WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2011 WAIRC 00058

DELIVERED : THURSDAY, 27 JANUARY 2011

FILE NO. : FBA 21 OF 2010

Appellant

AND

The State School Teachers' Union of WA (Inc)

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S J Kenner

Citation : [2010] WAIRC 00994

File No : C 32 of 2010

CatchWords : Industrial law (WA) - Appeal against finding of a single Commissioner - Application for conference pursuant to s 44 of the Industrial Relations Act 1979 (WA) - Public interest - Compulsory conference - Jurisdiction/preconditions of the Commission to make the order made considered - Whether interim order made finally disposed of any of the issues in dispute - Appeal allowed - Industrial Relations Act 1979 (WA) s 6, s 7, s 26, s 26(1)(a), s 26(1)(b), s 26(1)(c), s 26(2), s 27, s 29(1)(b)(i), s 44, s 44(6), s 44(6)(ba), s 44(6)(ba)(ii), s 44(6)(ba)(iii), s 44(6)(bb), s 44(9), s 49(2), s 49(2a), s 66, s 66(2);  Public Service Management Act 1994 (WA) Part 5 Division 3, s 78, s 80, s 86(3)(b), s 86(8)(a), s 86(9)(b)(ii), s 86(10)(a);  School Education Act 1999 (WA) s 240;  Western Australian College of Teaching Act 2004 (WA) Part 7.

Result : Appeal allowed and order quashed

Representation:

Appellant : Mr R Andretich (of counsel) and Mr J Misso (of counsel)

Respondent : Mr M Amati

Reasons for Decision

SMITH AP:

Background

1          The Director General, Department of Education (the appellant) appeals from an order of the Commission in application C 32 of 2010 made under s 44 of the Industrial Relations Act 1979 (WA) (the Act) to reinstate Mr Rudresh Dakoor.  The order was made after The State School Teachers’ Union of W.A. (Incorporated) (the SSTU) applied to the Commission on 23 August 2010 for an urgent conference under s 44 of the Act to conciliate a dispute relating to Mr Dakoor, a teacher employed by the appellant and member of the SSTU, as a result of what the SSTU alleged in the application to be an unfair, oppressive and unlawful disciplinary process by the appellant. 

2          Mr Dakoor was employed by the appellant as a teacher, on a fixed term contract which commenced on 19 April 2010 and terminated on 2 July 2010.  When Mr Dakoor’s contract first commenced he was posted to Kalgoorlie-Boulder Community High School.  The appellant says two incidents at the Kalgoorlie-Boulder Community High School on 6 May 2010 and 12 May 2010 respectively, led to the appellant to suspect that Mr Dakoor may have committed breaches of discipline as defined in s 80 of the Public Sector Management Act 1994 (WA) (the PSM Act), and that Mr Dakoor’s continued presence on the school premises constituted a risk to the safety or welfare of students on the premises.  The two suspected breaches of discipline led to an order being made on 17 May 2010 by the appellant pursuant to s 240 of the School Education Act 1999 (WA). The appellant exercised the power in s 240 of the School Education Act to order Mr Dakoor to remain away from the Kalgoorlie-Boulder Community High School while the suspected breaches of discipline were investigated and directed him to report to Mr Jim Webb, Director of Schools, at the Swan District Education Office from 19 May 2010. 

3          In the application filed in the Commission, the SSTU claimed that the letter from the appellant dated 17 May 2010 containing the s 240 order directed Mr Dakoor to report to the Swan District Education Office until further notice.  The SSTU contended the terms of the order changed the terms of Mr Dakoor’s employment contract, and in failing to honour these terms the SSTU argued:

The Director General no longer has jurisdiction to deal with the disciplinary procedures against [Mr Dakoor], pursuant to Part 5, Division 3, of the PSM Act 1994; notwithstanding its statement that the disciplinary process would be continued.

4          On 23 June 2010, Mr Dakoor received a letter dated 17 June 2010, which only listed one allegation as a breach of discipline and requested Mr Dakoor’s response within five days.  On 25 June 2010, Mr Dakoor provided a written response to the allegation.

5          On 11 August 2010, whilst Mr Dakoor was still reporting and working at the Swan District Education Office, Mr Dakoor sent an email to Mr Webb stating that he had not received any payment for work after 16 July 2010.  On 12 August 2010, Mr Webb responded to Mr Dakoor by email stating that he should no longer report to the Swan District Education Office as Mr Dakoor’s fixed term contract ended on 2 July 2010.

6          At the same time the Director General commenced disciplinary proceedings, the Western Australian College of Teaching instituted an inquiry on 21 May 2010 pursuant to pt 7 of the Western Australian College of Teaching Act 2004 (WA). 

7          In the application for a s 44 conference, the SSTU:

(a) argued that in issuing the order pursuant to s 240 of the School Education Act, the appellant acted unreasonably, harshly and in an oppressive way; as well as ultra vires; and thereby unlawfully, in that the appellant failed to afford Mr Dakoor his right to natural justice and procedural fairness.

(b) argued that by failing to honour the changed terms of Mr Dakoor’s employment contract, the appellant no longer had jurisdiction to deal with the disciplinary procedures against Mr Dakoor pursuant to pt 5, div 3, of the PSM Act; notwithstanding a statement that the disciplinary process would be continued by the appellant.  Importantly the SSTU was of the view that the disciplinary processes implemented under pt 5, div 3 of the PSM Act should be continued to the conclusion of those processes.

(c) sought an order that:

(i) the appellant honour the changed terms of Mr Dakoor’s contract of employment, as these were specified by the appellant in the correspondence to Mr Dakoor on 17 May 2010, until the finalisation of the disciplinary proceedings against Mr Dakoor.

(ii) alternatively the SSTU sought an order that:

(1) the order issued by the appellant against Mr Dakoor on 17 May 2010 pursuant to s 240 of the School Education Act, is ultra vires and, consequently null and void and of no effect; and

(2) the appellant is to advise the Western Australian College of Teaching of that fact forthwith.

8          As a consequence of the filing of the application by the SSTU, the Commission convened an urgent compulsory conference pursuant to s 44 of the Act on 1 September 2010.  However, conciliation was unavailing in resolving the dispute between the parties. 

9          On 6 September 2010, the SSTU applied to the Commission for interim orders requiring the appellant to retain Mr Dakoor in employment at the Swan District Education Office until the allegations against him were dealt with in accordance with the discipline process.  In the application for the interim order the SSTU sought the following:

1. A declaration in the following terms:

‘That the electronic mail, dated the 12 August 2010 and sent by Mr Webb on behalf of the respondent, is hereby declared null and void and of no effect’.

2. An order in the following terms:

‘That, consistent with the terms contained in the respondent's correspondence on the 17 May 2010 to Mr Dakoor, the respondent is hereby ordered to retain Mr Dakoor in employment at the Swan District Education Office until “...the allegations are dealt with in accordance with the discipline process...”’.

3. Any other order that the Commission deems to be just and appropriate

10       After the learned commissioner had regard to written submissions filed by the parties, he made the following order:

(1) THAT Mr R Dakoor be continued in employment by the respondent in the classification of teacher retrospective to 12 August 2010 undertaking such duties as may be directed by the respondent for the purposes of the disposition of the current disciplinary proceedings under Part 5 of the Public Sector Management Act 1994 and any appeal pursuant to s 78 of that Act.

(2) THAT this order continues in force until further order of the Commission.

(3) THAT the parties have liberty to apply.

11       In reasons for decision that issued on 12 October 2010, the learned commissioner:

(a) found the relevant principles in relation to the grant of interim orders sought by the SSTU under s 44 are now reasonably well settled and that the principles applicable generally to the granting of interim injunctions are applicable with appropriate modifications.  In support of this finding the learned commissioner relied upon a decision of Sharkey P in Brown v President, State School Teachers’ Union of WA (Inc) (1989) 69 WAIG 1390 and a decision of a single commissioner in ALHMWU v National Foods Pty Ltd (2004) 84 WAIG 3395.

(b) expressed the view that there were serious questions to be determined as to whether an order pursuant to s 240 of the School Education Act can operate in respect of a person employed at the premises of a government school, who ceases to be an employee;

(b) observed that the conduct alleged against Mr Dakoor in the notice issued to him pursuant to s 240 occurred on 6 and 12 May 2010 but the s 240 order was not received by Mr Dakoor until 23 May 2010; 

(c) found that it was not apparent that despite this period of time, Mr Dakoor was given any opportunity to respond to the allegations against him and it was not readily apparent as to why Mr Dakoor could not have been given some opportunity to at least initially respond to the allegations put against him prior to the issuance of the s 240 order.

