Appeal against a order of the Industrial Magistrate in matter no. M 123 of 2018 given on 9 August 2018

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2018 WAIRC 00746

DELIVERED : Monday, 17 September 2018

FILE NO. : FBA 8 OF 2018

Appellant

AND

State School Teachers' Union of WA

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Magistrate's Court

Coram : Industrial Magistrate M Flynn

File No : M 123 of 2018

CatchWords : Industrial Law (WA) - Appeal against interim order made by Industrial Magistrate's Court - Appeal incompetent - Interim order made pursuant to s 83(5) and s 83(7) of the Industrial Relations Act 1979 (WA) a 'finding' - An appeal against a finding not a 'decision' from which an appeal will lie under s 84 - Observation made that power to make an interim order for purpose of preventing further contravention of an industrial agreement did not extend to an order of reinstatement or to restart disciplinary process

Legislation : Industrial Relations Act 1979 (WA), s 7, s 7(1), s 23, s 23(1), s 23A s 29(1)(a)(ii), s 29(1)(b)(i), s 44(6)(bb)(ii), s 45, s 49, s 49(2), s 49(2a), s 82, s 83, s 83(1), s 83(2), s 83(4), s 83(4)(a)(ii), s 83(5), s 83(7), s 83A, s  83C, s 84, s 84(1), s 84(2), s 84(5)

Surveillance Devices Act 1998 (WA), s 5(1)(b), s 9(1)

Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 (WA), s 6, s 30(b)

Labour Relations Reform Act 2002 (WA), s 155(1)

Justices Act 1902 (WA)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr D Anderson, of counsel

Respondent : Mr D Scaife, of counsel

Solicitors:

Appellant : State Solicitor for Western Australia

Respondent : Eureka Lawyers

Case(s) referred to in reasons:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27

Anderson v Pope (1986) 66 WAIG 1563

Brennan v Williams (1951) 53 WALR 30

Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410

Carr v Finance Corporation of Australia Ltd (1980) 147 CLR 246

Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767

Director General of Department of Transport v McKenzie [2016] WASCA 147

G&R Rossen Pty Ltd v Buchanan [2018] WAIRC 00334; (2018) 98 WAIG 305

Metcalf v Permanent Building Society (in liq) (1993) 10 WAR 145

Nabeel Ashraf v Ms Michelle Hoad Managing Director North Metropolitan TAFE 2018 WAIRC 00699

National Tertiary Education Union v Le Trobe University (2015) 254 IR 238

O'Toole v Charles David Pty Ltd (1990) 171 CLR 232

Penniel v Driffill (1980) WAR 30

Pooley v Commissioner of Police [2009] WASCA 67; (2009) 89 WAIG 479

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11

The Chief Secretary for the State of Western Australia v Western Australian Prison Officers' Union of Workers (1981) 61 WAIG 1911

The Commissioner of Police of Western Australia v AM [2010] WASCA 163(S); (2011) 91 WAIG 6

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

TVW Limited v Robinson and Cant (1964) WAR 33

WA Pines Pty Ltd v Hamilton (1980) WAR 29

Reasons for Decision

SMITH AP:

Background

1         This is an appeal against an interim order made by the Industrial Magistrate's Court on 9 August 2018 in M 123 of 2018.

2         M 123 of 2018 was instituted as an originating claim in the Industrial Magistrate's Court on 23 July 2018 by The State School Teachers' Union of WA (Incorporated) (the union) against the appellant claiming a failure to comply with cl 23.1 of the Western Australian TAFE Lecturers' General Agreement 2014 (the 2014 Agreement).

3         Clause 23 of the 2014 Agreement provides:

23. BREACHES OF DISCIPLINE

23.1 No employee shall be subject to the penalties of sub-clause 23.2 of this clause unless a fair procedure is applied and decision and processes incorporate the principles of natural justice and are free from bias.

23.2 If, in accordance with the College's disciplinary policy, an employee is found by the College to have committed a breach of discipline, the College may:

(a) reprimand the employee;

(b) transfer the employee to another public sector agency, with the consent of that agency or transfer the employee to another position at the College at which the employee is currently employed;

(c) impose on the employee a fine not exceeding the equivalent of five (5) days pay that the employee would have received immediately prior to the breach of discipline finding;

(d) reduce the monetary remuneration of that employee;

(e) reduce the level of classification of the employee;

(f) dismiss the employee; or

(g) except where the employee is dismissed under sub-clause 23.2 (f) of this clause, take action under any two or more of the above sub-clauses.

