAB has power to extend the prescribed time – Industrial Relations Act 1979 (WA) s.7; s.22B; s.23; s.24; s.26(1) and (3); s.27; s.28; s.29(1)(b)(i), (2) and (3); s.31(1), (2), (3), (5) and (6); s.34(3) and (4); s.36; s.49(3); ss.80C to 80L; and s.84(3) – Industrial Relations Commission Regulations 2005 s.36 and s.107 – Public Sector Management Act 1994 (WA) s.52 – Interpretation Act 1984 (WA) s.18 – Industrial Relations Amendment Act 1993 (WA) – Conciliation and Arbitration Act 1904 (Cth) – Commonwealth Act s.40(1) and s.41

Result Jurisdiction decided

Representation 

Appellant Mr M Finnegan

Respondent Mr J Ross

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (“the Board”).

2         On 22 December 2005, the appellant filed with the Registrar a Notice of Appeal to the Board against the respondent’s decision to dismiss her.  The decision to dismiss is said to have been made on 9 November 2005.  The appellant also seeks an extension of time in which to file the appeal as it was filed outside the period of 21 days set out in Regulation 107(2) of the Industrial Relations Commission Regulations 2005.  The application for an extension is said to be made pursuant to Regulation 36. 

3         The respondent opposes the application for an extension of time. 

4         The parties provided a Statement of Agreed Facts and a file of agreed documents.  The Statement of Agreed Facts set out the following:

“Breach of Timeframes

1. Ms Denhel (sic) was a public servant employed by BreastScreen WA pursuant to the Public Sector Management Act 1994 (PSMA).

2. The Public Service Award (Award) and the Public Service General Agreement (Agreement) governed the terms and conditions of her employment at the date of her dismissal.

3. Ms Denhel (sic) was dismissed on 9 November 2005, pursuant to S86(3) of the PSMA.

4. Ms Denhel’s (sic) representatives (HSU) were aware at the time of her dismissal that she was a public servant.

5. On 8th December 2005 Ms Denhel’s (sic) representatives (HSU) filed application PSAC55 of 2005 on her behalf seeking a conference in respect of allegations of unfair dismissal.

6. Ms Denhel’s (sic) representatives (HSU) were advised that the respondent would oppose her application.

7. Commissioner Kenner convened a conference on PSAC 55 of 2005 on 16 December 2005.

8. Ms Denhel’s (sic) representatives (HSU) advised the Commission that Ms Denhel (sic) was a Public Servant employed pursuant to the PSMA at the date of termination and was terminated pursuant to the PSMA S86(3), but notwithstanding, sought to have the PS Arbitrator deal with the matter under its general jurisdiction.

9. Commissioner Kenner refused to hear PSAC 55 of 2005, as the application was flawed to the extent that there was no matter properly before him.

10. The respondent refused the CSA’s request for an agreement to extend the timeframes to enable a Public Service Appeal Board application to be lodged.

11. The Applicant lodged PSAB 13 of 2005 on 22 December 2005, 22 days past the prescribed date for lodgement.

Overview of Merit

12. On 13 July 2004, Ms A Kelly lodged a formal complaint reporting Ms Denhel’s (sic) conduct.

13. On 2 August 2004, Ms Denhel (sic) lodged a grievance against Ms A Kelly concerning her behaviour towards Ms Denhel (sic).

14. Mr Ken Trainer was appointed on 6 August 2004 to investigate both the complaint and the grievance.

15. On 3 December 2004, Mr Ken Trainer provided his report and recommendations, which were provided to Ms Denhel (sic) on 14 January 2005.

16. The Report recommended:

• That Ms Denhel (sic) be advised that the grievance has not been made out based on the material advanced in support of it.

• That the Department prepare and service (sic) a notice of a suspected breach of discipline on Ms Denhel (sic) citing the events of 13 July 2004 as acts of misconduct.

• Consideration be given to a further notice concerning the Departure (sic) from the workplace on 13 July 2004 without authority.

That the Department

a. Review Ms Denhel’s (sic) performance including but not limited to the conduct of a formal appraisal against the requirements of the position.

b. The appraisal be conducted by a person well experienced in the process and without connection to the BreastScreening Service

c. Ms Denhel’s (sic) supervisor be consulted as part of the appraisal.

17. The recommended disciplinary process against Ms Denhel (sic) pursuant to the PSMA, Part 5 Division 3 commenced on 12 May 2005.

18. Mr Ivan Evans conducted the investigation pursuant to PSMA s81(2).

19. Mr Ivan Evans submitted his report dated 3 June 2005 to the Director General.

20. Following the investigation the Director General found Ms Denhel (sic) had committed a serious breach of discipline and charged her under s83(1)(b) of the PSMA and Regulation 19 of the Public Sector Management (General) Regulations 1994.

21. Ms Denhel (sic) was provided with a copy of the report on 1 August 2005 and required to admit or deny the charge in writing by 8 August 2005.

