Appeal against the decision given on 29 November 2013 in matter PSAB 12 of 2013

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2014 WAIRC 00263

DELIVERED : WEDNESDAY, 2 APRIL 2014

FILE NO. : FBA 20 OF 2013

Appellant

AND

Norman Baker, Managing Director, Pilbara Institute

Respondent

ON APPEAL FROM:

Jurisdiction : Public Service Appeal Board

Coram : Acting Senior Commissioner P E Scott – Chairman

Mr G Sutherland – Board Member

Ms G Husk – Board Member

Citation : [2013] WAIRC 01012; (2013) 93 WAIG 1865

File No. : PSAB 12 of 2013

CatchWords : Industrial Law (WA) - Appeal sought to be instituted against decision of Public Service Appeal Board - No jurisdiction of Full Bench to hear appeals from Public Service Appeal Board - Appeal dismissed.

Legislation : Industrial Relations Act 1979 (WA) s 49, s 49(1), s 49(2)

Result : Appeal dismissed

Representation:

Appellant : In person

Respondent : Mr D Anderson (of counsel) and Ms V Tomlin

Solicitors:

Respondent : State Solicitor for Western Australia

Case(s) referred to in reasons:

Hill v Commissioner, Corrective Services, Dept. of Corrective Services [2009] WAIRC 00166; (2009) 89 WAIG 417

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

Reasons for Decision

FULL BENCH:

1         By a notice of appeal filed on 9 December 2013, Henryk Turlinski seeks to appeal against a decision of the Public Service Appeal Board (the PSAB) made on 29 November 2013.

2         After the filing of the notice of appeal, the appeal was not progressed in the ordinary way by the filing of appeal books.  A question arose as to whether Mr Turlinski could appeal against the decision of the PSAB.  That is, whether the Full Bench has jurisdiction to hear such an appeal.

3         On 11 December 2013, the records of the Commission record that:

(a) Mr Turlinski attended the registry of the Commission and copies of decisions made by the Full Bench in State Government Insurance Commission v Johnson (1996) 76 WAIG 4142 and Hill v Commissioner, Corrective Services, Dept of Corrective Services [2009] WAIRC 00166; (2009) 89 WAIG 417 were provided to Mr Turlinski;

(b) an officer of the registry suggested to Mr Turlinski that he read the decisions and seek some independent advice so that he could make an informed decision about whether or not to proceed with the appeal.

4         On 17 December 2013, Mr Turlinski advised the Commission that he wished to proceed with the appeal.

5         On 5 March 2014, the appeal was listed for hearing for mention to show cause why the appeal should not be struck out on grounds of no jurisdiction.  The matter was listed for mention before the Full Bench for this purpose on 21 March 2014.

6         At the hearing on 21 March 2014, after hearing from Mr Turlinski, the Full Bench informed Mr Turlinski that an order would be made to dismiss his appeal.

7         The reason why the Full Bench formed this opinion is because the decisions in Johnson and Hill make it clear that no appeal lies to the Full Bench against a decision of the PSAB under s 49 of the Industrial Relations Act 1979 (WA) (the Act).  Pursuant to s 49(2) of the Act, an appeal only lies to the Full Bench in the manner prescribed from any decision of the Commission.  The Commission is defined in s 49(1) of the Act to mean the Commission constituted by a Commissioner.  The decisions in Johnson and Hill make it plain that a decision of the PSAB is not a decision of 'the Commission constituted by a Commissioner' within the meaning of s 49(1) of the Act.

8         For this reason, the appeal does not lie and an order will be made to dismiss the appeal.