Appeal against a decision of the Commission in Matter No. C 31 of 2015 given on 16 NOVEMBER 2015

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2016 WAIRC 00125

DELIVERED : FRIDAY, 4 MARCH 2016

FILE NO. : FBA 16 OF 2015

Appellant

AND

The Director General, Department of Education

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Commissioner S J Kenner

Citation : [2015] WAIRC 01015

File No. : C 31 of 2015

CatchWords : Industrial Law (WA) - Appeal against finding of a single Commissioner - Leave to appeal against order dismissing application for interim order to reinstate a teacher sought - Leave granted - Grounds of appeal raised a substantial matter of law affecting jurisdiction to make an interim order pursuant to s 44(6)(bb)(ii) of the Industrial Relations Act 1979 (WA) - Jurisdiction/preconditions to making an interim order considered - No rebuttable presumption conferred in favour of the making of an order - Exercise of power requires the formation of a requisite opinion - No error demonstrated in reasons given by the Commission at first instance

Legislation : Industrial Relations Act 1979 (WA) s 6(b), s 6(c), s 23A, s 26, s 26(1), s 26(1)(c), s 44, s 44(6), s 44(6)(ba), s 44(6)(bb), s 44(6)(bb)(ii), s 66, s 66(2)

School Education Act 1999 (WA) s 240

Public Sector Management Act 1994 (WA) s 80(b)

Labour Relations Reform Act 2002 (WA)

Income Tax Assessment Act 1936 (Cth)

Workplace Agreements Act 1993 (WA)

Interpretation Act 1984 (WA) s 19(1)

Result : Granted leave to appeal; Appeal dismissed

Representation:

Appellant : Mr M Amati

Respondent : Mr D J Matthews (of counsel)

Solicitors:

Respondent : State Solicitor's Office

Case(s) referred to in reasons:

Brown v President, State School Teachers Union of WA (Inc) (1989) 69 WAIG 1390

Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2003] WAIRC 09968; (2003) 83 WAIG 3556

Civil Service Association of Western Australia v Dr Ruth Shean, Chief Executive Officer, Disabilities Services Commission [2005] WAIRC 02043; (2005) 85 WAIG 2993

Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106

House v The King [1936] HCA 40; (1936) 55 CLR 499

JTA Le Roux Pty Ltd v Lawson [No 2] [2013] WASC 373

Julius v Lord Bishop of Oxford [1874-1880] All ER 43

Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2005] WAIRC 03358; (2005) 86 WAIG 247

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873

Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 990

Robertson v Civil Service Association of Western Australia Inc [2003] WASCA 284; (2003) 83 WAIG 3938

The Director General Department of Education and Training v The State School Teachers' Union of WA (Inc) [2009] WAIRC 00283; (2009) 89 WAIG 622

The Director General, Department of Education v The State School Teachers' Union of WA (Inc) [2011] WAIRC 00058; (2011) 91 WAIG 166

Case(s) also cited:

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Eskimo Amber Pty Ltd v Pyrenees Shire Council [1998] HCA 3 23 January 1998 (M57/1996 Pyrenees Shire Council v Day) Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ

Katina Pty Ltd v The Western Australian Builders, Labourers, Painters and Plasterers Union of Workers (1997) 77 WAIG 2863

The State School Teachers Union of WA (Inc) v Mr Paul Albert Director General Department of Education [2005] WAIRC 02420

Ward v Williams [1955] HCA 4; (1995) 92 CLR 496 (2 March 1955)

Reasons for Decision

SMITH AP:

Introduction

1         The State School Teachers' Union of W.A. (Incorporated) (the union) seeks to institute an appeal against a decision by the Commission in C 31 of 2015 given on 16 November 2015, to dismiss an application for an interim order under s 44(6)(bb)(ii) of the Industrial Relations Act 1979 (WA) (the Act).

2         On 16 September 2015, the union applied to the Commission for an urgent conference under s 44 of the Act to conciliate an industrial matter which arises out of an alleged unfair dismissal of a member of the union, Mr Giuseppe Bellantone.  Mr Bellantone is a teacher.  His employment was terminated on 15 September 2015 by the Director General, Department of Education.

3         At the conference, the union sought an interim order be made under s 44(6)(bb)(ii) of the Act to reinstate Mr Bellantone's salary payments, without break in service, up to and pending the hearing and determination of the union's substantive claim that the dismissal of Mr Bellantone on 15 September 2015 is unfair, oppressive and wrongful.

4         As a result of allegations made against Mr Bellantone on 25 July 2014, he was ordered by the employer to leave school premises pursuant to s 240 of the School Education Act 1999 (WA) and was suspended from teaching with full pay.  Mr Bellantone continued to be suspended on full pay until his employment was terminated.  This resulted in a 14‑month period of suspension on full pay.

5         By letter dated 11 September 2014, Mr Bellantone was notified of five allegations of suspected breaches of discipline.  Prior to the investigation into those allegations being concluded, by letter dated 17 November 2014, Mr Bellantone was advised of a further allegation of breach of discipline.  The allegation was that on 9 October 2014, contrary to s 80(b) of the Public Sector Management Act 1994 (WA), he acted contrary to the Department of Education's Code of Conduct.  The allegation concerned falsification of email correspondence sent by him to the Standards and Integrity Directorate of the Department of Education.  The particulars of the allegation were that Mr Bellantone altered an email dated 21 August 2013, which he claimed to be an email he had sent to the principal of the Clarkson Primary School.  It is asserted by the employer that the email from Mr Bellantone created the impression that the principal had deliberately omitted information from material provided by her to the Directorate.