22. Ms Denhel (sic) was suspended without pay until such time as the disciplinary proceedings were concluded.

23. Ms Denhel (sic) denied the charges in writing on 5 August 2005.

24. Pursuant to s86(4) the Director General directed Mr Steve Young to hold a disciplinary inquiry into the charges.

25. On 1 August 2005 the CSA raised the suspension of Ms Denhel (sic) and sought reinstatement of salary.

26. On 15 August 2005, the Department provided the CSA with the factors taken in to account in suspending Ms Denhel (sic).

27. On 19 August 2005, the CSA lodged PSAB 10 of 2005 on behalf of Ms Denhel, (sic) challenging the suspension without pay.

28. In September 2005, the CSA withdrew PSAB 10 of 2005, following the Department agreeing to allow Ms Denhel (sic) access to pro-rate (sic) Long Service Leave.

29. Ms Denhel’s (sic) prorated (sic) Long Service Leave payments under the agreement negotiated by the CSA expired on 20 October 2005.

30. Mr Steve Young concluded the disciplinary (sic) on 24 October 2005 with a finding that a serious breach of discipline had occurred and recommended that Ms Denhel (sic) be dismissed.

31. The Director General accepted the finding and the recommendations of the report and on 9 November 2005 dismissed Ms Denhel (sic).”

5         It is noted that the procedure put in place for the conduct of the hearing was aimed at ensuring that all matters were in place for an expeditious hearing of the appeal.  However, on 5 July 2006, the respondent put forward an argument in respect of jurisdiction which was not at all apparent from its outline of submissions previously filed.  The appellant was taken by surprise and the hearing had to be adjourned to allow the appellant adequate opportunity to respond.  Ultimately the parties put their submissions regarding jurisdiction in writing.  Had the respondent properly identified its arguments as provided for in the process leading up to the hearing, a good deal of time could have been saved.

The Respondent’s Case

6         The respondent’s position is that there are 3 questions to be answered regarding the Board’s jurisdiction in this matter.  Those questions are:

1. Does the Board have jurisdiction to grant relief in respect of the appellant’s failure to lodge in the prescribed times under s.80J of the Act?

2. Whether or not the Board has the power to determine its own jurisdiction, and consequently;

3. Whether or not the Board has the jurisdiction to hear and determine the matters the parties have put before it?

7         The respondent says that the authority of the Board pursuant to s.80H(1) of the Industrial Relations Act 1979 (“the IR Act”), is for the purpose of hearing only appeals under s.80I, that in this case, its jurisdiction is only those matters under s.80I(1)(e), being to hear and determine an appeal “from a decision, determination or recommendation of the employer of that Government officer that the Government officer be dismissed.”  The respondent says that the Board has no jurisdiction to consider any other matter and its power is to “adjust” to the matters referred to in s.80E, being the employer’s decision.  According to s.80J(a), an appeal under s.80I is to be instituted in the prescribed manner, within the prescribed time.

8         The respondent contends that instituting the appeal within the prescribed time “is a statutory prerequisite for the Board being established under 80H, and obtaining its jurisdiction under 80I … [i]f the appeal was not instituted in the prescribed time or the prescribed manner” (transcript, 5 July 2006, page 8), there is no Board established under s.80H and therefore no jurisdiction under s.80I of the IR Act.  The issue of the appellant’s non-compliance with s.80J is not a decision, determination or recommendation of the employer that relates to the appellant and therefore, the respondent says that the Board does not have jurisdiction to deal with that matter. 

9         The respondent also says that s.27 of the IR Act does not override the prerequisite statutory requirements of s.80J and therefore the Board has no power to use s.27 to override the statutory requirements to obtain jurisdiction under s.80J. 

10      Likewise, the respondent says that “80I does not give the Board the power to determine its own jurisdiction.  That’s not a matter that falls within 80I” (transcript, 5 July 2006, page 8).

11      The respondent’s position is summarised within its submission as being that:

“• The Act confers the jurisdiction on the PSAB under s80I

• s80I is narrow, specific and can only address the limited matters prescribed in s80I(1) (a) to (e).

• s80L does not confer additional jurisdiction and can only be applied within the prescribed jurisdiction under s80I to “adjust” those prescribed matters.

• There is no provision in the Act that confers any additional jurisdiction on the PSAB.

• s27 can only operate within the prescribed jurisdiction under s80I

• s27 does not confer additional jurisdiction on the PSAB

• the PSAB only attains its jurisdiction when a 80I appeal is instituted in accordance with 80J.

• s80J is a statutory prerequisite to the PSAB attaining its jurisdiction

• s80J prescribes how a s80I appeal must be instituted, the wording is mandatory in nature and must be complied with

• Reg 107 prescribes the time.

• There are no discretionary powers under s80I, s80J or Reg 107 to address applications that do not comply with these prescribed provisions

• If an application is not instituted in the prescribed manner, the board is not properly established under s80H and has no jurisdiction under s80I.

• If s80J is a statutory prerequisite to s80I jurisdiction and if not complied with, there is no right to be heard

• s80I limits the PSAB jurisdiction to decisions, determinations and recommendations of the employer.