23.3 Other than in the case of termination in accordance with sub-clause 23.2 (f) of this clause, which is subject to other provisions under the Industrial Relations Act 1979, an employee aggrieved by a decision resulting from the disciplinary process may appeal against that decision by referring the matter to the Commission for determination.

4         The proceedings arose out of the appellant instituting disciplinary proceedings against a member of the union, Mr CS.  During a disciplinary process the appellant had regard to an audio recording of a conversation between Mr CS and two other employees of the appellant.  The union claims the use of the recording by the appellant in the disciplinary process is in breach of cl 23.1.

5         In particular, the union claims the recording of the conversation was made in contravention of s 5(1)(b) of the Surveillance Devices Act 1998 (WA) and s 9(1) of the Surveillance Devices Act prohibits the communication or publishing of an audio recording to officers, employees or agents of the appellant and others.

6         In the statement of claim annexed to the originating claim in M 123 of 2018, the union seeks a finding that the appellant contravened or failed to comply with cl 23.1 of the 2014 Agreement and seeks the following (final orders):

(2) An order pursuant to s 83(4)(a)(ii) of the IR Act imposing a penalty on the Respondent for its contravention or failure to comply with cl 23.1 of the Agreement.

(3) An order pursuant to s 83F(2)(b) that the Respondent pay to the Claimant any penalty imposed upon it.

(4) An order pursuant to s 83(5) of the IR Act that the Respondent (whether by its officers, delegates, agents, employees or other representatives) shall:

(a) destroy all copies in its possession or control of an audio recording of a conversation between CS, ER and JD recorded on 8 August 2017 (Audio Recording);

(b) recommence any disciplinary inquiry or process in relation to the conduct of CS on 25 July 2017;

(c) be restrained from:

(i) having regard to the Audio Recording in any disciplinary inquiry or process in relation to the conduct of CS on 25 July 2017 recommenced pursuant to this order;

(ii) permitting MH, or any of its officers, employees or agents who are aware of the Audio Recording, from having any involvement in any disciplinary inquiry or process, including the making of any decision, in relation to the conduct of CS on 25 July 2017 recommenced pursuant to this order.

(5) Such further or other orders as the Court considers appropriate.

7         On 27 July 2018, the union filed an application in M 123 of 2018 seeking:

1. An interim order pursuant to ss 83(5) and (7) of the Industrial Relations Act 1979 (WA) that, until the hearing and determination of the Claimant's claim for relief or further order, the Respondent (whether by its officers, delegates, agents, employee or other representatives) be restrained from:

a. using, publishing or communicating an audio recording of a conversation between CS, ER and JD recorded on 8 August 2017 (Audio Recording);

b. conducting (or continuing to conduct) or taking any further steps in any disciplinary inquiry or process in relation to the conduct of CS on 25 July 2017 based upon the Audio Recording or otherwise;

c. dismissing from employment, or taking any other disciplinary action against, CS based upon the Audio Recording or otherwise;

d. permitting MH, or any of its officers, employees or agents who have knowledge of the contents of the Audio Recording, from having any involvement in any disciplinary inquiry or process, including the making of any decision, in relation to the conduct of CS.

2. An order that the affidavit of CS sworn on 26 July 2018 and the annexures thereto be sealed on the Court file and not be disclosed to any person without further order.

8         The application for an interim order was listed to be heard on 9 August 2018.

9         On 8 August 2018, the appellant dismissed Mr CS.

10      At the hearing on 9 August 2018, the union made an oral application to amend its application for an interim order and sought, among other orders, an order for reinstatement of Mr CS.

11      The Industrial Magistrate rejected a submission made on behalf of the appellant that the Industrial Relations Act 1979 (WA) (the IR Act) confers exclusive jurisdiction on the Commission to deal with disputes about unfair dismissal and interim reinstatement orders.