6         On 25 June 2015, by two separate letters of that date, Mr Bellantone was advised that following an investigation it was open to form the view that he had committed breaches of discipline:

(a) The first letter related to the five allegations that were notified to Mr Bellantone on 25 July 2014.  In that letter the Director General advised Mr Bellantone that it was open to her to form the view that he had committed breaches of discipline in respect of three matters only and if she ultimately made a finding that he had committed the three breaches of discipline she would be inclined to impose the penalties of transfer, reprimand and improvement action in respect of each breach of discipline.

(b) The second letter related to the alleged breach of discipline raised in the letter dated 17 November 2014.  In this letter the Director General advised Mr Bellantone that it was open for her to form the view that he had committed the breach of discipline and that if she ultimately made a finding that he had committed the alleged breach of discipline she would be inclined to terminate his employment with the Department.

7         On 31 July 2015, the union sent a response to the Director General's letter which dealt with the allegation raised in the second letter.  In the letter, a concession was made, on behalf of Mr Bellantone, that he had made a grave error of judgement in sending the redacted copy of the email.  The union stated that for this error in judgement Mr Bellantone gave an unreserved apology to all concerned.  The union also set out a number of matters in mitigation of Mr Bellantone's action.  One of the matters raised in Mr Bellantone's defence was a medical issue which may have affected his judgement at the time the email was sent.

8         After considering the union's response, the employer found the allegation relating to the redacted email to be proven and imposed a sanction of termination of employment which took effect on 15 September 2015.

9         At the time of the hearing of the application for an interim order the Department had not taken any further steps in relation to the three other allegations of breach of discipline.

The learned Commissioner's reasons for decision for refusing the application for interim orders

10      The learned Commissioner had regard to the following submissions put by the parties in his reasons for decision:

(a) The union contends that the circumstance of Mr Bellantone being on 14 months' paid suspension, without the provision of work, a longstanding action, is relevant and it would be unfair to discontinue Mr Bellantone's salary payments, in light of that history.  Furthermore, the union raised Mr Bellantone's fitness for work.  Another matter, although not developed in argument, was that a number of subsidiary allegations raised in the Department's letter of 25 June 2015 involved some 'targeting' of Mr Bellantone unfairly.

(b) The Department contended that there was no basis for interim relief in the present circumstances.  It said no particular factors, beyond those which would arise in the ordinary course of a claim of unfair dismissal, were present.  The Department also submitted that there were no identifiable disadvantages or factors specific to Mr Bellantone that would give rise to circumstances in which the Commission would exercise the discretion to make interim orders in his favour.  Furthermore, the Department contended that the balance of convenience, in terms of the recovery of any monies paid to Mr Bellantone weighed against the grant of interim orders in this case.

11      The learned Commissioner then found:

(a) The Commission's powers under s 44(6)(bb)(ii) of the Act to grant interim relief in terms that the Commission thinks appropriate, pending the resolution of the substantive claim, is plainly a discretionary power.

(b) There must be some particular circumstance(s) in existence which would give rise to the exercise by the Commission of the power to grant interim relief.  What those particular factors are will very much depend on the facts and circumstances of the case before the Commission.  Each case will vary:  The Director General Department of Education and Training v The State School Teachers' Union of WA (Inc) [2009] WAIRC 00283; (2009) 89 WAIG 622 (Motteram).

(c) In this case, the allegation of deliberate falsification of a document provided to the Standards and Integrity Directorate in the course of a disciplinary investigation was a serious one.

(d) The conduct of Mr Bellantone had the effect of, by inference, falsely implicating the then principal of Mr Bellantone's school, in an act of misconduct also.  Mr Bellantone did not dispute the fact of the allegation, but sought to explain it and apologise.

(e) Whilst the union placed considerable weight on the financial impact on Mr Bellantone of the Department's decision to terminate his employment on 15 September 2015, that is a consequence which flows from most dismissals.  In and of itself, it is not sufficient reason to warrant the grant of interim relief.  As the Department correctly pointed out, if this factor was to be weighed heavily in favour of the making of an interim order in claims such as the present matter, then very many, if not most such claims, could attract interim orders.  This cannot be considered to be the intention of Parliament.

(f) In the event that a final determination of the Commission of the union's substantive claim is in Mr Bellantone's favour, then orders for compensation for loss, including lost salary and wages, can be made.

(g) The fact that Mr Bellantone has had a lengthy period of suspension on pay does not alter this matter in his favour.  If anything, Mr Bellantone has had a considerable period of time to pursue other employment options, which according to the union he has done over this period.

12      The learned Commissioner finally concluded that in his opinion there had been nothing further raised by the union to cause the exercise of discretion under s 44(6)(bb)(ii) to grant interim orders.