• The PSAB can only adjust matters within s80I

• Failure to comply with the prescribed timeframes under s80J is clearly not a decision of the employer.

• No provisions under s80I provided discretion to hear and determine out of time applications.

• s80K(4) specifically removes the PSAB discretionary powers in respect to prescribed matters such as s80J and Reg 107.

• s29(3) flexibility is not imported into PSAB jurisdiction.

• S27(1)(n) has no application as the timeframes of s80J are a statutory right that must be met to have the right to appeal.

• s27(1)(n) cannot extend the PSAB jurisdiction to hear and determine out of time applications especially as its (sic) not a matter specified in s80I.”

(Submission of 14 July 2006, pages 2-4)

The Appellant’s Case

12      The appellant refers to the decision of the High Court in R v Blakely; Ex parte Association of Architects, Engineers and Draftsmen of Australia ([1950] 82 CLR 54) to support its contention that the Board must have the capacity to determine its own jurisdiction otherwise matters would simply grind to a halt. 

13      As to the question of the Board’s ability to deal with the issue of the appeal being out of time, the appellant refers to interpretation of the terms “shall” and “may”, considers the decisions of the Industrial Appeal Court and the Full Bench in respect of the provisions of s.29 of the IR Act as it was and is now, and notes that there is precedent in the IR Act that the use of the word “shall” on its own does not impose a mandatory obligation and consequentially s.27(1)(n) can apply to extend time.  The appellant also refers to E J Richardson v Cecil Brothers ([1994] 74 WAIG 1017) which in turn refers to Arpad Security Agency Pty Ltd v Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch (69 WAIG 1287).  In that matter the Full Bench dealt with the question of an application to extend the time limit set out in s.84 of the IR Act for the purpose of the filing of an appeal.  The Full Bench interpreted the word “shall” as not imposing a mandatory time frame.  Further, the Full Bench also found that the caveat to s.27(1) of “[u]nless otherwise provided in this Act”, did not allow a specific time frame in related regulation to detract from this power.  The appellant says that the time within that Regulation (21 days) was not in this Act, but was contained within a separate Regulation.  Accordingly, the appellant says the same logic applies to the interaction of the time frame in Regulation 107(2) and the powers of the Board through s.27(1)(n). 

14      The appellant says “both sections (49(3) and 84(3)) use the auxiliary verb “shall” in relation to the time for filing an appeal.  The appellant says that the use of the term “shall” in s.80J is not prohibitive, the relationship with the wording of Regulation 107(2) is not proscriptive, and the appellant distinguishes the words used in the former s.29(2) and the current s.29(2) and (3) from those used in s.80J and Regulation 107(2). 

15      The appellant says that s.80L imports the powers under s.27 to the Board including those under s.27(1)(n), thereby empowering the Board to extend time. 

The Legislation

16      Section 80H of the IR Act establishes within, and as part of, the Commission a Board to be known as the Public Service Appeal Board.  It sets out how the Board is to be constituted.

17      Section 80I – Appeals sets out the jurisdiction of the Board, subject to s.52 of the Public Sector Management Act 1994 (WA) that “a Board has jurisdiction to hear and determine” a particular and specified range of appeals.  Those appeals are against interpretations, decisions, determinations or recommendations of the employer.  In this case, it is:

“(1) …

(e) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any Government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer of that Government officer that the Government officer be dismissed.”

18      The Board’s power on hearing any of the appeals set out is “to adjust” the decision, determination or recommendation appealed against.

19      Subsection (3) provides that:

“A Board does not have jurisdiction to hear and determine an appeal by a Government officer from a decision made under regulations referred to in section 94 of the Public Sector Management Act 1994.”

20      This appeal is not against such a decision.

21      Section 80J – Institution of appeals provides:

“An appeal under section 80I — 

(a) shall be instituted in the prescribed manner and within the prescribed time;

(b) may be instituted by the public service officer or other Government officer concerned or by an organisation on his behalf.”

22      The manner in which the Board is to conduct its proceedings is set out in s.80K – Proceedings of Boards, which states:

“(1) For the purposes of exercising its jurisdiction a Board may sit at any time and place appointed by the Chairman of the Board and may adjourn to any time and place appointed by him.

(2) The decision of a Board shall be given in writing and shall be signed and delivered by the Chairman of the Board.

(3) The jurisdiction of a Board shall be exercised by all the members sitting together and when the members are divided in opinion on a question, the question shall be decided according to the decision of the majority of the members.

(4) To the extent to which it is not prescribed a Board may regulate its own procedure.”

23      Section 80L then provides that certain specified provisions of the IR Act are applicable to the proceedings of the Board.  This provides:

“(1) Subject to this Division the provisions of sections 22B, 26(1) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 34(3) and (4) and 36 that apply to and in relation to the exercise of the jurisdiction under this Act of the Commission constituted by a Commissioner shall apply, with such modifications as are prescribed and such other modifications as may be necessary, to the exercise by a Board of its jurisdiction under this Act.