12      In oral reasons given by the Industrial Magistrate on 9 August 2018, his Honour stated that he was required to consider whether there was a serious issue to be tried in respect of (AB 79 ‑ 81):

(a) whether the making of the recording by Mr D and the use of the recording by the appellant was lawful;

(b) whether or not the use of the recording will be found to contravene cl 23(1) of the 2014 Agreement; and

(c) whether or not the final relief before the Industrial Magistrate's Court is likely to involve reinstatement as an appropriate form of relief.

13      The Industrial Magistrate formed the opinion that there was a prima facie case in respect of each of these matters.  In particular, his Honour appeared to accept that an order for reinstatement was an order within the power of the Industrial Magistrate's Court to make.  His Honour observed that such an order may well be the same as the final order (albeit on a temporary basis) and that was an unavoidable consequence of the power conferred on the Industrial Magistrate's Court by s 83(5) and s 83(7).

14      The Industrial Magistrate then found that the balance of convenience favoured the making of an interim order when regard was had to the following matters:

(a) If the union is (ultimately) successful then in six to 12 months' time there would be an order that Mr CS's wages and entitlements be paid from when he was otherwise terminated, assuming there was an order for his reinstatement.

(b) If an interim order is not made Mr CS would not be receiving any salary for that period.

(c) If an interim order is not made then Mr CS's reputation may be affected and that may affect his ability to earn an income pending a final hearing.

15      Following regard to these matters, the Industrial Magistrate made an order on 9 August 2018 (the subject of this appeal) as follows:

The court makes an interim order pursuant to sections 83(5) and 83(7) of the Industrial Relations Act 1979 (WA) that, until the hearing and determination of the claimant's claim for relief or further order:

1. The respondent must reinstate CS to his employment with immediate effect.

2. The respondent must not use any audio recording (or transcript of the same) of a conversation on 8 August 2017 involving CS.

3. The respondent must not initiate or take any steps for a breach of discipline in reliance on anything said or done by CS on 8 August 2017.

4. The respondent must not rely upon anything said or done by CS on 8 August 2017 in connection with any allegation of a breach of discipline against CS.

5. The following employees of the respondent must not be involved in any breach of discipline process concerning CS: MH.

6. The claim be listed for a pre-trial conference before the Clerk of the Court at 11.00 am on 15 August 2018.

7. The parties have liberty to apply.

8. Costs, if any, be reserved.

9. The claim is adjourned to 5 September 2018 at 10.00 am for trial.

Grounds of appeal

16      Ground 1 of the amended grounds of appeal raises the issue whether the Industrial Magistrate's Court has power to make an interim order of reinstatement.  Ground 1 alleges the Industrial Magistrate erred in law in making order 1 of the interim order when there was no power to do so.  In the particulars to ground 1, the appellant alleges:

Section 83(5) of the Industrial Relations Act 1979 (WA) only provides power for the Court to make an order for the purpose of preventing any further contravention or failure to comply with an instrument.

(i) There is no power for the Court to make an order to undo a contravention or failure to comply with an instrument.

(ii) If the appellant contravened the Western Australian TAFE Lecturer's General Agreement 2014 (Agreement) when terminating Mr CS's employment, any contravention is already complete, and an order for reinstatement does not amount to an order for the purpose of preventing any further contravention or failure to comply with an instrument.

17      In ground 2(a) of the amended grounds of appeal the appellant alleges the Industrial Magistrate erred in law in finding there was a serious question to be tried on grounds that any failure to afford a fair disciplinary process is not actionable by way of enforcement under s 83 of the IR Act and is only actionable by way of a claim to the Commission.

18      Grounds 2(b), 3 and 4 raise issues whether the Industrial Magistrate's Court erred in law which go to the factual matters considered by the Industrial Magistrate:

(a) when considering whether there was a serious question to be tried; or

(b) resulted in a decision that was manifestly unreasonable.

19      For reasons that follow, I am of the opinion that the appeal must fail on grounds the interim order made by the Industrial Magistrate's Court is not a 'decision' within the meaning of s 84 of the IR Act from which an appeal will lie.

20      However, if I am wrong in respect of this point, I would uphold ground 1 and ground 2(a) of the grounds of appeal.

Is Jurisdiction conferred on the Full Bench to hear and determine an appeal against an interim order made by the Industrial Magistrate's Court?