12       In relation to the disciplinary proceedings that had commenced against Mr Dakoor, the learned commissioner:

(a) observed that serious questions arise as to how the terms of pt 5 of the PSM Act can have application to a person who is no longer an employee of the appellant;

(b) found this issue to be of greater significance in the matter, as the disciplinary process purportedly brought pursuant to pt 5 of the PSM Act could have major negative consequences for Mr Dakoor;

(c) observed if it was ultimately held that pt 5 has no application to Mr Dakoor he will be unable to avail himself of any legal remedy to overturn such findings;

(d) found that it would be unfair and unjust for Mr Dakoor to potentially be deprived of the opportunity of availing his rights under the disciplinary process contained in pt 5 of the PSM Act, given the appellant has initiated the disciplinary process and has continued with it;

(e) found that Mr Dakoor should remain in employment whilst the disciplinary process was completed and by making an interim order to that effect would avoid any doubt as to the capacity for Mr Dakoor to vindicate his rights under the PSM Act and the process initiated by the appellant;

(f) found that making such an order would be consistent with equity and good conscience which the Commission is required to apply by reason of s 26(1)(a) of the Act;

(g) found the balance of convenience rests with the SSTU even having regard to some burden it would place on the appellant in the interim.

13       The learned commissioner found that the making of an interim order was consistent with s 44(6)(ba)(ii) of the Act in that it would enable conciliation or alternatively arbitration, to resolve the matter in question, in the event that Mr Dakoor challenges the findings of the disciplinary process instituted by the appellant under the PSM Act.  The learned commissioner also held that the interim order should not be open-ended, that it should only enable Mr Dakoor to be properly subject to the disciplinary processes under the PSM Act and given an opportunity to exercise his rights of appeal, pursuant to s 78 of the PSM Act, unless the matter was resolved in the meantime.

The Appeal

14       The grounds of the appeal are as follows:

1. The Commission erred in the exercise of its discretion to grant the Respondent's application for interim orders, by failing to give any or sufficient weight to the proper purposes for which interim orders ought to be made under section 44(6) of the Industrial Relations Act 1979 (WA) (‘IR Act’).

Particulars

The Commission failed to accord sufficient weight to the fact that the interim orders:

a. effectively provide the relief sought by the respondent in the application at an interim stage and thus render the substantive application nugatory; and

b. do not preserve the status quo but rather positively compel the appellant to re-engage Mr Rudresh Dakoor as a teacher beyond the term of his fixed term contract of employment, for the sole purpose of completing a disciplinary process under Part 5 of the Public Sector Management Act 1994 (WA) (‘PSM Act’).

2. The Commission erred in law in finding that pursuant to section 44(6)(ba)(ii) of the IR Act, the making of the interim orders would enable conciliation or alternatively arbitration to resolve the matters in question in the substantive application, which are:

a. whether Part 5 of the PSM Act applies to persons who have ceased to be employees of the appellant; and

b. whether the order made by the appellant pursuant to section 240 of the School Education Act 1999 (WA) was unlawful.

3. The Commission erred in law in failing to properly consider whether a prima facie case existed for the granting of the interim orders sought by the respondent.

4. The Commission erred in law in finding that if the appellant's disciplinary process was held to be void ab initio, Mr Dakoor would be unable to avail himself of any legal remedy to overturn findings of fact made against him.

15       The orders sought by the appellant are as follows:

1. The appeal be allowed.

2. The orders of the Commission made on 18 October 2010 be quashed.

3. The respondent’s application for interim orders be dismissed.

4. Application C 32 of 2010 be remitted to the learned commissioner for conciliation or alternatively arbitration.

The Appellant’s Submissions

16       The appellant says that leave to appeal should be granted in this matter as the grounds for appeal raise an important and substantial question of law affecting the jurisdiction of the Commission, that is whether the Commission has the power to make interim orders pursuant to s 44(6) of the Act which dispose of one or more of the substantive issues in dispute between the parties.

17       The appellant says that the terms of application C 32 of 2010 made it clear that the matters in question between the SSTU and the appellant at and in relation to the compulsory conference were:

(a) Whether the appellant had lawful authority to conduct disciplinary proceedings pursuant to pt 5, div 3 of the PSM Act, notwithstanding that Mr Dakoor was no longer an employee of the appellant; and

(b) Whether Mr Dakoor was accorded procedural fairness before the appellant made an order pursuant to s 240 of the School Education Act, and thus whether the s 240 order was lawfully made.

(a) Ground 1 and Ground 2

18       Although the appellant’s grounds of appeal in ground 1 deal with an exercise of discretion the appellant’s submissions in respect of this ground do not raise an issue which goes to the discretion to make an order that is within power pursuant to s 44(6)(ba) but to the jurisdiction to make orders under s 44(6)(ba) which is the issue raised in ground 2. 

19       The appellant argues that the Commission had no power to make the order under s 44(6)(ba) of the Act.  Central to the appellant’s argument is that orders made under s 44(6) of the Act are interim by their very nature and cannot dispose of a matter.  They can exist only in advance of further conciliation or arbitration required to resolve the issues in dispute: CFMEU v BHP Billiton Iron Ore Pty Ltd (2006) 86 WAIG 1420 [24]; Burswood Resort (Management) Ltd v ALHMWU (2003) 83 WAIG 3314 [40]. 

20       The appellant points out that an order which purports to finally determine the essence of a matter in dispute between the parties, without agreement or without hearing or determining the matter, is incompetent and inconsistent with the purpose of the powers conferred by s 44(6) of the Act. 

21       The appellant also points out that the SSTU did not challenge any findings of the disciplinary process which has commenced and continued by the appellant under pt 5 of the PSM Act.  At the point in time when the interim order was made no findings had been made by the appellant under the disciplinary process.  The ‘matter in question’ before the Commission, for the purposes of s 44(6)(ba)(ii) of the Act, was not the correctness of any disciplinary finding, but rather the authority of the appellant to proceed with the disciplinary process and the lawfulness of the s 240 order.  Consequently, the appellant says the Commission erred in finding the making of the interim order would, in accordance with s 44(6)(ba)(ii), enable conciliation or arbitration to resolve the matter in question.  The appellant says that the mere recitation of a statutory condition for the exercise of a power does not immunise the exercise that power from the appellate review, and the reasons for decision about the exercise of a power can be considered to see if they demonstrate a proper foundation for the exercise of the power. 

22       The appellant says it is clear that if Mr Dakoor remained in employment, pt 5 of the PSM Act will apply to the disciplinary proceedings continued by the appellant in respect of Mr Dakoor.  The appellant argues that the Commission in making the order erred by effectively determining the substantial matter in question without arbitrating the issue of the authority of the appellant to conduct disciplinary proceedings in relation to Mr Dakoor.  By making the order, this issue has been put beyond doubt by the Commission and in effect there is no issue left to be tried, as the interim order made by the Commission provides the SSTU with final relief sought in application C 32 of 2010 and thus renders conciliation or arbitration of application C 32 of 2010 nugatory, because the SSTU had obtained the final relief it sought, at an interim stage. The purpose of the re-employment Mr Dakoor and thus the order is to place the application of pt 5 of the PSM Act to Mr Dakoor beyond doubt.  The appellant concedes that the issue whether the s 240 order is valid remains to be determined, as this issue is not dealt with by the terms of the interim order. The appellant says this fact is not fatal to their argument as the terms of the interim order finally disposed of one important issue in dispute between the parties.  However, the appellant points out that the validity of the s 240 order can be dealt with without Mr Dakoor remaining in employment.  It is also argued that the fact that the interim order gives the parties liberty to apply to amend or bring the order to an end, does not, in the absence of changed circumstances, provide the appellant with the ability to argue that the order should be revoked.

23       The appellant also says that the interim order made by the Commission do not preserve the status quo, but rather require the re-employment of Mr Dakoor beyond the term of his six‑month contract of employment. 

24       The appellant points out that the Commission did not find that there was prima facie case that the disciplinary process was not authorised by pt 5 of the PSM Act.  Even if such a finding was made, the appellant says an appropriate interim order in such circumstances would have been an order staying the disciplinary process or staying the s 240 order, thereby preserving the status quo until the Commission could finally determine whether the appellant had authority to continue with the disciplinary process.

25       The appellant also says that there is nothing in the interim order or reasons for decision of the Commission, express or implied, which would establish that the order was made because of the requisite opinion founded on either s 44(6)(ba)(i) or (iii). 

26       The appellant also says that even if the SSTU demonstrated at the final arbitration of the matter, that the s 240 order was invalid and that pt 5 of the PSM Act does not apply to Mr Dakoor, the orders sought at an interim stage could not be a logical or appropriate final remedy as the interim orders constitute ‘free standing’ relief at an interim stage in the proceedings.  The appellant contends there can be no justification, in principle, for granting an interlocutory injunction other than to observe the subject matter of the dispute, and to maintain the status quo pending the determination and the rights of the parties.  If the applicant for interim relief cannot show a sufficient colour of right of the kinds sought to be vindicated by final relief, the foundation of the claim for interlocutory relief disappears.  A proposition that a person can have a ‘free standing’ right to interlocutory relief is a contradiction in terms: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 218 (Gleeson CJ).

