WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2009 WAIRC 00166

DELIVERED : FRIDAY, 3 April 2009

FILE NO. : FBA 8 OF 2008

Appellant

AND

Commissioner, Corrective Services, Dept. of Corrective Services

Respondent

ON APPEAL FROM:

Jurisdiction : Public Service Appeal Board

Coram : Commissioner P E Scott - Chairman

  Mr R Grigoroff - Board Member

  Mr B Dodds - Board Member

Citation : (2008) 88 WAIG 1896

File No : PSAB 7 of 2007

CatchWords:

Industrial Law (WA) - Appeal against decision of the Public Service Appeal Board - Jurisdiction of the Full Bench to hear appeals from Public Service Appeal Board under the Industrial Relations Act 1979 (WA) - Submissions from parties received on question of jurisdiction - State Government Insurance Commission v Johnson (1996) 76 WAIG 4142 applied - No jurisdiction to hear appeal - Appeal dismissed.

Legislation:

Industrial Relations Act 1979 (WA) – Part II Division 2, Part II Division 2E, s49, s49(1), s49(2), Part IIA, Part IIA Division 2, s80C, s80C(1), s80D, s80E(2), s80G, s80H(1) s80H(2), s80H(3), s80H(4), s80H(7), s80I, s80I(1)(a)-(c), s80I(1)(d), s80I(1)(e), s80K, s80K(3), s80L, s80L(1), s80L(2), s80W, s90

Result:

Appeal dismissed

Representation:

Counsel:

Appellant : In person

Respondent : Mr D J Matthews (of Counsel), by leave

Solicitors:

Appellant : Not applicable

Respondent : State Solicitor for Western Australia

Case(s) referred to in reasons:

Ex parte Minister for Corrective Services (1993) 9 WAR 534

Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159

Sealanes (1985) Pty Ltd v Foley (2006) 86 WAIG 1239

State Government Insurance Commission v Johnson (1996) 76 WAIG 4142

Titelius v Public Service Appeal Board and Others [1999] WASCA 19

Case(s) also cited:

Nil

Reasons for Decision

RITTER AP:

Introduction

1         By a notice of appeal dated 10 September 2008 the appellant sought to appeal against a decision of the Public Service Appeal Board (the PSAB) made on 20 August 2008.  The appellant’s application had been dismissed by the PSAB.

The Proceedings in the Full Bench

2         After the filing of the notice of appeal, the appeal was not progressed in the ordinary way by the filing of appeal books.  There was also a serious question as to whether the appellant could appeal against the decision of the PSAB.  That is, whether the Full Bench had the jurisdiction to hear such an appeal.

3         Accordingly, the appeal was listed for a directions hearing on 23 February 2009.  At the directions hearing the Full Bench brought to the attention of the parties the reasons for decision of the Full Bench in State Government Insurance Commission v Johnson (1996) 76 WAIG 4142.  As will be later elaborated upon, in that decision the Full Bench held there was no right of appeal from a decision of the PSAB to the Full Bench.

4         Accordingly, at the directions hearing orders were made for the parties to file and serve written submissions on the question of jurisdiction.

The Submissions on Jurisdiction

5         Written submissions were filed and served by the appellant on 16 March 2009.  Unfortunately these submissions did not, in any way, address the question of jurisdiction or the decision in Johnson.  Instead, at some length, the appellant put forward arguments which were submitted supported the appeal.

6         The respondent’s written submissions were filed and served on 19 March 2009.  It was submitted that in Johnson it was decided the effect of s49(1) and (2) of the Industrial Relations Act 1979 (WA) (the Act) was that no appeal could be made to the Full Bench from a decision of the PSAB because the PSAB did not fall within the meaning of “Commission” for the purposes of s49.  The respondent accepted that Johnson was not binding on a later Full Bench “but there must be very persuasive reasons to depart from it”.  It was contended the appellant’s submissions did not advance any arguments against the decision in Johnson.  Accordingly it was argued Johnson should be followed and the appeal dismissed.

Analysis

7         The respondent’s analysis of the decision in Johnson is correct.  The Full Bench decided there was no right of appeal to the Full Bench against a decision of the PSAB.  (See Sharkey P at 4143, (Coleman CC agreeing) and Fielding SC at 4143).  In his reasons at 4143, Sharkey P said, correctly in my respectful opinion, that the interpretation of the Act which he favoured was supported by Malcolm CJ in Ex parte Minister for Corrective Services (1993) 9 WAR 534 at 540-541.  Sharkey P then quoted an apposite paragraph from the reasons of Malcolm CJ.

8         As conceded by the respondent, an earlier decision of the Full Bench is not binding.  However it would generally only be departed from if it was thought to be “plainly wrong” or “plainly incorrect”.  (See Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159 per Steytler P, Wheeler, Roberts-Smith, McLure and Pullin JJA at [24]-[26], applied in Sealanes (1985) Pty Ltd v Foley (2006) 86 WAIG 1239 at [93]).  In my opinion the decision in Johnson should not be departed from as it was correctly decided.

9         Appeals to the Full Bench are governed by s49 of the Act.  Relevantly s49(1) and (2) provide:

“49. Appeals to Full Bench from decision of Commission under this Act

(1) In this section “the Commission” means the Commission constituted by a commissioner, but does not include the Commission exercising jurisdiction under section 80ZE.