(2) For the purposes of subsection (1) section 31(1) shall apply as if paragraph (c) were deleted and the following paragraph were substituted — 

“…

(c) by a legal practitioner.

     …””

24      The first aspect of s.80L(1) is that it is “[s]ubject to this Division.”  The Division referred to is “Division 2 – Public Service Arbitrator and appeal boards,” which is part of Part IIA – Constituent Authorities.  Division 2 is made up of ss.80C to 80L.

25      The next aspect of s.80L(1) is that specified sections which fall outside of Division 2 apply to the exercise of jurisdiction.  Those sections are 22B, 26(1) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 34(3) and (4) and 36.  Therefore, one would conclude that unless there is something to the contrary contained within ss.80C to 80L inclusive, those provisions apply to the Board.

26      Section 22B requires the Commission to act with as much speed as possible.  Section 26(1) sets out how the Commission is to conduct itself in the exercise of its jurisdiction, i.e. according to equity, good conscience and the substantial merits of the case; it shall not be bound by the rules of evidence; it shall have regard to a range of specified matters, e.g. the interest of those persons immediately concerned, the state of the national and state economics and other such matters.  Subsection (3) requires the Commission to notify the parties of any matter or information not raised in the hearing, which it intends to take into account, and to give them the opportunity to be heard on that matter or information.

27      Section 27 – Powers of Commission is also applicable to the Board.  It provides that except as otherwise provided in the IR Act, the Commission may, in relation to any matter before it do a number of things which relate to the way it is to deal with the business before it, including:

“(l) allow the amendment of any proceedings on such terms as it thinks fit;

(m) correct, amend, or waive any error, defect, or irregularity whether in substance or in form;

(n) extend any prescribed time or any time fixed by an order of the Commission.”

28      Section 28 allows the Commission to exercise its powers at any time after a matter has been lodged. 

29      Section 31(1) deals with the representation of parties in matters before the Commission.  Section 34(3) and (4) deal with the status of decisions of the Commission.

30      Regulation 107 of the Industrial Relations Commission Regulations 2005 is that which sets out matters relating to an appeal to the Board.  It provides:

“107. Public Service Appeal Board

(1) An appeal to the Board under section 80I(1) of the Act may be commenced by filing a notice of appeal in the form of Form 11.

(2) An appeal may be commenced within 21 days after the date of the decision, determination or recommendation in respect of which the appeal is made or where that decision, determination or recommendation is published in the Government Gazette within one month of the date of that publication.

(3) A notice of appeal must clearly and concisely set out the grounds of appeal and be signed by the appellant.

(4) At the time of filing the notice of appeal the appellant must lodge in the office of the Registrar at least 3 copies of the notice for use of the Board and at least as many additional copies as there are respondents to the appeal.

(5) On return to the appellant of the stamped copy of the notice of appeal the appellant must serve it on the respondent.

(6) On proof of service of the notice of appeal on the respondent the appellant may request that the appeal be set down for hearing.

(7) The Chairman is to fix the date, time and place for the hearing of the appeal, arrange a sitting of the Board and notify the parties.

(8) The parties are to be given not less than 14 days notice of the hearing of the appeal, unless the Board otherwise directs in a particular case.

(9) An appeal cannot be heard by the Board unless the appellant supplies the Board at least 4 days prior to the hearing with 3 copies of a statement in writing of the facts on which the appellant relies and also serves a copy of the same statement on the other party to the appeal or the party’s representative.”

31      The remainder of the provisions of the IR Act are not directly relevant for the purposes of the Board exercising its jurisdiction although they provide some useful points of reference, and comparison, set out the context of the provisions and the exclusion of certain provisions of the IR Act from application to the Board’s proceedings is instructive. 

32      In interpreting terms of legislation, the terms are to be taken in context and the whole of the IR Act ought be considered in that process of discerning the intentions of the legislators (See Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] 194 CLR 355 at 375 and 390–1).

33      Other sections of the IR Act which are significant for consideration in that process include s.29(2) and (3).  This provides:

“(2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated.

(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.”

34      Section 24 specifically gives the Commission jurisdiction to decide whether a matter is industrial.  This has significance to the Commission’s jurisdiction which is set out in s.23 as being that subject to the IR Act, “the Commission has cognizance of and authority to enquire into and deal with any industrial matter.”  An industrial matter is defined in s.7 – Interpretation.

Does the Board have power to determine its own jurisdiction?

35      It is clear that the Board’s jurisdiction is limited to hearing and determining certain types of appeals by Government officers and others against interpretations, decisions, determinations or recommendations of the employer (s.80J) (See The Civil Service Association of Western Australia Incorporated v Chief Executive Officer, Disability Services Commission (1995) 85 WAIG 2083, and State Government Insurance Commission v T H Johnson (IAC) 77 WAIG 2169).