27       The appellant says the interim order constitutes ‘free standing’ relief at an interim stage in the proceedings.  The basis for the interim order was not to prevent the deterioration of industrial relations pending the hearing and determination of the dispute, nor was it to encourage the parties to exchange or divulge attitudes or information which would assist in the resolution of the matter in question, for the purposes of s 44(6)(ba)(i) or (iii).  Consequently the appellant says there was no justification for granting ‘free standing’ relief in the terms of the interim order pursuant to s 44(6) in this case.

(b) Ground 3

28       In ground 3, the appellant argued that the Commission should have considered whether a prima facie case existed for the granting of the interim order sought by the SSTU.  In relation to this ground the appellant made a submission in a written outline of submissions that the principles which apply to the granting of interim orders under the Act are as set out by Sharkey P in a matter concerning the power to make interim orders under s 66 of the Act in Brown.

29       During oral argument the appellant abandoned this submission as it was conceded that the principles in Brown should not be applied to the making of an interim order under s 44(6) of the Act as s 44(6)(ba) expressly sets out the pre-conditions of the exercise of the discretion to make an interim order under s 44(6).  However, whilst the appellant says that the pre‑conditions in s 44(6)(ba) are a complete statement the appellant says that it may be appropriate to apply the principles in Brown to ‘guide’ the exercise of discretion but those principles do not replace the application of the express pre-conditions in s 44(6)(ba).

(c) Ground 4

30       In ground 4 the appellant argues the Commission erred in law in finding that if the disciplinary process was held to be void ab initio, Mr Dakoor would be unable to avail himself of any legal remedy to overturn findings of facts made against him.  In support of ground 4 the appellant points out that s 78 of the PSM Act confers a right on Mr Dakoor to refer a decision of the appellant, made under s 86(3)(b), s 86(8)(a), s 86(9)(b)(ii) or s 86(10)(a) of the PSM Act, to the Commission, pursuant to s 29(1)(b)(i) of the Act.  They say upon hearing and determination of the serious question to be tried in these proceedings, the Commission determines that pt 5 of the PSM Act applies to former employees, Mr Dakoor will be entitled to the right of appeal conferred by s 78 of the PSM Act.  If, however, the Commission decides that pt 5 of the PSM Act has no application to former employees, the disciplinary process pursued by the appellant will be null and void.  However while the evidence stands on its own and is not tarnished by an unlawful disciplinary process, the findings of fact and outcome of an unlawful disciplinary process are null and void: The Civil Service Association of Western Australia Incorporated v Chief Executive Officer, Department of Land Administration [2003] WAIRC 08890; (2003) 83 WAIG 2792 [40]. 

31       The appellant also says that Mr Dakoor would have an avenue of review if the appellant made a decision not to re-employ Mr Dakoor because of findings of fact made under an unlawful disciplinary process would constitute an ‘industrial matter’ within the general jurisdiction of the Commission. 

The SSTU’s Submissions

32       The SSTU contends that the learned commissioner at first instance exercised his discretion in accordance with the law and no error is evident, as it was open to the commissioner on the facts that were before him to make the interim order.  The SSTU also says that the interim order was authorised expressly by the provisions of s 44 of the Act.  The SSTU points out that it is well settled that the Commission’s powers to issue orders under s 44(6)(ba) and (bb) of the Act are very broad and, on a proper construction of the Act, there is no justification for reading down the powers in s 44(6):  RRIA v AMWSU (1989) 69 WAIG 990 (992) and (999) (Nicholson J).  Also the provisions of s 44 of the Act should not be read down as it is a section with broad purpose:  Crewe and Sons Pty Ltd v AMWSU (1989) 69 WAIG 2623 (2625); Burswood Resort (Management) Ltd v ALHMWU (2003) 83 WAIG 3556 (3562).

33       The SSTU concedes that orders made pursuant to s 44(6) of the Act are temporary or ‘interim’ in nature in that they have effect in advance of further conciliation or final arbitration of the relevant industrial matter; as such orders do not finally dispose of the relevant industrial matter:  Burswood.  Consequently the SSTU says that provided that the orders are properly expressed in ‘interim terms’ in the recitals to an order, it is open to the Commission to issue an order for the temporary reinstatement of an employee or redeployment of an employee so as to enable conciliation or arbitration to resolve the matter in question:  Burswood [48], [49], [53], [54] and [55].

34       The SSTU says the learned commissioner in this matter found the facts of the industrial matter were such that the issuing of the interim order was consistent with s 44(6)(ba)(ii) of the Act, in that it would enable conciliation or alternatively arbitration, to resolve the matter in question, in the event that Mr Dakoor challenges the findings of the disciplinary process instituted by the SSTU under the PSM Act.  The essence of the SSTU’s argument is that it says that the appellant has construed the issues in dispute too narrowly and that the industrial matter in question is an allegation by the SSTU that Mr Dakoor has been subjected to an unfair, oppressive and unlawful disciplinary process.  The SSTU says that if this is accepted as defining in the issues in dispute between the parties that it is apparent that the order made by the Commission was truly an interim order and not in excess of jurisdiction under s 44(6) of the Act as the interim order did not finally dispose of the relevant industrial matter.

35       Consequently the SSTU argues that the interim order has the effect of ‘enabling’ further conciliation or alternatively arbitration to resolve the broad matter in question, on the one hand, and the potential capacity of Mr Dakoor to challenge the findings of the disciplinary process instituted by the appellant against him, on the other, are inextricable from each other.  In other words they say that no further conciliation or final arbitration of the industrial matter currently in front of the Commission would be possible, without the issuing of the interim order as Mr Dakoor would no longer be an employee of the appellant.

36       When pressed by members of the Full Bench about what was the matter in question that required further conciliation or alternatively arbitration, Mr Amati on behalf of the SSTU made a submission that the matter in question was the capacity of Mr Dakoor to redress the allegations made against him and vindicate his rights of appeal under pt 5 of the PSM Act and that unless his employment continued it would be unfair and unreasonable if he could not exercise those rights under pt 5 of the PSM Act. When asked what was left to arbitrate after the interim order was made, Mr Amati said that the full process under pt 5 of the PSM Act and the lawfulness of the s 240 order were issues still outstanding.  He also argued that whether estoppel exists was also left and that this was not overtaken by the terms of the interim order as there was payment for a period by the appellant when the respondent was not employed for which the appellant was required to pay pursuant to the terms of the interim order and estoppel could prevent the appellant from recovering money for this period of time.

37       The SSTU says the Commission issued the interim order pursuant to s 44(6) of the Act so as to maintain the status quo; or, put another way, to give effect to the restoration of Mr Dakoor’s employment with the appellant so as to remove any doubts about the applicability of pt 5, div 3 of the PSM Act to Mr Dakoor and his capacity to exercise his rights of appeal pursuant to s 78 of the PSM Act.

38       The SSTU argues that if this Full Bench were to quash the interim order the effect would be that Mr Dakoor would no longer be an employee of the appellant which would have the effect of reducing the question of applicability of the PSM Act to former employees to an abstract and inconsequential exercise.  Furthermore, given the prima facie findings of the learned commissioner about the uncertainty of the application of the PSM Act to former employees, the quashing of the interim order would undesirably result in the inability for the Commission to hear and determine the industrial matter forming the substance of C 32 of 2010 as Mr Dakoor would no longer be an employee of the appellant.

39       It also argued that it is undeniable that order (1) of the interim order is expressed as being of finite effect, as it restores Mr Dakoor’s employment relationship with the appellant only for the purpose of the disposition of the current disciplinary proceedings under pt 5 of the PSM Act and in the appeal pursuant to s 78 of that Act, as opposed to an ‘on-going’ or ‘indefinite’ restoration of Mr Dakoor’s employment with the appellant.  Also the SSTU says the effect of order (2) of the interim order ensures the ‘interim’ character of the order in that order (1) is to have effect only in advance of further orders by the Commission and that insofar as order (3) provides for liberty to apply there is ‘no finality’ to the role of the Commission as constituted in C 32 of 2010, that is, it is not functus officio.

40       It is also said that the interim order has no ‘nugatory’ effect on the substantive industrial matter; except it is conceded that it is probable that the appellant will be unable to recover the pay received by Mr Dakoor during his interim employment with the appellant, in the event that the order is quashed by the Full Bench.  However, the SSTU says that nothing would prevent the appellant from attempting to recover the abridging portion of salary paid to Mr Dakoor as a result of the interim order in respect of a period of time for which he has not worked.

41       The SSTU says that the principal object of the relief sought was the retaining of Mr Dakoor’s employment relationship with the appellant on an interim basis and the reason why the SSTU sought that an order be made that the s 240 order be voided was to enable Mr Dakoor to find future employment with the appellant in another school, which he was being offered.  Evidence was provided to the Commission in an affidavit by Mr Dakoor that he had been offered employment with other schools.  Consequently the SSTU says that if the s 240 order had been or is declared void he could have sought and obtained alternative employment and the issue of the uncertainty of the applicability of pt 5 of the PSM Act would not have arisen.