(2) Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.”

10      Accordingly an appeal only lies to the Full Bench against a decision of the Commission when “constituted by a commissioner”.

11      The PSAB is established by s80H(1) of the Act which is within Part IIA.  This part is headed “Constituent authorities”.  Section 80C of the Act provides definitions for some of the words and expressions used in Division 2 of Part IIA.  Section 80C(1) provides that: “‘Board’ means the Commission constituted as a Public Service Appeal Board established under this Division”.

12      Section 80H(1) provides that the PSAB is established “within and as part of the Commission”.  Section 80I sets out the jurisdiction of the PSAB.  Section 80H(2) provides that the “Board shall consist of 3 members”.  Sections 80H(3) and 80H(4) provide for the qualifications for membership of the three members.  Section 80H(3) provides that for appeals referred under s80I(1)(a), (b) or (c), the members of the PSAB shall be “the President”, an employer’s representative and an employee’s representative.  Accordingly decisions made by a PSAB constituted under s80H(3) are not, in any way, made by a commissioner.

13      For appeals referred to the PSAB under s80I(1)(d) or (e), s80H(4) provides that the members of the PSAB are a Public Service Arbitrator, an employer’s representative and an employee’s representative.  Section 80H(7) provides that: “In subsection (4) public service arbitrator means a commissioner who is, for the time being, a public service arbitrator appointed under section 80D”.

14      Section 80K of the Act is headed “Proceedings of Boards”.  Section 80K(3) states that 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”.  As I have said, two of the members of the PSAB are to be an employer’s and employee’s representative respectively.  Accordingly a decision of a PSAB constituted under s80H(4) could be comprised by a majority of these members, with a commissioner sitting as the Public Service Arbitrator dissenting.

15      Section 80L is headed “Certain provisions of Part II Division 2 to apply”.  Part II Division 2 is headed “General jurisdiction and powers of the Commission”.  Section 80L(1) provides:

“80L. Certain provisions of Part II Division 2 to apply

(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.”

16      Section 49 of the Act, which is in Part II Division 2E is not referred to in s80L of the Act or any other section dealing with the PSAB.  Additionally, s80L(1) uses the words “Commission constituted by a commissioner” in contradistinction to “the Board”.  This makes it clear in my opinion that the legislative intention is that the PSAB is not “the Commission constituted by a commissioner”.  The PSAB is, from the definition of “Board” in s80C(1) and the contents of s80H(1) of the Act, part of the Commission, but it is plainly not the Commission “constituted by a commissioner” for the purposes of s49.  It is the Commission constituted by the PSAB which has the three members set out in either s80H(3) or (4).

17      The position of appeals against decisions of the PSAB to the Full Bench may be contrasted to that of the Public Service Arbitrator.  The Arbitrator is a member of the Commission and appeals to the Full Bench are specifically referred to in s80G of the Act, in a way which makes it clear that appeals to the Full Bench lie, other than in respect of a decision of the Arbitrator on a claim mentioned in s80E(2) of the Act.  Additionally, appeals against decisions of the Railways Classification Board, another constituent authority of the Commission, are specifically dealt with in s80W of the Act.

Conclusion

18      For these reasons, in my opinion a decision of the PSAB is not a decision of “the Commission constituted by a commissioner”.  Accordingly the appellant does not have any right to appeal to the Full Bench against a decision of the PSAB under s49 of the Act and the Full Bench has no jurisdiction to hear such an appeal.

Disposition

19      The appeal must therefore be dismissed.

BEECH CC:

20      I have read in advance the draft reasons of his Honour the Acting President and can shortly state my reasons for agreeing with him.  The issue in this matter is whether a decision of the Public Service Appeal Board (PSAB) is able to be appealed to the Full Bench of the Commission.  As the respondent points out, this issue was extensively considered in State Government Insurance Commission v. Johnson (1996) 76 WAIG 4142.  In my view, that decision is correct in finding that the PSAB does not fall within the meaning of "Commission" as that is used in s 49(1) of the Act; the PSAB is not the Commission constituted by a Commissioner. 

21      The correctness of the decision is, in my respectful view, wholly supported by the decision of Malcolm CJ in Titelius v. Public Service Appeal Board and Others [1999] WASCA 19.  In that matter, the Supreme Court of Western Australia considered whether or not a prerogative writ was available for the purpose of judicial review for jurisdictional error on the part of the PSAB.  Malcolm CJ (at [4]) observed that the PSAB is constituted under s 80I of the Industrial Relations Act, 1979 (the Act) and like the Promotions Appeal Board, the PSAB is established "within and part of the WA Industrial Relations Commission" and that no appeal lies from the PSAB to the Commission under s 49(2) of the Act or to the Industrial Appeal Court under s 90.

22      In this matter, Mr Hill seeks to appeal a decision of the PSAB to the Full Bench of the Commission under s 49 of the Act.  There is no right of appeal for the reasons I have set out above.  I agree with the Order to issue.

HARRISON C:

23      I have had the benefit of reading the reasons to be published by his Honour the Acting President.  I agree with those reasons and the order proposed.