The grounds of appeal

13      There are three grounds of appeal.  These are:

1. The learned Commissioner erred in law and/or fact in dismissing an application for interim relief - C 31 of 2015 - with a Decision/Order on the 16 November 2015 [2015 WAIRC 01015] on the grounds of a finding purporting that '... there are no identifiable disadvantages or facts specific to Mr Bellantone that would give rise to circumstances in which the Commission would exercise the discretion to make interim orders in his favour ...'.

Particulars

The exercise of the Commission's statutory discretion miscarried in that the learned Commissioner failed to or misdirected himself in:

a. Failing to find that a refusal to grant interim relief - as to the reinstatement of salary of Mr Bellantone pending the final hearing and determination of the application by the Commission - would be unreasonable or plainly unjust so as to constitute a substantial wrong occurring against Mr Bellantone;

b. Failing to find that, on a proper construction of the provisions of the Industrial Relations Act 1979 (the 'Act') as a whole, in all of the circumstances, that the granting of the sought relief was consistent with the Objects and policy of the Act and, consequently, just and fair.

c. Failing to apply correctly the proper general law principles applicable to the powers of the Commission to grant interim relief, pursuant to section 44(6)(bb)(ii) of the Act, in consideration of the specific wording and construction used by the Legislature in drafting and defining such powers;

d. Not considering relevant matters and, alternatively, considering irrelevant matters.

2. The learned Commissioner erred in law and/or fact in dismissing an application for interim relief - C 31 of 2015 - with a Decision/Order on the 16 November 2015 [2015 WAIRC 01015] on the grounds of mistaken facts.

Particulars

a. On the limited facts before him, it was not open to the learned Commissioner to find that purportedly:

i. '… Mr Bellantone has had a considerable period of time to pursue other employment options ...' given the contents of paragraph 6(a)(b)(c) and (d) of the application before him:

ii. Whilst Mr Bellantone could pursue other employment options - which he did - due to him being suspended pursuant to section 240 of the School Education Act 1999 (the 'SE Act'); Mr Bellantone was prevented from accepting an alternative teaching position including in a non-public school;

iii. At paragraph 9, in regards to the financial negative impact upon Mr Bellantone as a consequence of the dismissal by the respondent, '... In and of itself … [financial hardship] ... is not in my opinion sufficient reason to warrant the grant of interim relief …' and further that professedly if financial hardship '... was to be weighed heavily in favour of the making of an interim order in claims such as the present matter, then very many, if not most such claims, could attract interim orders. I do not consider that was the intention of Parliament …'.

iv. The fourteen-month suspension with pay was:

- not relevant to the issuing of the sought relief;

- that the suspension with pay was somewhat 'not' detrimental; to Mr Bellantone's interests; and

- That the balance of convenience lied with the respondent.

3. The learned Commissioner erred in law and/or fact in that, in dismissing the application for interim relief, exercised his statutory discretion in a manner inconsistent with the mandatory provisions encumbering such an exercise found in section 26 of the Act.

Public interest

14      If a decision sought to be impugned on appeal is a finding, an appeal does not lie unless, in the opinion of the Full Bench, the matter is of such importance in the public interest.  The union seeks to institute an appeal against the decision to dismiss an application for an interlocutory order.  Thus, the decision is a 'finding' as it does not finally decide, determine or dispose of the matters in dispute between the parties.

15      The principles that apply when considering the importance of an appeal in the public interest were settled in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873; approved and applied in Civil Service Association of Western Australia v Dr Ruth Shean, Chief Executive Officer, Disabilities Services Commission [2005] WAIRC 02043; (2005) 85 WAIG 2993 [27] - [30] and Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2005] WAIRC 03358; (2005) 86 WAIG 247 [13] - [14] (Ritter AP).  These principles are:

(a) the words 'public interest' are not to be narrowed to mean 'special or extraordinary circumstances';

(b) an application may involve circumstances which are neither special nor extraordinary.  It may involve circumstances which, because of their very generality, are of great importance in the public interest;

(c) each matter will be a question of impression and judgment whether the appeal has the required degree of importance; and

(d) important questions that may have effect in other industries, and substantial matters of law affecting jurisdiction, can give rise to matters of sufficient importance in the public interest to justify an appeal.

Matters that are said by the union to raise importance in the public interest

16      The union argues that in this matter the following are matters of such importance that, in the public interest, an appeal should lie:

(a) the learned Bench is asked to clarify the application and operation of s 44(6)(bb)(ii) of the Act; and

(b) the application and operation of s 44(6)(bb)(ii) is likely to have repercussions in other industries in Western Australia; and

(c) that in industrial relations it is desirable to have well settled and predictable principles that are clear to all interested parties.

17      The union points out that the principles to be applied to an exercise of discretion to make an interim order pursuant to the power conferred by s 44(6)(bb)(ii) of the Act have not been considered in any appeal in which the issue has been in contest.  Motteram is the only Full Bench decision in which an interim order made pursuant to s 44(6)(bb)(ii) of the Act was challenged.  However, in that matter the principles that should guide a Commissioner when considering whether to issue an interim order were not in dispute.  In Motteram, the Commissioner at first instance had applied a test enunciated by Sharkey P in Brown v President, State School Teachers Union of WA (Inc) (1989) 69 WAIG 1390 when making an interim order under s 66 of the Act, in relation to the observance, non-observance or the manner of observance of rules of an organisation.  In Brown, Sharkey P construed the power as discretionary to make an interim order in s 66(2) of the Act by applying the principles which apply to the granting of an interim injunction.  At (1393) his Honour said:

The applicant must therefore establish:—

(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.