42       Mr Amati informed the Full Bench that Mr Dakoor has not challenged the applicability of pt 5 of the PSM Act to his circumstances because as a teacher in the public school system, submitting himself to the PSM Act procedures is the only choice notwithstanding the SSTU says the process that has been implemented is fraught with concerns about the apparent defective processes.

43       The SSTU argues, there is nothing that has been ‘finally disposed’ by the terms of the interim order as Mr Dakoor would no longer be employed by the appellant following the conclusion of the proceedings under pt 5 of the PSM Act and the exercise of any potential right of appeal by him.  Consequently they say on the authority of Burswood, it was open to the learned commissioner to make such an order.  They also say there is no finality to the original application by the making of the interim order as the appellant’s processes have not been finalised in regards to Mr Dakoor and the order only exists in advance of a potential or probable hearing and determination of the substantive matter by the Commission.  Indeed, nothing prevents the Commission to confirm or otherwise make a finding in regard to this issue.  A positive finding of the inapplicability of the PSM Act would, however, ensure that the whole of the other aspects of the industrial matter raised by C 32 of 2010 would be able to be determined in accordance with the law; an onus that the Commission could not discharge in the event that no interim order was issued.

44       The SSTU also says learned commissioner did not discount the possibility of further conciliation taking place between the parties and by doing so was consistent with s 44(6)(ba)(iii) of the Act in terms of encouraging the exchange of information and attitudes between the parties.  However not mentioning this subsection of s 44 does not indicate that the Commission fell into error:  RRIA v AMWSU.

45       As to the public interest, the SSTU says it is not in the public interest to allow the appeal at this stage of the proceedings as the appellant retains her full appeal rights under the Act in the event that the Commission’s decision and determination of the substantive matters went against the appellant in the first instance.  In this sense they say this appeal is premature.  They also say that the appellant’s attempts to ‘re-argue’ matters that were clearly dealt with by the learned commissioner in a manner that was fair, lawful and correct especially in the relative albeit minor, interim burden of continuing Mr Dakoor’s employment until the finalisation of the statutory process under the PSM Act was complete borders on an undue abuse of process.

46       The SSTU say that s 26(1)(a) and s 26(1)(c) of the Act would not be served by a too fast intervention of the Full Bench to interfere with the Commission’s interim order in that an industrial matter arising out of the employment of Mr Dakoor with the appellant would, in all probabilities, remain unresolved; thereby leaving Mr Dakoor in professional and financial deep uncertainty and disadvantage.

47       They also say it would not be in the public interest to leave Mr Dakoor to face the prospect of the appellant disavowing its application in circumstances where he may seek to vindicate any right of appeal.  The effect of this would result in increasing uncertainty in industrial relations which is neither desirable nor fair.  Further it is not in the public interest to allow this appeal where prima facie the appellant is said to have breached its statutory obligations under s 240 of the School Education Act. 

48       The SSTU also submits that there is not a substantial case to be tried, as the reasoning of the Commission is clear and in accordance with the relevant statutory scheme and applicable legal principles.

49       At the conclusion of the hearing the SSTU was invited to make a written submission about whether the principles in Brown should be applied by the Commission to an exercise of discretion under s 44(6)(ba) of the Act.  In written submissions filed on 21 December 2010 the SSTU says the principles articulated by Sharkey P in Brown properly apply to s 44.  In particular they make a submission that through the operation of the definition of ‘industrial matter’ in s 7 and the terms of s 44, the legislature has entrusted the Commission with the broadest discretionary powers to deal with ‘any matter’ that may arise between an employer and employee through an organisation of employees, that, in turn, may give rise to an industrial situation (or industrial dispute or action) that would be unresolvable by the Commission (or be unable to ‘enable’ further conciliation or to arbitrate).  In practice the ‘character’ of ‘industrial matters’ that arise are wide and varied.  Further, s 26 of the Act compels the Commission to exercise its discretionary power in a manner that is consistent with s 7 and the objects in s 6 of the Act.  Therefore they say that through the structure of the Act, its objects and manner of operation, the Commission is entrusted with an unfettered responsibility to deal with and resolve any ‘industrial matter’ which would include the ‘interim’ preservation of the legal right of a party until the Commission is disposed to resolve the relevant industrial matter.

Legal Principles that Apply as Pre-conditions to the Exercise of Power Under s 44(6) of the Act

50       Proceedings under s 44 of the Act are to be conducted with a great deal of informality and often with urgency.  As Le Miere AP, Beech CC and Kenner C recently observed in Liquor Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training (2010) 90 WAIG 1517 (1522) [30]:

There are a number of provisions of the Act that are relevant to this issue.  A principal object of the Act is to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality:  s 6(c).  In exercising its jurisdiction the Commission shall not be bound by any rules of evidence but may inform itself on any matter in such a way as it thinks just:  s 26(1)(b).  Section 44(1) empowers a Commissioner to summon any person to attend, at a time and place specified in the summons, at a conference before the Commission.  Any person so summoned shall, except for good cause, attend the conference at the time and place specified and continue his attendance as directed by the Commission:  s 44(3).  A conference under s 44 is held in private unless the Commission determines otherwise:  s 44(5).  The Commission may exercise the power conferred on it by s 44(1) on the motion of the Commission itself whenever industrial action has occurred or, in the opinion of the Commission, is likely to occur:  s 44(7)(b).

51       The powers conferred on the Commission pursuant to s 44 enable the Commission to deal with a wide variety of matters, some of which will entail a consideration and determination of existing rights and liabilities, which require an exercise of judicial power such as whether an employee has been unfairly dismissed or is owed contractual entitlements.  Other matters will entail claims for the creation of new rights and entitlements, which will require an exercise of arbitral power, such as a claim for an increase in pay to a group of employees.  A consideration of the functions of arbitral and judicial power becomes relevant when considering the application of the principles applied in Brown in respect of the making of interim orders.

52       The difference between the two functions was explained by Isaacs and Rich JJ in The Waterside Workers' Federation of Australia v. J W Alexander Ltd (1918) 25 CLR 434 at 463 as:

… the judicial power is concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment proceedings are instituted; whereas the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other.

53       In Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 666 the High Court put the distinction more simply:

The purpose of the Commission's inquiry is to determine whether rights and obligations should be created.  The purpose of a court's inquiry and determination is to decide whether a pre-existing legal obligation has been breached, and if so, what penalty should attach to the breach.

54       A judicial function arises when the resolution sought is ascertainment of legal rights and obligations as opposed to the creation of new rights and obligations.

55       Providing the Commission does not seek to enforce an award, or make a bald declaration, the Commission can act judicially under s 44 of the Act: The Hospital Laundry and Linen Service v The Federated Miscellaneous Workers’ Union of Australia, Western Australian Branch (1993) 74 WAIG 45 (52); J-Corp Pty Ltd v The Australian Builders’ Labourers’ Federated Union of Workers, Western Australian Branch (1993) 73 WAIG 1185 (1188); The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Roman Catholic Bishop of Bunbury Chancery Office (2007) 87 WAIG 1147.

56       In Brown, Sharkey P found the President of the Commission had power to make interim and final orders pursuant to s 66(2) of the Act which empowers the President upon application to make such order or give such directions relating to the rules of the organisation as he considers appropriate.  His Honour observed that the ensuing sub-sections do not limit that wide power and found that it would make a nonsense of the power if a breach of a rule complained against were allowed to occur, whilst the matter was being determined (1393).  He also said that the decisions which considered the power to make interim orders under s 44 (and at that time s 32) were distinguishable as these provisions contain a carefully directed process of conciliation and arbitration and both have their own prescriptions for conciliation and arbitration (1393).  President Sharkey then formulated the following principles that in his view should guide the President’s unfettered discretion to make interim orders and give interim directions under s 66 as follows (1393):

(a) That as a matter of discretion, it is just and correct for me to make the order in all the circumstances.

(b) That, in fact, there is a substantial matter to be tried.

(c) That the plaintiff has a prima facie case for relief if the evidence on which the order is made is accepted at trial.

In addition, the Commission must consider:-

(a) The damage which may be done to the respondent by granting the order as against the damage to the applicant if it is not granted.

(b) Any irreversible consequences of the granting of the order.

(c) The promptness or otherwise of the application.

(d) Any other relevant consideration.

57       The principles set out in Brown which apply the principles that apply to interim injunctions in common law courts in my opinion should not be applied to applications for interim orders under s 44(6)(ba) for the following reasons:

(a) President Sharkey rightly observed in Brown that the power to make interim orders pursuant to s 44 of the Act were distinguishable from the powers in s 66(2) of the Act.  Section 66(2) provides a much wider power to make interim orders than s 44.  In particular, the pre-conditions for the exercise of the power to make an interim order are prescribed in each sub-section of s 44(6).  Unlike s 66(2), s 44(6)(ba) does not provide a discretion at large.