36      The Board’s jurisdiction may be contrasted with that of the Commission in its general jurisdiction which has “cognizance of and authority to enquire into and deal with any industrial matter” (s.23).  The Public Service Arbitrator (“the Arbitrator”) has “exclusive jurisdiction to enquire into and deal with any industrial matter relating to a Government officer, a group of Government officers or Government officers generally” (s.80E(1)).

37      An industrial matter is defined by s.7 – Interpretation.  Section 24 gives the Commission jurisdiction to determine whether any matter before it is an industrial matter.  Section 24 is imported into the jurisdiction of the Arbitrator by s.80G(1).  Therefore, it is noted that both the Commission and the Arbitrator are specifically empowered to determine whether a matter before them is within jurisdiction.

38      There is no such specification in respect of the jurisdiction of the Board.  The question then arises as to whether there is some general precept which applies to enable this to occur.

39      In Federated Engine – Drivers and Firemen’s Association of Australasia v the Broken Hill Proprietary Company Limited [1911] 12 CLR 398 at 415, Griffith CJ said:

“the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense.  In this respect a grave responsibility rests upon the President, whose jurisdiction is limited both by the Constitution and the Act.  This responsibility is not diminished by the possibility that he may be misled by imperfect or erroneous information.  The mode of satisfying himself may vary in different cases.  In most cases that come before an ordinary Court of law it is not necessary to make any inquiry on the subject, although in some cases it is.”

40      In the same case, Barton J said:

“Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the Court of first instance.”

(page 428)

41      Isaacs J, in that case, quoted from a passage by Coleridge J in Bunbury v Fuller (9 Ex., 111, at page 140), that:

“Suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits; and on its being presented, the Judge must not immediately forebear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not proceed with the principal subject-matter according as he finds on that point; but this decision must be open to question, and if he has improperly either forborne or proceeded on this main matter in consequence of an error, on this the Court of Queen’s Bench will issue its mandamus or prohibition to correct his mistake.”

42      and said:

“My answer then is, that the obligation to inquire as to the existence of the dispute arises as an incident to the functions of determining the issues before the Court, and for the purpose of seeing that every essential condition of jurisdiction laid down by the law is observed.”

 (page 454)

43      (“The dispute” to which Isaacs J referred was necessary for a finding of a dispute for the purposes of enlivening the jurisdiction of the Commonwealth Court of Conciliation and Arbitration).

44      In R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [1950] 82 CLR 54 Latham CJ at page 70, referred to Griffith CJ, quoted from the Engine Drivers Case (supra) that:

“the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense,”

45      and went on to add:

“(The Commissioner is not a judicial officer, but the principles stated apply to him because he now, with some exceptions, exercises the same arbitral powers as were formerly vested in the President of the Court.)”

46      Fullagar J at 91, noted that:

“Generally speaking, when a tribunal other than a superior court, in a technical sense is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked.”

47      The Board is a tribunal with limited jurisdiction.  According to the authorities, when its jurisdiction is challenged, it is obliged to satisfy itself that it does have jurisdiction.  The requirement to satisfy itself about jurisdiction is, according to Coleridge J “a collateral matter”, and according to Fullager J “a preliminary question”, not a separate matter of jurisdiction which requires specific identification in the legislation.

48      In our view, the requirement for the Board to decide whether or not it has jurisdiction is not a matter outside the normal considerations which any court or tribunal must decide, and in dealing with such matters, the Board is not “extending” its jurisdiction.

49      The decisions of the Commission and the Industrial Appeal Court in CSA v CEO, Disability Services Commission (supra) and T H Johnson (supra) respectively are not of assistance in deciding the issue of whether the Board’s jurisdiction includes deciding those collateral and preliminary questions.  The issues raised by the respondent in the current matter have not previously been considered in regard to the jurisdiction and powers of the Board, accordingly there is no direct authority in relation to those matters.

50      If the Board did not have the ability and responsibility to determine that it had jurisdiction, any appeal could be defeated by a respondent simply challenging the Board’s jurisdiction and the Board would have to abandon the matter.  Such a situation would completely negate the Board’s legislated role, and the legislators’ intentions in creating the Board.

51      Therefore, we conclude that the Board has jurisdiction to enquire into and determine whether any matter before it comes within its jurisdiction.

Does the Board have jurisdiction to accept an appeal lodged outside the prescribed time?

52      The particular provisions in dispute are s.80J(a), s.80K(4), Regulation 107(2) and s.27(1)(n), which are set out earlier in these Reasons.

53      The language used in s.80J(a) is of particular significance.  It provides that an appeal under s.80I “shall be instituted in the prescribed manner and within the prescribed time.”  The prescribed time is set out in Regulation 107(2) which provides that “an appeal may be commenced within 21 days after the date of the decision, determination or recommendation …” (underlining added).

54      Section 27(1)(n) provides that “[e]xcept as otherwise provided in this Act, the Commission may, in relation to any matter before it:

“(l) allow the amendment of any proceedings on such terms as it thinks fit;

  (m) correct, amend, or waive any error, defect, or irregularity whether in substance or in form;

  (n) extend any prescribed time or any time fixed by an order of the Commission.”