21      Section 84 of the IR Act creates a statutory right of appeal to the Full Bench against a 'decision' of the Industrial Magistrate's Court.

22      Section 84(1) of the IR Act provides:

In this section decision includes a penalty, order, order of dismissal, and any other determination of an industrial magistrate's court, but does not include a decision made by such a court in the exercise of the jurisdiction conferred on it by section 96J.

23      The union filed an application in this appeal on 28 August 2018 seeking orders that the appeal be struck out on grounds that the appeal is incompetent, as the appeal is against an order of the Industrial Magistrate's Court that has not finally determined the application before it and therefore is not a 'decision' for the purposes of s 84 of the IR Act.

24      The first question raised in this appeal is whether the interim order made by the Industrial Magistrate's Court on 9 August 2018 is a 'finding' within the meaning of s 7(1) of the IR Act and whether a 'decision' in s 84(1) includes a decision that is a 'finding' as defined.

25      A 'finding' is defined in s 7(1) of the IR Act to mean 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. 

26      In Anderson v Pope (1986) 66 WAIG 1563, the Industrial Appeal Court found a decision of the Industrial Magistrate that does not finally determine the application before it does not constitute 'a decision' from which an appeal will lie under s 84(1).  In that matter, the Industrial Magistrate at first instance heard argument on 52 separate complaints against several defendants as to whether there was a case to answer.  The Industrial Magistrate, after reserving his decision, delivered reasons for decision and found that there was no case to answer for three defendants but found there was a case to answer by others.  The defendants against whom a finding was made that there was a case to answer filed an appeal.  The Full Bench subsequently dismissed the appeal as incompetent and a further appeal was instituted to the Industrial Appeal Court under s 90(1) of the IR Act.

27      The Industrial Appeal Court in Anderson v Pope unanimously dismissed the appeal.  In doing so, their Honours determined that the meaning of 'decision' in s 84(1) did not extend to a finding, ruling or other expression of opinion or direction that fell short of a final determination of the application.  In particular, their Honours found that a 'decision' within the meaning of s 84(1) did not extend to a 'finding' as defined in s 7(1) of the IR Act. 

28      In determining whether a 'decision' in s 84(1) should be construed as only a final decision or to also include a 'finding', the members of the Industrial Appeal Court had regard to the history of amendments to the IR Act in 1984 and to a previous decision of the Industrial Appeal Court which led to the amendments to the IR Act in 1984 to insert the definition of 'finding' in s 7(1) of the IR Act and amended the power of the Full Bench to hear appeals under s 49 of the IR Act against the decisions of the Commission that are 'findings' (s 6 and s 30(b) of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 (WA)).

29      The decision which led to amendments in 1984 and referred to by the members of the Industrial Appeal Court in Anderson v Pope is the decision in The Chief Secretary for the State of Western Australia v Western Australian Prison Officers' Union of Workers (1981) 61 WAIG 1911 (Prison Officers' Sick Leave Case).

30      In the Prison Officers' Sick Leave Case, the parties were in dispute following industrial action by prison officers about the taking of sick leave without a medical certificate.  Following a conference convened by the Senior Commissioner, an interim order was made, pursuant to s 45 of the IR Act, which required until further order the prison officers to return to work, and entitling the prison officers to take five days' leave per annum without deduction of pay.  The Full Bench found an appeal was incompetent against the interim order as the order did not constitute a 'decision' within the meaning of s 49 of the IR Act.  The Industrial Appeal Court agreed.  At the time that appeal was heard the IR Act did not contain a definition of the term 'decision'.  However, their Honours found that for an order to constitute a 'decision' within the meaning of s 49 (and from which an appeal would lie) the ordinary and natural meaning of 'decision' in s 84(1) was an order that finally determined the rights between the parties; that is an order that constitutes a final determination of a matter.