(b) Unlike s 66, s 44 contains a scheme of conciliation followed by arbitration if necessary, whereas there is no power under s 66 to conciliate or arbitrate any industrial matter.  Section 66 confers judicial power on the President to deal with particular complaints against registered organisations.

(c) The principles that apply to interim injunctions generally apply in jurisdictions that exercise only judicial power.

(d) Whilst s 26 and s 27 apply to an exercise of jurisdiction under s 66 and s 44 of the Act, s 26(1)(c) is often relevant to applications for interim orders under s 44(6)(ba) in particular, the Commission is often called upon to consider the interests of persons immediately affected or not and the interests of the community as a whole, which requires a consideration of different matters than only considering the interests of the parties which is the focus of matters considered in an application for an interim injunction in a court exercising common law jurisdiction.  Also the Commission is not bound by the rules of evidence and is required to act according to equity, good conscience and the substantial merits of the case (s 26(1)(a) and s 26(1)(b)).

58       Section 44 provides for an informal procedure for the Commission to intervene in an industrial dispute promptly and impose interim orders on a party when the pre‑conditions set out in s 44(6)(ba) are met.  Section 44(6)(ba) orders are not confined to making orders to maintain the status quo.  This is made particularly clear by s 44(6a)(b) that enables the Commission to make an interim order to vary an award or industrial agreement.

59       The scope of matters that arise in a s 44 compulsory conference are not to be narrowly confined to the application and matters raised in submissions before the Commission but can encompass broader disputes and negotiations about matters that may sit behind an immediate dispute.  In The State School Teachers’ Union of WA (Inc) v Director-General, Department of Education and Training (2008) 88 WAIG 698 [40] (Ritter AP) (with whom Beech CC agreed [109]) found the scope of the matter in question in the s 44 conference encompassed the dispute beyond a dispute about directions given to members of the Union about industrial action and extended to the broader dispute and negotiations between the parties about a new industrial agreement and that specifically, s 26(2) of the Act allows the Commission to grant relief or redress without restriction as ‘to the specific claim made or to the subject matter of the claim’.

60       It is well established that all orders made under s 44(6)(ba) must be interim or interlocutory and not finally dispose of a matter in question: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1986) 66 WAIG 1553 (1561) (Brinsden P); Registrar v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1904 (1906); Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873 (1882 – 1883), Burswood [44].

61       The powers under s 44 are not unlimited and wide.  However, where conditions exist for their exercise, the powers under s 44 may be exercised without being read down: Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873 (1883).

62       Where there are a number of industrial matters raised in a dispute between the parties, an order made under s 44(6)(ba) that finally disposes of only one of those issues thus leaving the other issues open for further conciliation and arbitration, may depending upon the circumstances of the dispute, have the effect of a final order as it finally disposes of an issue in dispute.  In Burswood the ALHMWU made an application pursuant to s 44 of the Act in relation to a dispute about the terms of employment of Mr Neal who was unable to work as a croupier because of a workplace injury.  The ALHMWU sought the assistance of the Commission to resolve the issues of re-deployment and compensation for hours not paid for.  Following a conference convened under s 44, an order was made that Burswood re-deploy Mr Neal forthwith to the position of Electronic Gaming Assistant under the terms and conditions outlined in a letter from a Ms Drimatis.  The interim order also provided that Mr Neal was to remain employed in that position whilst the Commission heard and determined whether or not Mr Neal was owed wages for the hours he has been fit to work but had not been offered work and the terms and conditions that should apply to the work that Mr Neal is undertaking in his role as Electronic Gaming Assistant.  The Full Bench in that matter found the order was beyond power as it was a final order as the order determined the dispute between the parties about Mr Neal’s employment about which there was no agreement.  At [38] – [44] the Full Bench found:

The powers conferred by s.44 of the Act on the Commission, constituted by a single Commissioner, are now well settled.  S.44(6) empowers the Commission to, pursuant to s.44(6)(ba) and (bb) of the Act, give certain directions and make certain orders.  The Commission may do so only ‘at or in relation to a conference’.

Under s.44(6)(ba), the Commission can make certain orders only if it holds the opinion that such directions and/or orders will:-

prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter.

enable conciliation or arbitration to resolve the matter in question; or

encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would resist in the resolution of the matter in question.

Under s.44(6)(bb), the Commission may also, inter alia, again with respect to industrial matters, give any direction or make any order which the Commission is otherwise ordered to make under the Act.  Such an order under s.44(6)(ba) or (6)(bb) must be temporary and for the limited purposes.  The Commission cannot determine the matter in dispute before the Commission, and that can only be done by the Commission in the exercise of its arbitration power, not arising out of s.44(6).

This order was expressed as a final order which determined the dispute between the parties about Mr Neal’s employment future which was entirely in dispute still.  To do so was beyond power.

The exercise of the power in the absence of agreement was beyond the power conferred by s.44(8)(d) of the Act, because there was no order by agreement or consent.

In this matter, the conciliation conference which had taken place over a number of dates, had concluded within the meaning of s.44(9).  The question, dispute or disagreement in relation to the industrial matter before the Commission was not settled by agreement.  Therefore, the only power apart from powers under s.44(6) which the Commission could exercise was the power to hear and determine the question, dispute or disagreement which, partly, the Commissioner set out to do.  There is nothing in the order or recitals, express or implied, which would establish that the order was made because of the requisite opinion founded on s.44(6)(ba) or that the power was validly exercised pursuant to and within the prescription of s.44(6)(ba).

Indeed, on a fair reading, the order could not be said to facilitate arbitration because it purported, in an order made at the final conciliation conference, to resolve without arbitrating it, a question which was in issue and part of the industrial matter before the Commission and which required determination since there was no agreement.  Most cogently, the order was incompetent because it was an order purporting to finally determine the essence of the matter in dispute without agreement or without hearing or determining the matter and made out of a conciliation conference.

63       Importantly, the Full Bench found there was no power to make an order for re-deployment as the question of any employment in the future by Burswood of Mr Neal was entirely part of and the essence of the matter in dispute [45(c)].

Leave to Appeal

64       The appellant seeks leave to appeal from an interim order which is a ‘finding’ for the purposes of s 49(2) of the Act on the ground that the matter is of such importance that, in the public interest an appeal should lie.  In my opinion leave to appeal should be granted as a consideration of the principles of law that should apply to an exercise of discretion under s 44(6)(ba) of the Act raises an important and substantial question of law going to the jurisdiction of the Commission and is a matter of sufficient importance that an appeal should lie. 

Is Error Established

65       By applying the principles in Brown the learned commissioner, failed to apply the pre‑conditions for an exercise of power under s 44(6)(ba) of the Act.  After applying the principles set out in Brown the learned commissioner did not apply any of the pre-conditions set out in s 44(6)(ba) but simply said [40]:

[T]he making of an interim order is also consistent with s44(6)(ba)(ii) of the Act, in that it will enable conciliation or alternatively arbitration, to resolve the matter in question, in the event that Mr Dakoor challenges the findings of the disciplinary process instituted by the respondent under the PSM Act.

66       Section 44(6)(ba) is in imperative terms.  The pre-conditions require more than the Commission form an opinion that is consistent with s 44(6)(ba); it requires the Commission to give directions or to make such orders with respect to industrial matters that will in the opinion of the Commission enable conciliation or arbitration to resolve the matter in question.

67       The learned commissioner characterised the matter in question as whether Mr Dakoor had been subjected to an unfair, oppressive and unlawful disciplinary process.  The difficulties raised by characterising the matters in question in that way are two-fold.  Firstly, the SSTU sought no relief in relation to the disciplinary process.  To the contrary, the SSTU sought that the disciplinary process under pt 5 of the PSM Act continue.  Secondly, even if it was the case that the SSTU sought relief in respect of the disciplinary process, the unfairness of the disciplinary process was only one of the matters in question in the proceedings.  The other matters or issues were:

(a) whether the appellant had lawful authority to conduct disciplinary proceedings pursuant to pt 5, div 3 of the PSM Act, notwithstanding that Mr Dakoor was no longer an employee of the appellant;

(b) whether Mr Dakoor was accorded procedural fairness before the appellant made an order pursuant to s 240 and whether the s 240 order was lawfully made;

(c) whether the terms of the s 240 order constituted a variation of Mr Dakoor’s contract of employment from a contract for a fixed term to a contract of ongoing duration that was to expire when the allegations made against Mr Dakoor were dealt with in accordance with the discipline process under pt 5 of the PSM Act; and

(d) did the terms of the s 240 order together with the fact that the appellant through its agents and employees allowed Mr Dakoor to continue to work as an employee past the date of the expiry of Mr Dakoor’s contract of employment constitute the creation of new contract of employment of ongoing duration that was to expire when the allegations made against Mr Dakoor were dealt with in accordance with the discipline process under pt 5 of the PSM Act or alternatively should the appellant be estopped from departing from her representation to Mr Dakoor that he was to be employed until the conclusion of the disciplinary process under pt 5 of the PSM Act.