18      In Motteram, Ritter AP observed that [33]:

After satisfying herself that the Commission had the jurisdiction to make the order sought, the Commissioner said she was to apply the tests set out in Brown. Neither party contended that this was an incorrect approach and therefore whether it was so does not fall for consideration in the present appeal.

19      In this appeal, the Department contends that the principles set out by Sharkey P in Brown is the relevant test to apply in deciding whether to make an interim order under s 44(6)(bb)(ii).  The union contends that the principles in Brown should not be applied as the purpose and scope of the power conferred by s 44(6)(bb)(ii), when considered with the objects of the Act, raise different considerations to the matters that are applicable when determining whether an interim injunction should be granted.

Leave to appeal

20      In my opinion, leave to appeal should be granted.  This is because the grounds of appeal raise a matter of sufficient importance that an appeal should lie, as the grounds raise a substantial matter of law affecting the jurisdiction of the Commission to make an interim order pursuant to s 44(6)(bb)(ii) of the Act.

Union's submissions - construction of s 44(6)(bb)(ii) of the Act

21      The central tenet of the union's argument is that s 44(6)(bb)(ii) confers a power on the Commission to make an interim order, and where the preconditions for the making of an application for an interim order are met, the Commission is obliged to make an interim order as sought by the union.  Thus, it is argued that the discretion conferred in s 44(6)(bb)(ii) should be construed as a discretion to act that is rendered obligatory once the preconditions are met.

22      In support of its argument, the union relies upon the observations of the House of Lords in Julius v Lord Bishop of Oxford [1874-1880] All ER 43; as applied by Anderson J in Robertson v Civil Service Association of Western Australia Inc [2003] WASCA 284; (2003) 83 WAIG 3938 [11].  In Julius a statute enacted that with regard to certain charges against any clerk in holy orders 'it shall be lawful' for the bishop of the diocese, 'on the application of any party complaining', to issue a commission for inquiry.  It was held by the House of Lords that the words merely conferred a power to act and not a duty to act, when called upon to do so.  Earl Cairns LC said (47):

They are words merely making that legal and possible which there would otherwise be no right or authority to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so.

23      Lord Penzance said (51):

The words 'it shall be lawful' are distinctly words of permission only - they are enabling and empowering words. They confer a legislative right and power on the individual named to do a particular thing; and the true question is, not whether they mean something different, but whether, regard being had to the person so enabled, to the subject-matter, to the general objects of the statute, and to the person, or class of persons, for whose benefit the power may be intended to have been conferred, they do or do not create a duty in the person on whom it is conferred to exercise it.

24      The union contends that when regard is had to the scheme of the Act which is provided for in the long title of the Act and to the principal objects of the Act in s 6(b) and s 6(c) of the Act, the legislative intention which can be derived from these provisions, when read with s 44(6)(bb)(ii), is that the means provided to assist the Commission in achieving the objects to prevent and resolve disputes are those powers principally set out in s 44 of the Act.  Further, that when regard is had to these provisions the Full Bench should find that the enactment of s 44(6)(bb)(ii), by Act No 20 of 2002, the Labour Relations Reform Act 2002 (WA), widened the powers in s 44 of the Act to provide for a beneficial provision to employees by which an organisation could make an application under s 44(6)(bb)(ii) on behalf of the employee affected, and in these circumstances the organisation is entitled to call upon the Commission to exercise the power.

25      The union says the only preconditions to trigger the exercise of the power to make an interim order is that there must be an industrial matter brought by an organisation under s 44 of the Act that is a claim of harsh, oppressive or unfair dismissal of an employee.  It also says that in exercising the power under s 44(6)(bb)(ii), the Commission is required to have regard to the matters in s 26(1) of the Act.

26      The union does, however, concede that once an application is made then the Commission must consider whether the circumstances warrant the making of an order.  It argues that there is no onus on the union to persuade the Commission that an order should be made.  It says, however, that s 44(6)(bb)(ii) creates a rebuttable presumption that an interim order should be made in favour of an employee.  Thus, they say an interim order should be made unless a finding is made in the circumstances that it is inappropriate to grant the relief claimed, and if so, the application for interim relief should be dismissed.

27      The union submits that the learned Commissioner in this matter made an error of law by misinterpreting the nature of the discretion conferred in s 44(6)(bb)(ii) of the Act in that he interpreted the discretion conferred as absolute.  The union also says that the learned Commissioner erred in his finding in [7] of his reasons for decision (AB 26) that there must be some particular circumstance or circumstances in existence which would give rise to the exercise by the Commission of the power to grant interim relief.  Also it says that in dismissing the application for interim relief the learned Commissioner wrongly sought additional 'external reasons'.  In doing so, it says, the effect of the learned Commissioner's approach was to read down the provisions of s 44(6)(bb)(ii) contrary to the reasoning applied by the Full Bench in The Director General, Department of Education v The State School Teachers' Union of WA (Inc) [2011] WAIRC 00058; (2011) 91 WAIG 166 (Dakoor) and the Industrial Appeal Court in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873, 1883.