31      In the judgement of Olney J in Anderson v Pope, his Honour had regard to the findings made in the Prison Officers' Sick Leave Case and to the amendments in 1984 to the IR Act that followed that decision.  His Honour set out this history of legislative amendment as follows (1564 - 1565):

Apart from resorting to the ordinary meaning of the language used it is sometimes helpful in the construction of a statute to look to its history and in the present case it is appropriate that this should be done. Section 6 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 (the 1984 Act) repealed the whole of section 7 of the then Industrial Arbitration Act 1979 (renamed the Industrial Relations Act 1979) and substituted the now current section. The repealed section did not contain any definition of either 'decision' or 'finding'. Prior to the 1984 Act section 49(2) provided for an appeal to the Full Bench from any decision of the Commission. That provision was not amended but an additional subsection was inserted:

(2) (a) An appeal does not lie under this section from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.

The effect of these amendments was to permit an appeal in cases involving the public interest from a 'finding' of the Commission. Relevantly the 1984 Act did not affect section 84. It is true that the definition in section 84(1) was amended by the deletion of the word 'conviction' as one of the things included in the meaning of 'decision' but that change has no bearing on the question of whether the section demonstrates a 'contrary intention' sufficient to displace the operation of section 7(1).

It is worthwhile to pause for a moment to consider and compare the position prevailing both before and after the 1984 Act. Prior to the amendment an appeal lay to the Full Bench from any decision of the Commission [Section 94(2)]. There was no general definition of the term 'decision' and accordingly that term would have borne its ordinary and natural meaning. In section 84 provision was made for an appeal to the Full Bench from any decision of an Industrial Magistrate but for the purpose of that section the term 'decision' was defined to include certain specific matters. It is beyond doubt that prior to the 1984 Act 'decision' in section 84 meant something different from the same term when used in section 49. The choice of language used in the definition of 'decision' in section 7(1) is significant. The term is said to include 'award, order, declaration or finding'. All of those terms are appropriate in the context of the exercise of the arbitral jurisdiction of the Industrial Relations Commission. With the exception of the word 'order' they are not appropriate to the exercise of jurisdiction by the Industrial Magistrate. Such amendments as were made following the incorporation into the Act of the concept of a 'finding' can be seen to have applied only in relation to the functions of the Commission itself. Reference has already been made to section 49(2)(a) but there is another amendment which supports the view I have just expressed and that is the inclusion of the word 'finding' in section 34(4) so as to read as follows:

(4) Except as provided by this Act, no award, declaration, finding, or proceeding of the President, the Full Bench, or the Commission shall be liable to be challenged, appealed against, reviewed, quashed, or called in question by any court on any account whatsoever.

In the absence of any relevant change to section 84(1) it is fair to conclude that the legislature's intention was to leave unaffected the right of appeal in respect of proceedings before an Industrial Magistrate but to expand the circumstances when an appeal may be had from the Commission to the Full Bench. The reason for this expansion of the right of appeal from decisions of the Commission which do not finally decide, determine or dispose of the matter to which the proceedings relate can be found in the decision of this Court in The Chief Secretary for Western Australia v. WA Prison Officers' Union 61 WAIG 1911 where it was held that the Act as it then stood (in 1981) did not provide a right of appeal from an interim order of the Commission. The effect of the amendments made in 1984 has been to overrule by legislation the decision in the Chief Secretary's case but it is not possible to extract from the legislation as amended any intention to affect the right of appeal from an Industrial Magistrate.

32      In Anderson v Pope, each of the members of the Industrial Appeal Court considered whether a ruling by the Industrial Magistrate that there was a case to answer came within the meaning of 'decision' in s 84(1) of the IR Act.

33      Olney J went on to observe (1565):

When one has regard to the role of the Industrial Magistrate to hear and determine applications under section 83 (1) and the limited nature of the functions that may be performed by him I think that there is every reason to believe that the definition in section 84 (1) was intended to refer only to the exercise of the particular powers referred to in the preceding section. I do not think there is any scope within the definition in section 84 (1) to extend the meaning of that term to a finding or ruling or other expression of opinion or direction given in the course of proceedings which falls short of a final determination of the application.