68       By making the order, the learned commissioner finally determined issues (a), (c) and (d) in that these were issues that could not be arbitrated by the Commission as issues (a), (c) and (d) were rendered hypothetical by the terms of the interim order in that those issues became moot.   This is because whilst he is employed by operation of law the disciplinary process must continue under pt 5, div 3 of the PSM Act.  However because Mr Dakoor’s ability to work as a teacher in Western Australia is extremely restricted whilst the s 240 order is in effect, it may have been open to make an interim order to reinstate Mr Dakoor if the disciplinary proceedings were also suspended until the hearing and determination of issues (a), (b), (c) and (d).  By suspending the disciplinary process under pt 5 of the PSM Act the disciplinary process could not be concluded until further conciliation or arbitration had concluded the issues in dispute.  It may also have been open not to order reinstatement but simply suspend the s 240 order until the hearing and determination of the issues in dispute if there was evidence that Mr Dakoor would have been able to find temporary employment as a teacher.

69       Providing that an interim order does not dispose of an issue in dispute or otherwise render an issue in dispute incapable of arbitration, when making an interim order under s 44(6)(ba) it is not always necessary or appropriate to set the issues in dispute down for hearing and determination.  An interim order contemplated by s 44(6)(ba)(i) or s 44(6)(ba)(ii) may be an appropriate means to prevent the deterioration of industrial matters until conciliation or arbitration has resolved the matter or matters, or to enable conciliation or arbitration to resolve the matter or matters, or be a means to encourage the parties to exchange or divulge attitudes or information which would in the opinion of the Commission assist the resolution of the matter or matters in question within the meaning of s 44(6)(ba)(iii).

70       The fact that orders (2) and (3) of the interim order enable the parties to apply to vary or revoke order (1) of the interim order does not bring the interim order made by the Commission in this matter within power as order (1) was not authorised by s 44(6)(ba) of the Act, in particular, none of the pre-conditions set out in that sub-section of the Act were made out.  In any event, it is clear from supplementary reasons given by the Commission on 18 October 2010: [2010] WAIRC 00997 that revocation, variation or setting aside the interim order was only to be contemplated in the event that the dispute between the parties is resolved without the necessity of Mr Dakoor to exercise any right of appeal pursuant to s 78 of the PSM Act.

71       As it is clear that the making of order (1) of the interim order was in the circumstances not within power I would uphold ground 2 of the appeal insofar as ground 2 identifies two of the matters in dispute.  I would dismiss ground 1 as it is my view that there was no discretion to make order (1).  I would also dismiss ground 3 as ground 3 relies upon an application of the principles in Brown.  I do not find it necessary to decide ground 4.  Accordingly it is my opinion that a minute of proposed order should issue in the following terms:

(a) The appellant have leave to appeal under s 49(2a) of the Act.

(b) The appeal is upheld.

(c) The order made by the Commission on 18 October 2010 in application C 32 of 2010 is quashed.

BEECH CC:

72      The facts of the matter have been set out in the reasons for decision of the Acting President and I do not need to repeat them here.  I too think that the appeal should be upheld although I have reached that conclusion by a different path to that taken by her Honour.

73      I have found it convenient first to deal with the issue of whether the decision the subject of the appeal is a finding.  If it is, an appeal does not lie to the Full Bench unless in the opinion of the Full Bench the matter is of such importance that in the public interest an appeal should lie: s 49(2a) of the Industrial Relations Act 1979 (“the Act”).  A finding is defined in s 7 of the Act as meaning a decision, determination or ruling made in the course of proceedings that does not finally decide, determine or dispose of the matter to which the proceedings relate.  A decision is defined to include an order.

74      The order the subject of the appeal is expressed to be an interim order (AB 70).  It also is not, in its terms, a final order because Order 2 states that the order continues in force until further order of the Commission.  For that reason, the Commission is not functus officio in relation to the subject matter of the order in that it retains the power under the Act to make a further order which can vary or cancel the order.

75      Also, order 3 is that the parties have liberty to apply.  The words “liberty to apply” are not necessarily sufficient on their own to establish that an order is not a final order but, with other clauses, it may be sufficient to allow that conclusion to be reached in that the order does not purport to finally dispose of the matter in dispute before the Commission (Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia – Western Australian Branch and Ors v. EPT Pty Ltd and Ors (1993) 73 WAIG 28).  The words enable the Commission to resolve any disputes on the way in which the order is to be implemented although if there is no change in the circumstances between when the order is made and where there is some variation sought pursuant to a liberty apply, a court is not able to alter or vary what had been agreed (Morseu v. Robe River Mining Co Pty Ltd and Anor [2006] WADC 27 per Fenbury DCJ at [15] citing Cristel v. Cristel [1951] 2 All ER 574). 

76      The Commission’s reasons for decision at [41] (AB 82) also express that the interim order “should not be open-ended” and expressly recognises that the order should only enable Mr Dakoor to be properly subject to the disciplinary processes under the Public Sector Management Act 1994 (“the PSM Act”) and given an opportunity to exercise his rights of appeal and reference in particular unless the matter is resolved in the meantime and the order is to be so limited.  The supplementary reasons for decision also recognise that the order to be made needed to contain a degree of flexibility and be only for the purposes expressed in the reasons for decision (AB 106 at [5]).  Thus, Order 2 was said by the Commission to enable some flexibility either varying, revoking or setting aside the order in the event that the parties resolved the current dispute without the necessity for Mr Dakoor to exercise any right of appeal pursuant to s 78 of the PSM Act.

77      In view therefore, the order the subject of the appeal is not a final order.  It is not said, as I understand it, that the order brought to an end the application that was before the Commission.  That application remains live in that it was not brought to an end by the issuance of the order.

78      What is said, as I understand it, is that Order 1 is in its own terms final and that it renders nugatory the other matter to which the proceedings relate.  In my view, and with respect, there is an inherent contradiction between the two arguments of the appellant which say firstly that the order under appeal is a finding and secondly that the order has finally disposed of the matters to which the proceedings relate.  Both of these propositions cannot be correct.  If the order does dispose of the matters before the Commission in that further proceedings on the matters before the Commission are rendered nugatory, then the order is not a finding but a final order.  If the order is indeed a finding, then for that reason alone it does not finally dispose of the matters to which the proceedings relate.

79      The matters to which the proceedings relate are to be determined by reference to the Notice of Application and any answer or counter proposal, and any amendments or variations to those documents.  Further, the characterisation of a dispute may change as it unfolds before the Commission in a conference.  Therefore, it is important to also have regard to what the Commission has identified in the reasons for decision as the issues before the Commission.

80      In this case, the Commission noted at [1] (AB 72-73) that the subject matter of the proceedings before the Commission is an allegation that Mr Dakoor has been subject to an unfair, oppressive and unlawful disciplinary process.  Pausing at that point, one of the issues which the Commission later sets out in some detail is whether or not the fact that Mr Dakoor was no longer an employee of the department by the time the matter came before the Commission meant that the allegation that Mr Dakoor has been subjected to an unfair, oppressive and unlawful disciplinary process would not be able to be pursued by him, or by the union on his behalf.  Seen in that context, the decision of the Commission to order that Mr Dakoor be employed for the purpose of allowing that allegation to be dealt with by the parties, and with recourse to the Commission if necessary, shows that the interim order did not finally decide, determine or dispose of the matter to which the proceedings relate.  Moreover, the interim order was limited in time to expressly allow that allegation to be dealt with.

81      It was submitted by the appellant in the course of the appeal that no particulars of the allegation of unlawfulness had been provided during the course of the proceedings.  In my view, and assuming that to be so, that does not change the character of the order which issued.

82      It also was submitted that the order requiring the employment of Mr Dakoor finally decided and disposed of the issue of whether or not Mr Dakoor should have been re-employed and in that sense that the order is a final order.  The correctness of this proposition must depend upon the correct characterisation of the matter to which the proceedings before the Commission related.  If the matter brought to the Commission, and with which the Commission was dealing, was whether or not Mr Dakoor should be reinstated in employment, then it may be arguable that the order which issued finally disposed of that matter given that the Commission has not directed that the parties have further discussions on that issue, nor programmed further conciliation on that issue nor referred that issue, for hearing and determination under s 44(9) of the Act. 

83      However, that is not what happened here.  The matters to which the proceedings relate can be seen in the reasons for decision (from AB 79 at [25] and following) to include:

(a) whether an order pursuant to s 240 of the School Education Act 1999 (“the SE Act”) can operate in respect of a person employed at the premises of a government school, who then ceases to be an employee.

(b) how the terms of Part 5 of the PSM Act can have application to a person who is no longer an employee of the respondent.