The test to be applied by the Commission when exercising the discretion conferred in s 44(6)(bb)(ii) of the Act

28      In ground 3 of the appeal, the union alleges the Commission exercised its discretion in a manner inconsistent with the mandatory provisions encumbering such an exercise found in s 26 of the Act.  In ground 1(c) it is contended that the Commission failed to apply correctly the proper common law principles applicable to s 44(6)(bb)(ii), in consideration of the specific wording and construction of the Act.  At the heart of these grounds is the submission that s 44(6)(bb)(ii) creates a rebuttable presumption that a person who is the subject of an unfair dismissal claim shall be entitled to an interim order made in their favour unless the ex-employer proves that it is 'inappropriate' to make such an order.

29      Section 44(6)(ba) and s 44(6)(bb) of the Act provides:

(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may —

…

(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission —

(i) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter; or

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

(iii) 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;

and

(bb) with respect to industrial matters —

(i) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act; and

(ii) without limiting paragraph (ba) or subparagraph (i), in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;

30      The power conferred by s 44(6)(bb)(ii) can only be exercised in respect of a claim of harsh, oppressive or unfair dismissal of an employee.  In such case, the discretion conferred is to make any interim order the Commission thinks appropriate in the circumstances.  The power conferred by s 44(6)(bb)(ii) has two preconditions for its exercise:

(a) any order must only be in respect of a claim of harsh, oppressive and unfair dismissal; and

(b) any order must be appropriate in the circumstances pending resolution of the substantive claim.

31      The union argues that the principles applied by the Full Bench in Dakoor to guide the making of an interim order under s 44(6)(ba) of the Act should be applied to the making of an interim order under s 44(6)(bb)(ii) of the Act.  However, it is notable that the power conferred by s 44(6)(bb)(ii) is distinctly different to the power to make an interim order by s 44(6)(ba) as the preconditions for the exercise of the power to make an interim order pursuant to the power conferred in s 44(6)(ba) of the Act are different.  Under s 44(6)(ba), the Commission can only make an interim order or give directions if it holds the opinion that such an order 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; or

(c) 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.

32      An application for an order under s 44(6)(ba) can be made by either an organisation or by an employer or on behalf of an employer by an employer organisation.  When determining an application for an order under s 44(6)(ba) in a compulsory conference convened pursuant to s 44, the Commission must form the requisite opinion founded in any of the subparagraphs of s 44(6)(ba):  Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2003] WAIRC 09968; (2003) 83 WAIG 3556 [49]; Dakoor [66].

33      The union submits in this matter that once the preconditions in s 44(6)(bb)(ii) are met the power to make an order should be exercised.

34      The construction of the word 'may' as a mandatory direction was considered in Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106.  In that matter, the Income Tax Assessment Act 1936 (Cth) provided that the Commissioner 'may allow' a private company a rebate of taxation if satisfied that the shareholder would not pay a dividend to another private company during a specified period.  The High Court held that once satisfied in terms of the provision the Commissioner of Taxation was obliged to allow the rebate.  Justice Windeyer at (134) said:

The Act is filled with provisions about allowable deductions which are mandatory. The contrast in language in s. 79B (lA) between what is allowable and what a taxpayer is 'entitled to' is significant. The question, which comes back to the words 'may allow', is not to be solved by concentrating on the word 'may' apart from its context. Still less is the question answered by saying that 'may' here means 'shall'. While Parliament uses the English language the word 'may' in a statute means may. Used of a person having an official position, it is a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized. But the discretion must be exercised bona fide, having regard to the policy and purpose of the statute conferring the authority and the duties of the officer to whom it was given: it may not be exercised for the promotion of some end foreign to that policy and purpose or those duties. However, that general proposition is irrelevant in this case. Here the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then is, must the permitted power be exercised if one of those conditions be fulfilled?

This does not depend on the abstract meaning of the word 'may' but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised – so that in those events the 'may' becomes a 'must'.

35      Thus, the apparent discretion to act conferred on the Commissioner of Taxation could be construed as obligatory and the word 'may' was to be read as 'must'.  However, the terms of s 44(6)(bb)(ii) of the Act are different.  The power created by this provision requires the formation of a requisite opinion.  This provision does not prescribe the circumstances which are to be met before an interim order is to issue.  Nor does the context of the provision raise a defined set of circumstances.

36      The union says a rebuttable presumption is created whereby it is assumed that an interim order should be made unless the Commission forms the opinion that it is not appropriate to do so.  In making this submission, the union relies upon matters stated in the explanatory memorandum relating to the bill that when enacted became the Labour Relations Reform Act 2002.  The statements relied upon by the union are as follows:

1. The Labour Relations Reform Bill 2002 sets the scene for a new era in labour relations in this State. The Bill establishes a just and balanced system and provides a fair go for all parties involved in the workplace of Western Australia.

2. The objects of the Labour Relations Form Bill 2002 are:

…

f) to reinstate the Commission as an effective independent umpire in industrial relations by amending the IR Act to clarify and increase the powers of the Commission.

g) to reform the unfair dismissal provisions.