55      Section 27(1)(n) provides that the Commission may extend any prescribed time.  The Interpretation Act 1984 (WA) defines “prescribed” as meaning:

“(a) prescribed by or under the written law in which the word occurs; and

  (b) in a case where reference is made to anything prescribed by a written law other than the law in which the word occurs, includes anything prescribed by subsidiary legislation made under that other written law.”

56      In this case the time limit is described within the IR Act as a “prescribed time” (s.80J(a)) and the prescribed time is contained in the subsidiary legislation, being the Regulations.

57      Section 18 – Purpose or object of written law, use of in interpretation, of the Interpretation Act 1984 (WA) provides that:

“a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.”

58      The question arises as to the purpose or object of the provisions of the IR Act relating to appeals to the Board.  We have limited the consideration to the Board rather than to the IR Act generally on the basis that s.6 – Objects is not expressly applicable to the Board.  However, it is reasonable to conclude that the purpose or object of the provisions of the IR Act relating to the Board are to allow a Government officer to have the Board review the interpretation, decision, determination or recommendation of the employer.  The object of a provision allowing for an extension of time is to allow the Court (or in this case the Commission) to do justice between the parties (Gallo v Dawson (1990) 64 ALJR 459 at 459 per Mc Hugh J).  Therefore, an interpretation of the provisions relating to the Board which supports the Board doing justice between the parties is preferred.

59      In Re Coldham and Others; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (HCA) 64 AILR 215, the Court examined the provisions of the Conciliation and Arbitration Act 1904 (Cth) in respect of an appeal.  The unanimous decision of the Court said:

“Section 35(2) of the Act provides that an appeal lies to the Full Bench of the Commission against certain awards: an expression which includes orders — s 4(1).  By s 35(4)(a) it is provided: —

“An appeal under sub-section (2)—

(a) shall be made within 21 days after the date of the award or decision appealed against ...”

Section 35(11) provides: “The provisions of this division relating to the hearing and determination, or the hearing or determination, of an industrial dispute extend to the hearing and determination, or the hearing or determination, as the case may be, of an appeal under this section.”

Section 35 appears in Div 1 of Pt III. Section 41 also appears in that Division.  By s 41(1) the Commission is given wide powers in relation to an industrial dispute and by s 41(2) a reference in s 41(1) to an industrial dispute shall, unless the contrary intention appears, be read as including a reference to any other proceedings before the Commission. The powers given to the Commission by s 41(1) include powers to:—

“(k) allow the amendment, on such terms as it thinks fit, of any proceedings;

  (l) correct, amend or waive any error, defect or irregularity, whether in substance or in form;

  (m) extend any prescribed time.”

The provisions of the Act should be construed to give effect to its objects which, according to s 2(c), include “to provide means of preventing and settling industrial disputes not resolved by amicable agreement, …   By s 40(1) it is provided that in the hearing and determination of an industrial dispute or in any other proceedings before the Commission:—

“(a) the procedure of the Commission is, subject to this Act and the regulations, within the discretion of the Commission;

  (b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks just; and

  (c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.”

…

Section 41 applies “in relation to” “any … proceedings before the Commission.”  The word “proceedings” has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time.  If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that the notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by s 41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of s 41 are inapplicable to the particular proceedings in question.  There is no apparent reason why the general provisions of s 41 should not apply to the hearing of an appeal at all its stages, including a hearing of the question whether the appeal has been properly instituted. Section 35(11) appears to have been inserted out of an abundance of caution, … There is nothing in the Act that suggests that the power given by s 4l(1)(m) cannot be exercised after the prescribed time, which is sought to be extended, has expired, if the circumstances justify that course.  (The expression “prescribed time” in s 41(1)(m) refers to a time prescribed by the Act or the regulations thereunder: s 17(q) of the Acts Interpretation Act 1901 (Cth), as amended.)  It is true that many rules of court expressly provide that the court may extend a period of time within which a person is required or authorized to act, although the application for extension is not made until after the expiration of that period, but that does not mean that such a provision is necessary in all cases to enable a period of time which has expired to be extended.  It has recently been held in England that even in the absence of any such provision a court has an inherent power to control its own procedure and enlarge time after the prescribed time has elapsed, and that the older notion, that when the time has expired without the necessary action having been taken the action is dead and cannot be revived, is erroneous: R v Bloomsbury Court; Ex parte Villerwest [1976] 1 WLR 362; 1 All ER 897; Samuels v Linzi Ltd [1981] 013 115.  In those cases the court declined to follow an earlier line of authorities which was accepted as correct by this court in Bailey v Marinoff [1971] 125 CLR 529 - a case which is distinguishable from the present in that the litigation there had been regularly concluded by a formal order of the court, and which in any case rests on a principle which is subject to exceptions:  Wentworth v Attorney-General (NSW) (1984) 154 CLR 518 at 526; 56 ALR 233.  The question in the present case must be answered by deciding what is the true intention of the statutory provision which fixes the time, and having regard to the object of the Act, and the intention revealed by the provisions already mentioned, ss 35 and 41 cannot be regarded as intended to place a technical impediment in the way of the settlement of an industrial dispute on its merits, or as denying to the Commission the power to extend the time prescribed for instituting an appeal when the Commission in its discretion considers that such an extension would be desirable.”