(c) whether Mr Dakoor has been denied procedural fairness in the issuance of the order under s 240 of the SE Act.

(d) that if it is ultimately held that Part 5 of the PSM Act has no application to him, Mr Dakoor would be unable to avail himself of any legal remedy to overturn such findings.

(e) that the respondent may purport to exercise powers under Part 5 of the PSM Act on the one hand and Mr Dakoor face the prospect of the respondent disavowing its application in circumstances where he may seek to vindicate any right of appeal.

84      After the matter had been before the Commission in a conference on 6 September 2010, the union sought an interim order (AB 10) that consistent with the terms contained in the department’s correspondence of 17 May 2010 the department be ordered to retain Mr Dakoor in employment until the allegations are dealt with in accordance with the disciplinary process (AB 23).  The interim order sought by the union deals with a matter that is a subset of the matter to which the proceedings initiated following the substantive Notice of Application (AB 4) and did not finally decide, determine or dispose of the balance of the matters before the Commission.

85      I have not found the decision referred to by the appellant in Burswood Resort (Management) Ltd v. ALHMWU [2003] WAIRC 09550; (2003) 83 WAIG 3314 to be of much direct assistance.  In that matter an order issued by the Commission under s 44 was quashed on the basis that the order was expressed as a final order which determined the dispute between the parties about the employee’s employment future which was entirely still in dispute.  This was held to be beyond power.  That can be contrasted to the circumstance in this matter where the order is not expressed to be final and the order is expressed to be for a finite term, that is, for the purposes of the disposition of the current disciplinary proceedings under Part 5 of the PSM Act and any appeal pursuant to s 78 of that Act.

86      For those reasons, I find that the order which issued is a finding.

87      It then becomes necessary to determine whether the matter is of such importance that in the public interest an appeal should lie.  As noted by the Full Bench in Burswood above, the power of the Commission to make orders under s 44 is limited.  In this case, the Commissioner in the reasons for decision at [3] (AB 73) notes that the application for an interim order is founded in s 44(6)(ba) of the Act.  Therefore, in order for the Commission to have the power to issue the order, the Commission would need to be satisfied that the orders were:

1. to prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration which resolved that matter;

2. to enable conciliation or arbitration to resolve the matter in question; or

3. to encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question.

88      As to the first and third of these three heads of power, it is not asserted by the union, nor found by the Commission, that the order is necessary to prevent the deterioration of industrial relations in respect of the matter.  The Commission’s reasons for decision do not show that the order will in the opinion of the Commission encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question.  I do not think the first and third heads of power support the order made.

89      In relation to the second, the order makes no provision for further conciliation and the matter in question has not been referred for hearing and determination; that is not fatal to the order because the application remains live, in that it was not brought to an end by the issuance of the order, and further conciliation or referring a matter for hearing and determination remains available.  However, I am satisfied that the order did render hypothetical the issues whether or not an order pursuant to s 240 of the SE Act can operate in respect of a person employed at the premises of a government school who then ceases to be an employee and how the terms of Part 5 of the PSM Act can have application to a person who is no longer an employee of the appellant.  To that extent therefore, the order cannot be said to enable conciliation or arbitration to resolve those matters. 

90      Although the order is not expressed to be made under s 44(6)(bb) of the Act, it is as well to note that the power given to the Commission to make an order which the Commission is otherwise authorised to give or make under this Act is of no assistance.  This is because the order was for the re-employment of Mr Dakoor and although the Commission is empowered to order the employment, or the re-employment, of an employee its power to do so is under s 23A which is confined to circumstances where there has been a dismissal which has been found by the Commission to be harsh, oppressive or unfair.  That is not the case here.  In any event, there is no express power under the Act to make an interim order of the nature of this order other than the powers found within s 44(6) of the Act. 

91      Accordingly, the order made was beyond power.  I add that it would have been within power for the Commission to have referred the matters for hearing and determination under s 44(9) and to have listed the hearing at short notice to deal with them.  That remains an option that is available.  The orders which can issue pursuant to s 44(9) are not constrained by the s 44(6) of the Act in the same manner as are interim orders.

92      I agree with her Honour that an important and substantial question of law going to the jurisdiction of the Commission is raised in this matter which is of such importance that in the public interest an appeal should lie and I would uphold the appeal for the reasons I have given.

93      I add for completeness that I have not found it necessary to deal with whether the Commissioner applied the correct test.  I nevertheless wish to indicate my support for the conclusion of her Honour that the correct test for issuing an interim order under s 44 is found in the pre-conditions for an exercise of power under s 44(6)(ba) of the Act and not in Brown v. President, SSTU and Ors (1989) 69 WAIG 1390.

SCOTT ASC

94       The reasons for decision of the Acting President set out the background to this appeal.

95       The application filed by the SSTU on 23 August 2010 sought an urgent conference under s 44 of the Industrial Relations Act 1979 (the Act). 

96       It sought:

Section 44 urgent conference – for an order voiding the respondent’s order against Mr Rudresh Dakoor, pursuant to s.240 of the School Education Act, 1999, pending the finalisation of the disciplinary proceedings against him, pursuant to Part 5 of the Public Sector Management Act, 1994.

97       The grounds on which the application was made were:

In issuing the order pursuant to s.240 of the School Education Act, 1999, the respondent acted unreasonably harshly and in an oppressive way; as well as ultra vires – thereby unlawfully – in that it failed to afford Mr Dakoor his right to natural justice and procedural fairness.

98       The first paragraph of the schedule to the application said that the SSTU sought the Commission’s intervention to conciliate a dispute relating to Mr Dakoor, ‘as a result of what the Union alleges to have been an unfair, oppressive and unlawful disciplinary process’.

99       The orders sought by the SSTU were:

a) The (respondent) is hereby ordered to honour the changed terms of Mr Dakoor’s contract of employment, as these were specified by the Director General in the correspondence to Mr Dakoor on the 17 May 2010, until the finalisation of the disciplinary proceedings against Mr Dakoor.

Or, in the alternative:

b) That the order issued by the Director General against Mr Dakoor, on the 17 May 2010 pursuant to s.240 of the School Education Act, 1999, is ultra vires and, consequently, null and void and of no effect. 

c) That the respondent is to advise the WACOT of that fact forthwith.

100    By an application of 6 September 2010, the SSTU then sought interim orders in the following terms:

The applicant seeks the following relief:

1. A declaration in the following terms:

‘That the electronic mail, dated the 12 August 2010 and sent by Mr Webb on behalf of the respondent, is hereby declared null and void and of no effect’. 

2. An order in the following terms:

‘That, consistent with the terms contained in the respondent’s correspondence on the 17 May 2010 to Mr Dakoor, the respondent is hereby ordered to retain Mr Dakoor in employment at the Swan District Education Office until ‘ … the allegations are dealt with in accordance with the discipline process …’.

3. Any other order that the Commission deems to be just and appropriate.

101    Therefore, the issues raised in the application were:

1. the fairness of the process leading to, and the lawfulness of, the imposition of the s240 order;

2. whether Mr Dakoor ought to be retained in employment until the disciplinary process could deal with allegations against him;

3. unfairness in the disciplinary process; and

4. whether the appellant had changed the terms of the contract of employment, and if it ought to be required to honour those changes until the conclusion of the disciplinary process.

102    In his reasons for decision the learned Commissioner at paragraph [5] cited the relevant principles as being those set out by Sharkey P in Brown.  Under the heading of Consideration, he then applied those principles.  In doing so, the Commissioner considered the substance of the claim and found that:

‘… (t)here are serious questions to be determined as to whether an order pursuant to s240 of the SE Act can operate in respect of a person employed at the premises of a government school, who then ceases to be an employee’ [25], and ‘how the terms of Part 5 of the PSM Act can have application to a person who is no longer an employee of the respondent’ [26].

103    He also noted that there were a number of allegations that Mr Dakoor had been denied procedural fairness in the issuance of the order under s 240 of the SE Act.  He then examined the facts of the case and said [34] - [36]:

On the material presently before the Commission, it is not apparent that despite this period of time, Mr Dakoor was given any opportunity to respond to the allegations against him.  Mr Dakoor filed an incident report on 12 May 2010 setting out his version of the relevant events.  Even taking into account the internal processes of the respondent, given the period of time involved, it is not readily apparent as to why Mr Dakoor could not have been given some opportunity to at least initially respond to the allegations put against him prior to the issuance of the s240 order.  This does not appear to be a case where the exercise of the s240 power was put into effect immediately or with such urgency so as to substantially reduce the content of the duty to hear from a person: LHMU at pars 34 and 35.

Of greater significance in this case, however, is the fact that the disciplinary process purportedly brought pursuant to Part 4 of the PSM Act could have major negative consequences for Mr Dakoor.  It is, in my opinion, not to the point to suggest that if ultimately it is held that Part 5 of the PSM Act can have no application to a former employee of the respondent, then that is the end of the matter.  The process undertaken by the respondent is a detailed and rigorous one, which may involve findings of fact against Mr Dakoor.  If it is ultimately held that Part 5 has no application to him, Mr Dakoor would be unable to avail himself of any legal remedy to overturn such findings.