37      The statements in the introduction to the explanatory memorandum related to an entire package of amendments, including the removal of the power of the Minister to make minimum wage determinations and return the power to the Commission to make minimum weekly rates of pay, the phasing out of the repeal of the Workplace Agreements Act 1993 (WA), providing for employees covered by workplace agreements to refer claims for unfair dismissal to the Commission, expanding the scope of remuneration orders the Commission can make when determining an unfair dismissal claim and providing for the right to apply for an extension of time to employees to refer a claim of unfair dismissal.

38      The only reference to the enactment of s 44(6)(bb)(ii) of the Act in the explanatory memorandum is at paragraph 145 which states that:

Interim orders will be available to the Commission but will be limited to those unfair dismissal cases heard through the provisions of Section 44.

39      These statements in the explanatory memorandum are of no assistance.  To be so, pursuant to s 19(1) of the Interpretation Act 1984 (WA) the material must assist in confirming the meaning conveyed by the text of s 44(6)(bb)(ii) of the Act, taking into account its context in the Act and the purpose or object underlying the Act.

40      The difficulty with the union's submission is that it misconstrues the second precondition in s 44(6)(bb)(ii), set out in [30] of these reasons, which requires an assessment of whether the circumstances require an interim order that in the opinion of the Commission is appropriate.  This assessment does not raise a list of specific matters that have to be met before an order should issue.

41      Section 44(6)(bb)(ii) requires the Commission to consider 'the circumstances' of the claim and the power to make an interim order. It is a power to make an order that is appropriate in the opinion of the Commission in the circumstances pending resolution of the claim.

42      As Ritter AP in Motteram [36] observed:

(a) whether an order should be made must depend upon the particular facts and circumstances that are before the Commission; and

(b) those facts and circumstances will inevitably vary from case to case.

43      The decision of the Industrial Appeal Court in Robertson does not assist the union's argument.  In Robertson, an application was made by the president of the Civil Service Association of Western Australia Inc (CSA) for an order pursuant to s 66(2) of the Act.  Section 66(2) of the Act relevantly provides:

On an application made pursuant to this section, the President may make such order or give such directions relating to the rules of the organisation, their observance or non‑observance or the manner of their observance, either generally or in the particular case, as he considers to be appropriate …

44      The order sought in Robertson was not to operate as an interim order pending resolution of an application for final orders.  President Sharkey, after hearing the application, upheld the applicant's contentions that the CSA had not observed its rules.  He, however, declined to make an order.  His Honour was of the view that the Act did not require him to grant relief, even where an applicant had made out a case of non-observance or erroneous observance of the rules of an organisation because of the broad or absolute discretion which s 66(2) conferred.  This construction of s 66 of the Act was rejected by the Industrial Appeal Court.  Justice EM Heenan, with whom Hasluck J agreed, firstly observed [36]:

No doubt this was because the Commission, when granting relief or redress under the Act, is not restricted to the specific claim made – s 26(2) – but must act according to the substantial merits and without regard to legal forms – s 26(1)(a). Rather, as shall emerge, the issue which eventually became significant was whether or not, if a case had been made out showing a non-observance or erroneous observance of the rules of a registered organisation, the provisions of subs 66(2) which provided that 'the President may make such order or give such directions ... as he considers to be appropriate ...' meant that there was a discretion to decline to make any order, to give any direction or to grant any relief.

45      His Honour then went on to consider the line of authority in which the principle that where a power is conditional upon the exercise of an event or the formation of a particular opinion by the repository of the power, where these facts or opinion are found the power to exercise the power can be construed as obligatory ([47] - [50]).  At [51] EM Heenan J found:

Accordingly, there may be found in the leading texts many observations along the lines contained in 'Judicial Review of Administrative Action' by Professor M Aronson and Mr B Dyer (1996) LBC Information Services at 781 – 782—

'Whilst "may" indicates a discretion, the repository of that discretionary power is usually under a duty to consider its exercise, when an appropriate request is made, and is sometimes under a duty to exercise it in a particular way if there is no permissible reason indicating why it should not. In the latter situation, the discretion has effectively run out. That is not to convert a "may" into a "must" (see Re Baker; Nichols v Baker (1890) 44 Ch D 262 at 270). It is simply to recognise that in public law, no repository of a discretionary power can exercise or decline to exercise it on arbitrary or otherwise impermissible grounds. Therefore, where the only grounds for refusing to exercise a discretion in a certain way are legally impermissible, a mandamus will lie to compel its exercise in the correct manner.'

46      His Honour then found ([52] - [53]):

There can be no doubt that the application of these principles means that, in the present case, the learned President was under a legal duty to exercise the jurisdiction of the Commission and to hear the appellant’s application made under s 66 of the Act. In my view this obligation requires the President to hear the appellant’s application and to determine it in accordance with law. In turn, this requires the learned President to consider what, if any, of the discretionary powers of relief which are available to him in the exercise of the jurisdiction so conferred, should be granted and to exercise that discretion with regard to factors material to the grant or withholding of the relief on established legal principles and in accordance with the statutory provisions directly applicable.