(pages 218 – 221)

60      It is noted that the powers contained in s.41 of the Commonwealth Act are in almost identical terms to those of s.27(1)(l), (m) and (n).  The provisions of s.40(1) of the Commonwealth Act are also similar to provisions contained within s.26(1).  Section 28 says that the powers set out in s.27 “may be exercised in relation to a matter at any time after the matter has been lodged in the Commission notwithstanding that the procedures prescribed under this Act have not at that time been complied with to the extent necessary to enable the matter to be heard and determined by the Commission.”  Further, the provisions of s.80K(4) allow the Board to regulate its own procedure to the extent to which it is not otherwise prescribed. 

61      Accordingly, we find that there are significant similarities between Coldham’s case and this matter, and that according to that case, the provisions of s.27(1)(n) are available in this case.  Coldham’s case also urged the interpretation of the provisions according to the objects and purposes of the legislation, as does the Interpretation Act 1984 (WA).

62      In Project Blue Sky Inc (supra), the High Court of Australia said that the consequences of non-compliance with the provisions are to be considered.  The consequences of not complying with the prescribed time would, in the absence of an extension of that time, be the inability of the appellant to challenge the respondent’s decision to dismiss her.  This would be contrary to the general purpose and objects of the legislation.

63      There has been a number of decisions relating specifically to the terms used in the IR Act relating to extensions of time and how they are to be viewed.  The Full Bench in Arpad Security Agency Pty Ltd and The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch ((1989) 69 WAIG 1287) examined Coldham’s case in reference to the provisions of the IR Act and found that “on that authority which we now apply, it is clear that there is power to extend the time for appeal” (page 1288).  The Full Bench went on to examine the question of whether the power to extend time could be exercised even after the prescribed time had expired and found that it could be so exercised (page 1289).

64      The respondent has given some attention to the wording of the provisions of s.29(3) of the IR Act, and in particular refers to the decision of the Industrial Appeal Court in Aurion Gold v Bilos [2004] WASCA 270.  This decision relates to the former and now current provisions for referring a claim under s.29(1)(b)(i) of the IR Act.  Section 29(2) was formerly expressed in terms which McLure J described as “pre-emptory and prohibitive.”  It was that “a referral cannot be made more than 29 days after” the date of dismissal.  The amendment to the IR Act by the Industrial Relations Amendment Act 1993 (WA) in respect of claims made pursuant to s.29(1)(b)(i) resulted in the following subclauses (2) and (3):

“(2) Subject to subsection (3), a referral under subsection (1)(b)(i) is to be made not later than 28 days after the day on which the employee’s employment is terminated.

(3) The Commission may accept a referral by an employee under subsection (1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so.”

65      McLure J said that “[i]n my view, the conclusion that compliance with the time limit in the former s.29(2) was an essential condition of the right and the Commission did not have power to extend time was correct” (page 9).  However, in respect of the amended provisions, Her Honour said: 

“28 There are strong indications that compliance with subs (2) or (3) constitute an essential preliminary to the exercise of the Commission's jurisdiction. Firstly, if the legislature intended to alter the character of the time limit in subs (2) from substantive to procedural, it is to be expected that the general provision in s 27(n) to extend time would apply, in which event subs (3) would be unnecessary. Secondly, subs (3) gives the Commission an entitlement to "accept a referral", which language is indicative of an extension to the Commission's jurisdiction rather than the exercise of a power in relation to a matter already within jurisdiction. Thirdly, there is nothing in the second reading speech to the Amendment Act to suggest the legislature intended to alter the existing character of the time limit as a condition of the exercise of the right but merely to increase the flexibility of its application.

29 Although the language in subs (2) changes from prohibitive (a referral cannot be made) to positive (a referral is to be made within the time limit), I do not regard this as an unequivocal indicator of a contrary intention. The change in language in subs (2) is consistent with the addition of the alternative means of obtaining jurisdiction introduced in subs (3). The decision of Hanssen Pty Ltd v CFMEU [2004] WAIRC 10828 relied on by the President does not relate to s 29(2) and (3) of the Act and is clearly distinguishable.”

66      However, this decision is relevant in that the provisions of s.29(2) and (3) are to be distinguished from the provisions of s.80J.  There is no prohibitive language in its terms.  They are directory and procedural, being that “[a]n appeal under 80I … shall be instituted in the prescribed … time” (underlining added).  There is no requirement for what the respondent refers to as the “enabling” provisions of s.29(3) in s.80J as the language used in s.29(2) and (3) is significantly different to that in s.80J and Regulation 107(2).  Section 29(2) is subject to subsection (3), so the two subsections must be read together.  As McLure J said, if the legislature had intended to change the previously prohibitive character of s.29(2) “from substantive to procedural, it is to be expected that the general provision in s 27(n) to extend time would apply.”  In that case subsection (3) would be unnecessary.  She went on to note the use of language which distinguished jurisdictional from procedural requirements.