In my opinion, it is unjust and unfair for the respondent to purport to exercise powers under Part 5 of the PSM Act on the one hand, and then for Mr Dakoor to face the prospect of the respondent disavowing its application in circumstances where he may seek to vindicate any right of appeal.  In my view, these matters are far more than merely hypothetical as they impact on Mr Dakoor.  He is a relatively new and inexperienced teacher.  Allegations such as the present, if upheld through the respondent’s disciplinary processes purportedly under Part 5 of the PSM Act, may have very serious consequences for Mr Dakoor’s teaching career.

104    The Commissioner then reached a conclusion that [38]:

In my opinion, it would be unfair and unjust for Mr Dakoor to potentially be deprived of the opportunity of availing his rights under the disciplinary process contained in Part 5 of the PSM Act, given the respondent has initiated the disciplinary process and has continued with it.  Having Mr Dakoor remain in employment, and thereby avoiding any doubt as to the capacity for him to vindicate his rights under the PSM Act and the process initiated by the respondent, would be consistent with equity and good conscience, which the Commission is required to apply by reason of s26(1)(a) of the Act.

105    The Commissioner then concluded that the balance of convenience lay with the applicant. 

106    In paragraph [40] he found that the making of the interim order was ‘also consistent with s.44(6)(ba)(ii) of the Act, in that it will enable conciliation or alternatively arbitration, to resolve the matter in question, in the event that Mr Dakoor challenges the findings of the disciplinary process instituted by the respondent under the PSM Act.’ 

107    The Orders issued on 18 October 2009 are said to be interim orders.  They provided:

(1) THAT Mr Dakoor be continued in employment by the respondent in the classification of teacher retrospective to 12 August 2010 undertaking such duties as may be directed by the respondent for the purposes of the disposition of the current disciplinary proceedings under Part 5 of the Public Sector Management Act 1994 and any appeal pursuant to s 78 of that Act.

(2) THAT this order continues in force until further order of the Commission. 

(3) THAT the parties have liberty to apply.

108    In Burswood Resort (Management) Ltd v ALHMWU 2003 WAIRC 09550 (2003) 83 WAIG 3314, the Full Bench said [38] - [40]:

The powers conferred by s.44 of the Act on the Commission, constituted by a single Commissioner, are now well settled.  S.44(6) empowers the Commission to, pursuant to s.44(6)(ba) and (bb) of the Act, give certain directions and make certain orders. The Commission may do so only ‘at or in relation to a conference.’

Under s.44(6)(ba), the Commission can make certain orders only if it holds the opinion that such directions and/or orders will:-

a) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter.

b) enable conciliation or arbitration to resolve the matter in question; or

c) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would resist in the resolution of the matter in question.

Under s.44(6)(bb), the Commission may also, inter alia, again with respect to industrial matters, give any direction or make any order which the Commission is otherwise ordered to make under the Act. Such an order under s.44(6)(ba) or (6)(bb) must be temporary and for the limited purposes. The Commission cannot determine the matter in dispute before the Commission, and that can only be done by the Commission in the exercise of its arbitration power, not arising out of s.44(6).

109    Industrial matters the subject of a conference convened pursuant to s 44 often involve a number of issues.  Some of those issues might be quite independent of one another.  Some may be questions which require resolution as a step in the resolution of other issues within the matter or matters the subject of the conference.

110    In this case, there were a number of issues which were impediments to others being resolved.  The issue of whether the appellant had failed to honour the changed terms of Mr Dakoor’s contract, and whether the fact of his no longer being employed was an impediment to the continuation of the disciplinary process, were separate issues but both required resolution.  They could be resolved pursuant to s 44 either by conciliation (that is, by agreement of the parties) or by referral for hearing and determination (that is, by arbitration).  If they were not resolved by conciliation, they could only be resolved by arbitration.

111    I am of the view that what the Commissioner did in this case was undertake arbitration of some issues, rather than enable conciliation or arbitration to resolve them.  The Commissioner’s first order had the effect of granting the first order sought in the application of 23 August 2010 and of overtaking or sweeping aside a number of them as issues for either conciliation or arbitration.  In fact, the Commissioner actually determined some of those issues in that he found [36] - [38]:

In my opinion, it is unjust and unfair for the respondent to purport to exercise powers under Part 5 of the PSM Act on the one hand, and then for Mr Dakoor to face the prospect of the respondent disavowing its application in circumstances where he may seek to vindicate any right of appeal.  In my view, these matters are far more than merely hypothetical as they impact on Mr Dakoor. He is a relatively new and inexperienced teacher. Allegations such as the present, if upheld through the respondent’s disciplinary processes purportedly under Part 5 of the PSM Act, may have very serious consequences for Mr Dakoor’s teaching career.

Whilst it is true, as the respondent submitted, that presently there is nothing preventing Mr Dakoor seeking a teaching post outside of the government sector, the reality is the process presently being undertaken, and the notification under the WACT Act, will hang over Mr Dakoor like a cloud, and the negative impact of that process on his employment outside of government schools cannot be discounted.

In my opinion, it would be unfair and unjust for Mr Dakoor to potentially be deprived of the opportunity of availing his rights under the disciplinary process contained in Part 5 of the PSM Act, given the respondent has initiated the disciplinary process and has continued with it.  Having Mr Dakoor remain in employment, and thereby avoiding any doubt as to the capacity for him to vindicate his rights under the PSM Act and the process initiated by the respondent, would be consistent with equity and good conscience, which the Commission is required to apply by reason of s 26(1)(a) of the Act.

112    He made those findings as part of considering the tests in Brown.

113    The Commissioner also concluded that [40]:

Furthermore, the making of an interim order is also consistent with s 44(6)(ba)(ii) of the Act, in that it will enable conciliation or alternatively arbitration, to resolve the matter in question, in the event that Mr Dakoor challenges the findings of the disciplinary process instituted by the respondent under the PSM Act.

114    The appropriate avenue for the possible challenge referred to would be via an appeal to the Public Service Appeal Board under s 78 of the Public Sector Management Act 1994 rather than under the auspices of the application then before the Commission.  Such appeal could be by Mr Dakoor or by the SSTU on his behalf.  There was no challenge at that point but merely the possibility of one depending on the outcome of the disciplinary process.

115    It would seem then that once the orders issued, the application then before the Commission had little if any work to do, except in respect of the challenge to the validity of the s 240 order and that would be likely to be resolved as a consequence of the disciplinary process without the need for further conciliation or arbitration.

116    The supplementary reasons of the learned Commissioner dated 18 October 2010, say at [5] that:

There is a degree of flexibility intended by the Commission in the order as proposed. Whilst the order is interim, and only for the purposes as expressed in the Commission’s reasons for decision, the proposed order 2 enables some flexibility in either varying, revoking or setting aside the order in the event that the parties resolve the current dispute without the necessity for Mr Dakoor to exercise any right of appeal pursuant to s 78 of the PSM Act.

117    This reinforces that the order may be varied, revoked or set aside if Mr Dakoor does not need to appeal under s 78 of the PSM Act, again confirming that a  significant aspect of the application has been resolved by the order.

118    Secondly, the order did not enable conciliation or arbitration to resolve the matters, but enabled the disciplinary process to continue and be finalised.  That will be resolved either by the outcome of the investigation being in Mr Dakoor’s favour, or by his appealing under s 78 of the PSM Act.  There is no suggestion that the respondent would bring these issues back to the Commission under the application then before the Commissioner.

119    Although the issue of the validity of the s 240 order is not resolved by the order, it is not suggested that it is to be the subject of any further conciliation or arbitration, although it may be.  As I have noted above, it may be resolved as a consequence of the disciplinary process.

120    The SSTU says that the quashing of the order would mean that Mr Dakoor is no longer an employee and could not challenge the other issues.  In fact those issues could have been the subject of arbitration.  Instead they were dealt with by the order, which could only be issued if the Commissioner was of the opinion that it would enable conciliation or arbitration to resolve the matter in dispute.

121    In any event, even if the order did not resolve the issue of the validity of the s 240 order, and that issue is still to be resolved, by conciliation or arbitration under this application, then the other issues the subject of the industrial matter have been rendered hypothetical and the dispute in respect of those issues resolved by the order.  To that extent, the order is a final order.

122    I agree with the Acting President that the tests set out in Brown are not directed to the considerations which a commissioner is required to have in deciding whether to issue orders in the context of a conference with respect to an industrial matter.  The test is not whether issuing the order is consistent with s 44(6)(ba) but whether in the opinion of the Commission they meet the requirements of s 44(6)(ba), in this case to enable conciliation or arbitration to resolve the matter. 

123    For those reasons, I agree that the appeal ought to be upheld and the order quashed.