There are some indications in the Industrial Relations Act that the jurisdiction conferred upon the Commission or the President shall be exercised, although discretionary, by reference to objective criteria. For example, subs 14(1) confirms the jurisdiction expressly conferred on the President by the Act and states that the President 'may exercise such powers of the Commission as may be necessary or appropriate thereto', thus conditioning the exercise of the power upon the objective necessity or appropriateness of the remedy in the particular case. The existence of facts or circumstances which may lead the Commission to dismiss a matter or refrain from hearing it are expressly identified in subs 27(1)(a), so the Commission may dismiss a matter or decline to hear it further if satisfied: that it is trivial; that further proceedings are not necessary or desirable in the public interest; that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or that for any other reason the matter or part of the matter should be dismissed or the hearing discontinued. This provision appears to provide some scope for a contention that it is only in those nominated circumstances that the Commission may decline to hear a matter or may dismiss it but, in view of the breadth of power which subs 27(1)(a)(iv) confers on the Commission there can be no benefit derived from pursuing an examination of that possibility, as it is clear that the statute gives a broad power for the Commission to decide 'for any other reason, that a matter should be dismissed or the hearing discontinued'. Nevertheless, the position remains that a refusal to exercise any of the discretionary powers conferred, and to refuse relief to an applicant who has established grounds which would allow a remedy to be granted under s 66, will require the existence or establishment of some relevant consideration or criterion in order to support the exercise of the discretion to decline a remedy.

47      Finally, his Honour found that the reasons given by the President to refuse relief were not reasons that could support a refusal to exercise the discretion where facts had been proved which would allow the Commission to grant any appropriate remedy necessary.

48      Thus, the preconditions for the exercise of power under s 66 of the Act are different to the preconditions in s 44(6)(bb)(ii) of the Act.

49      I do not agree the test in Brown should be applied.  The test in Brown is a test that has been applied to applications for an interim order pursuant to s 66(2) of the Act.  Whilst any interim order made pursuant to s 44(6)(bb)(ii) of the Act is an interlocutory order, I do not agree the principles to be applied should be the principles that apply to the granting of an interlocutory injunction.  In an application for an interlocutory injunction an assessment of whether there is a serious question to be tried requires the court or tribunal hearing the application to determine whether the claim made by the applicant raises a prima facie case of sufficient strength to justify the granting of a prohibitory or mandatory injunction:  see the discussion by Edelman J in JTA Le Roux Pty Ltd v Lawson [No 2] [2013] WASC 373 [15] - [23].  Also, the effect of an injunction whether prohibitory or mandatory is that the effect of an interim injunction is in essence the same as a final determination.

50      Importantly, the class of interim orders that can be made pursuant to s 44(6)(bb)(ii) of the Act are not restricted to the orders that can be made pursuant to s 23A of the Act when finally determining a claim of harsh, oppressive or unfair dismissal.  The power to make an interim order pursuant to s 44(6)(bb)(ii) is confined only by the requirement that the order be interim and that the Commission must form the requisite opinion that the order must be appropriate in the circumstances pending resolution of the claim.  Thus, the class of orders that could be made under this provision are variable.  Leaving aside the issue whether a particular type of order could be characterised as appropriate in particular circumstances, whilst an interim order for reinstatement clearly falls within the class, other types of orders may also be made, for example, it may be appropriate in particular circumstances to make an interim order to allow an employee to use equipment owned by the employer such as a mobile telephone or computer pending resolution of the claim.

51      The circumstances that could be raised in matters where an application is made under s 44(6)(bb)(ii) are variable.  By requiring the Commission to consider the circumstances and to only make orders that the Commission thinks appropriate to those circumstances, the power to make an interim order is conditioned by the circumstances raised in a matter.  However, when making an interim order that the Commission is of the opinion is appropriate, the Commission is bound to act in accordance with s 26(1) of the Act.

52      In my opinion, it would be inappropriate to apply an onus of proof in the strict sense on the organisation seeking an interim order under s 44(6)(bb)(ii) of the Act.  This is because the nature of proceedings convened under s 44(6), whilst attendance is compulsory, are informal and are a forum the Commission provides a process for, and encouragement to, the parties to settle an industrial dispute.  As Nicholson J (with whom Kennedy and Pidgeon JJ agreed) remarked in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 990, 998:

The Commission is enjoined to act without regard to technicalities or legal forms. The conference procedure itself is stamped with the hall-mark of informality in that it is usually held in private, in that the Commission is at large to do what it considers right and proper to assist the parties to reach a settlement, and in that the Commission may make suggestions. … I add that those same provisions indicate to me that a section 44 conference is not the place for the taking of evidence so that the absence of a record cannot obtain the significance which it has in the cases relating to Magistrates. The whole force of the provisions is to structure the section 44 conference as a vehicle for informal exchange and suggestions which may culminate in directions, orders or declarations based on a free exchange between the parties.

53      The observations of Nicholson J can be said to emerge not only from the informal process provided for in s 44 of the Act, but also from:

(a) Two principal objects of the Act that relevantly provide that it is a principal object:

(b) to encourage, and provide means for, conciliation with a view to amicable agreement, thereby preventing and settling industrial disputes; and

(c) 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; and

(b) Section 26(1) which provides:

In the exercise of its jurisdiction under this Act the Commission —

(a) shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and

(b) shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and

(c) shall have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and

54      At a compulsory conference convened under s 44 of the Act no evidence is received by the Commission.  The circumstances before the Commission are usually raised in the application made by the party who seeks a compulsory conference, the submissions made by the parties and any documents the parties provide to the Commission.  It is not the role of the Commission to conclusively assess the reliability of the matters stated by the parties in oral submissions or the reliability of any documentary material.  As with other interlocutory proceedings, the submissions and material put by each party would usually be assessed at its highest.