67      The provisions relating to s.29 and s.80J are quite different and are therefore to be applied differently. 

68      The respondent refers also to the decision of Fielding C in E J Richardson v Cecil Bros Pty Ltd ((1994) 74 WAIG 1017).  In that matter, the learned Commissioner was dealing with the terms of the former s.29(2) which at the time said that “[a] referral by an employee under subsection (1)(b)(i) cannot be made more than 28 days” after the dismissal.  He said that the 28 day time limit was not a “prescribed time” in the sense referred to in s.27(1)(n) but, rather, a time limit which proscribes the right to bring proceedings” (page 1018).  Given the term “cannot” used in the former s.29(2), and that s.80J refers specifically to the “prescribed time”, this decision is distinguished from the current matter before the Board and is of no assistance.

69      The Regulations set out the prescribed time as being that “[a]n appeal may be commenced within 21 days …” (Reg. 107(2)).  An examination of the context of Regulation 107(2) within that Regulation is also of assistance.  All other matters dealt with in Regulation 107 are administrative, prescribing the forms to be used; the identification of grounds; the number of copies to be lodged; the service of documents, fixing of a date, time and place of hearing; the amount of notice of the hearing dates to be given; and that the Board cannot commence to hear the appeal until certain documents are filed.  Reading subsection (2) in context, then, it ought to be seen as procedural, not jurisdictional.

70      The terms of s.80J and Reg. 107(2) are also to be compared with those relating to appeals to the Full Bench, set out in ss.49(3) and 84(3), where the language is similar in that the appeals “shall be instituted within 21 days” (underlining added), and to be contrasted with the language in s.29(2) and (3).  It is also to be contrasted with the words used in s.459G(2) of the Corporations Law as described by the High Court in David Grant & Co Pty Ltd (rec appointed) v Westpac Banking Corporation (1995) 184 CLR 265.  Gummow J with whom the other members all agreed, said, at 276-277:

“In providing that an application to the court for an order setting aside a statutory demand “may only” be made within the twenty-one day period there specified and that an application is made in accordance with s 459G only if, within those twenty-one days, a supporting affidavit is filed and a copy thereof and of the applications are served, sub-ss (2) and (3) of s 459G attached a limitation or condition upon the authority of the court to set aside the demand.  In this setting, the use in s 459G(2) of the term “may” does not give rise to the considerations which apply where legislation confers upon a decision-maker an authority of a discretionary kind and the issue is whether “may” is used in a facultative and permissive sense or an imperative sense.  Here, the phrase “[a]n application may only be made within 21 days” should be read as a whole.  The force of the term “may only” is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G.  An integer or element of the right created by s 459G is its exercise by application made within the time specified.  To adapt what was said by Isaacs J in the Crown v McNeil, it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect.  The same is true of sub-s (3).

This consideration gives added force to the proposition which has been accepted in some of the authorities that it is impossible to identify the function or utility of the word “only” in s 459G(2) if it does not mean what it says, which is that the application is to be made within twenty-one days of service of the demand, and not at some time thereafter and that to treat s 1322 as authorising the court to extend the period of twenty-one days specified in s 459G would deprive the word “only” of effect.”

71      In conclusion, in respect of the issue of extending time, the powers of the Commission, set out in s.27, “apply to and in relation to the exercise of the jurisdiction under [the] Act of the Commission constituted by a Commissioner shall apply … to the exercise by a Board of its jurisdiction under [the] Act” (s.80L(1)).  Therefore, s.27 applies to the exercise of jurisdiction, it does not extend or increase the jurisdiction.

72      We find that as the first provision of s.27(1) says that “[e]xcept as otherwise provided” the Commission may do the things set out there “in relation to any matter before it”, and the provisions of s.80J(a) and Regulation 107(2) do not provide otherwise, that the Commission, or the Board in this case, may apply the provisions of s.27(1)(a).

73      In all of those circumstances, we find that the Board has the power pursuant to s.27(1)(n) to extend the prescribed time in which to institute the appeal.

74      Accordingly, taking account of the above authorities and the terms of the IR Act, in particular s.80J, Regulation 107(2) and s.27(1)(n), we conclude that:

1. The Board has jurisdiction to determine its own jurisdiction.

2. The time prescribed by s.80J and Reg. 107(2) is a prescribed time, falling as it does within the IR Act and the Regulations, and is amenable to an extension of time pursuant to s.27(1)(n).

3. The language used in setting out the prescribed time is not prohibitive, nor is it mandatory.  It does not contain an essential condition to the right to lodge the appeal.

4. The language is directory and procedural. 

5. The requirement to comply with the prescribed time is not an essential preliminary to the exercise of statutory power. 

6. The Board has jurisdiction to extent time in which an appeal is to be lodged.