34      It was clear that the first sentence of his Honour's reasoning must be read in context of the sentence that follows in this passage and to the previous paragraph of his Honour's reasons where his Honour said (1565):

By section 82 (1) an Industrial Magistrate has jurisdiction to hear and determine any application made to him under section 83 (1). The types of application provided for in the latter subsection relate to the enforcement of an award, industrial agreement or order in circumstances where a person is said to have contravened or failed to comply with any provision thereof. Upon the hearing of such an application the Industrial Magistrate may by order issue a caution, impose a penalty or dismiss the application with or without costs. In addition if it appears to the Industrial Magistrate that an employee has not been paid by an employer against whom the proceedings have been taken his entitlement under an award or order he may order the employer to pay the amount of the underpayment which is deemed to be a penalty. Furthermore, when an Industrial Magistrate makes an order for the payment of a penalty or costs he must state in the order the name of the person liable to pay the penalty or costs and the name of the person same are payable.

35      In Anderson v Pope, Rowland J importantly pointed out it should be remembered that an appeal is entirely a creature of statute (1566).  His Honour also observed:

By section 84 (2):

Subject to this section an appeal lies to the Full Bench in the manner prescribed from any decision of an Industrial Magistrate.

...

By section 84 (2):

Decision — includes a penalty, order, order of dismissal and any other determination of an Industrial Magistrate.

Provisions of that nature in substantially that form have been dealt with by the courts in the past and it has been invariably held that determination, when used in relation to the civil courts, in which description I include courts exercising criminal as well as civil jurisdiction, means final determination. Section 4 Justices Act, WA Pines Pty Ltd v. Hamilton (1980) WAR 29 and Penniel v. Driffil (1980) WAR 30.

As I understand the appellants' argument it is that the definition in section 84(1) uses the word 'includes' so that 'decision' is not limited in its scope and it can in fact incorporate its dictionary meaning and the definition of the word within section 7 of the Industrial Relations Act. By the definition: 'In this Act, unless the contrary intention appears …' – '"decision": includes award, order, declaration or finding.' 'Finding' is also defined in section 7 – 'means 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'.

Counsel for the appellants notes that these definitions apply 'in this Act'. They are not limited to parts of the Act. Accordingly, as the definition in section 84 uses the word 'includes', then, unless a contrary intention appears, full force should be given to the section 7 definitions.

In my view, it is abundantly clear that a contrary intention does appear.

In the Act, provision is made for different tribunals to undertake different functions. On the one hand, one has the traditional Industrial Tribunal that is concerned with awards as defined and declarations as defined. Those tribunals have express power to make orders and findings as well as awards and declarations. An Industrial Magistrate has no power to make awards or declarations. The powers and functions of the Industrial Magistrate are set out in Part III. Those powers are more akin to a civil court exercising civil or criminal jurisdiction. By section 83(6) and (7), however, standards of proof and practice and procedure in civil proceedings will be observed by the Industrial Magistrates. The Commission is not so limited — see, for example, section 26.

One can see immediately that there is a great difference between the two tribunals. Their functions and powers are totally dissimilar. It is not at all surprising that one would find a narrower definition of 'decision' within Part III.

36      Importantly, the decision of the Industrial Appeal Court in Anderson v Pope is a decision binding upon the Full Bench.

37      The subsequent enactment of s 83(5) and s 83(7) (by s 155(1) of the Labour Relations Reform Act 2002 (WA)) conferring the power to make orders for the purpose of preventing any further (future) contravention or failure to comply with a provision of an instrument does not, in my respectful opinion, materially affect the role of the Industrial Magistrate's Court from the role of the Industrial Magistrate considered in Anderson v Pope in 1986.  The role of the Industrial Magistrate's Court in 2018 continues as a court vested with the power to enforce instruments by making limited coercive orders.

38      Section 83 confers jurisdiction on the Industrial Magistrate's Court to enforce instruments, including an industrial agreement.  The power to enforce under s 83 is not a power at large to resolve disputes between parties.  It is notable that proceedings instituted by way of an originating claim are penal in nature; that is they are claims for civil enforcement of provisions of instruments by primarily the imposition of a penalty.

39      The mere filing of a discrete application for an interim order does not have the effect at law of the creation of a substantive application.  An application for an interim order under s 83(7) cannot be made unless a substantive application has been instituted under s 83(1).