55      No rebuttable presumption is created by the enactment of s 44(6)(bb)(ii) of the Act.  There is nothing in the words of s 44(6)(bb)(ii) when considered with the purpose or context of s 44 of the Act that creates such a presumption.  The words in s 44(6)(bb)(ii) are clear.

56      Ultimately the test that should be applied is whether in the opinion of the Commission, the circumstances before it in a particular matter require the making of an interim order and that any interim order made is to be, in the opinion of the Commission, appropriate.

Is error established?

57      The assessment of the circumstances raised by the parties is a discretionary decision.  A discretionary decision cannot be set aside because the members of the Full Bench would have exercised the discretion in a different way.  Error in the decision-making process must be demonstrated:  House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

58      The test to be applied is that the Commissioner convening the s 44 conference must form the opinion that an interim order is appropriate in the circumstances.

59      In this matter, an interim order for reinstatement was sought by the union.  The learned Commissioner refused to make an interim order and dismissed the union's application for an interim order to reinstate Mr Bellantone pending the resolution of the claim of harsh, oppressive and unfair dismissal.

60      The union contends that by acting on the wrong principle, the learned Commissioner took into account irrelevant considerations and failed to take account of relevant considerations.  It also says that, whilst it concedes that the learned Commissioner found that the allegation against Mr Bellantone was a serious one, the learned Commissioner did not make a finding that Mr Bellantone did not have an arguable case.

61      When the reasons for decision of the learned Commissioner are reviewed, it is clear that no error can be established.

62      In my opinion, the learned Commissioner properly pointed out to the parties that there must be some circumstance or circumstances which would give rise to the exercise by the Commissioner of the power to grant interim relief ([7], AB 26).  Whilst the Commissioner did not specifically refer to the requirement that he must form the requisite opinion, it follows from his reasoning that followed that he did consider whether he could form a view of the circumstances that would in his mind make it appropriate for him to make an interim order of reinstatement.  It is apparent from his reasons he formed the opinion the following circumstances did not render the making of an interim order of reinstatement appropriate:

(a) the allegation of misconduct that led to the termination of employment of Mr Bellantone was serious;

(b) the fact of misconduct was not in dispute but Mr Bellantone sought to explain his conduct and apologise;

(c) the financial impact on Mr Bellantone of the termination of employment is a consequence that flows from most dismissals;

(d) if the substantive claim is successful orders for compensation for loss can be made; and

(e) the fact that Mr Bellantone was suspended on pay for a lengthy period is not a factor that favours an order for reinstatement of Mr Bellantone.  If anything Mr Bellantone has had a considerable period of time to pursue other employment options.  (It is notable that a doctor's report provided to the learned Commissioner stated that Mr Bellantone had during his suspension been applying for positions within the Department and in private schools and in businesses.)

63      The learned Commissioner had regard to all of the relevant circumstances in forming the opinion not to make the interim order sought by the union.  The union contended in this appeal that the learned Commissioner failed to take into consideration Mr Bellantone's medical condition and the circumstance that Mr Bellantone believed he was being effectively persecuted by subsidiary allegations.  Whilst the first matter may be regarded as a relevant circumstance, I do not agree that an opinion by Mr Bellantone that he was being persecuted is relevant in this matter as to whether an interim order should be granted.  Such a contention at a conference could not be regarded as having any basis without some material that could support it.  As to the first matter, whilst Mr Bellantone's medical condition may be relevant to a determination of the substantive claim, no submission was made by the union as to how it could be said that Mr Bellantone's medical condition weighed in favour of the making of an interim order of reinstatement.

64      The learned Commissioner did have regard to the persons affected by the application for the interim order as required by s 26(1)(c) of the Act.  He considered the union's argument that the circumstance of Mr Bellantone being on 14 months' paid suspension without work.  He, however, rejected the union's submission that it was a fact that mitigated in Mr Bellantone's favour.  The learned Commissioner also referred to the submission made on behalf of the Department that recovery of funds may be difficult if the substantive claim is dismissed.  This is a matter the union says the learned Commissioner was not entitled to have regard to.  I do not agree.  In any event, the learned Commissioner did not appear to consider this was a material issue as he did not refer to it in the reasons he gave for refusing the application for an interim order.

65      By making the observation that there was nothing further raised by the union to cause him to exercise his discretion, he was simply referring to the fact that he did not consider that there had been any other circumstances put to him by the union to cause him to form a different opinion.  It does not follow from this observation that he considered that an onus of proof was cast on the union to persuade him that the order sought should be made.

66      The union does not challenge the weight given to the circumstances considered by the learned Commissioner.  As there is no identifiable error in the reasons of the learned Commissioner, the appeal must fail as the decision to dismiss the union's application for an interim order was open to have been made on consideration of the circumstances raised by the parties.

BEECH CC

67      I have had the advantage of reading in draft form the reasons for decision of her Honour the Acting President.  I agree with those reasons, and the order to issue, and have nothing to add.

SCOTT ASC

68      I have had the advantage of reading in draft form the reasons of her Honour, the Acting President.  I agree with those reasons and have nothing further to add.