40      Although the interim order in this matter was made following a separate application made by the union in M 123 of 2018 and the Industrial Magistrate's Court determined the application by making an interim order on 9 August 2018, it cannot be said that the interim order does not constitute a 'finding' within the meaning of s 7(1) of the IR Act:

(a) Firstly, pursuant to s 83(7) an interim order can only be made pending final determination of an application made under s 83(1) (that is the substantive application for enforcement).  A decision on an application for an interim order by operation of s 83(7) made in the course of proceedings does not and cannot operate to finally decide the matter in s 83(1).  Consequently, it follows therefore that an interim order made pursuant to s 83(7) is a 'finding' within the meaning of s 7(1) of the IR Act.

(b) Secondly, the primary function of the Industrial Magistrate's Court under s 83 is to decide and determine the substantive application by making final orders.  An interim order made under s 83(7) cannot operate as a final order.

41      The test for determining whether an order is final is whether an order finally determines the rights of the parties and requires a court or tribunal in determining this question to have regard to the legal rather than the practical effect of the order:  Carr v Finance Corporation of Australia Ltd (1980) 147 CLR 246, 248 (Gibbs, J); Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767; O'Toole v Charles David Pty Ltd (1990) 171 CLR 232.

42      In Metcalf v Permanent Building Society (in liq) (1993) 10 WAR 145, Murray J, with whom Rowland and Seaman JJ agreed, observed in relation to the distinction between final and interlocutory orders (149):

It is clear I think, that such an order is not final, but merely interlocutory, because it is not such as to finally determine the rights of the parties in a principal, rather than subsidiary, cause pending between them.  It is clear that more remains to be done before the final resolution of the issues between the parties is achieved.  This is not a case which requires attention to any fine distinctions or which requires any refinement of the test broadly formulated above.  Expressed in those terms the test has been accepted as flowing from decisions of the High Court in a number of recent decisions in this Court:  see Ex parte Stiles (1989) 2 WAR 270 at 274-275; Biala Pty Ltd v Mallina Holdings Ltd (1989) 2 WAR 381 at 387-388; Michael v Freehill Hollingdale & Page (1990) 3 WAR 223 at 228; Lewandowski v Lovell (1991) 4 WAR 311 at 312-314.

43      Thus, it is immaterial that whilst an interim order is in force it has force and effect which if steps are required to be taken to comply with an order could result in expense to be paid by a person, such as the payment of wages to an employee.

44      As the respondent points out in its supplementary submissions filed on 7 September 2018, the order made by the Industrial Magistrate was plainly not an order to finally determine the rights of the parties.  The orders:

(a) were expressed to apply only 'until the hearing and determination of the claimant's claim for relief or further order';

(b) provided the parties with liberty to apply;

(c) were made pursuant to the power in s 83(7) to make interim orders 'pending the final determination of the application';

(d) included procedural orders programming the matter to a final hearing, such as by listing the matter for a pre-trial conference and a final hearing.

45      It would be an odd result if an appeal to the Full Bench would lie as of right to the Full Bench of the Commission against an interim order made by the Industrial Magistrate's Court, pursuant to s 83(7) of the IR Act, whereas an appeal against an interim order against a decision of the Commission does not lie as of right under s 49 of the IR Act.  This is because pursuant to s 49(2a) an appeal does not lie to the Full Bench from a decision of the Commission that is a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.

46      For these reasons, I am of the opinion that the appeal is incompetent and an order should be made that the appeal be dismissed.

47      If, however, I am wrong and because of the amendment to s 83 of the IR Act subsequent to the decision in Anderson v Pope is distinguishable on grounds that the enactment of the specific power of the Industrial Magistrate's Court to make an interim order pursuant to s 83(7) of the IR Act is a power to make a decision that is final and is not a 'finding', I am of the opinion that the Industrial Magistrate erred in making orders 1 to 5 of the interim order.  My reasons for making this finding are as follows.

The nature of the power conferred on the Industrial Magistrate's Court under s 83 of the IR Act

48      The primary object of statutory construction is to construe a statutory provision so that it is consistent with the language and purpose of all provisions of the statute.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy:  Director General of Department of Transport v McKenzie [2016] WASCA 147 [46] (Buss P); applying Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan and Kiefel JJ).

49      The scheme of the IR Act in respect of the creation of employer and employee's rights, duties and obligations where unions enter into negotiations with employers is that industrial instruments come into force and effect either by the Commission:

(a) exercising arbitral power in enquiring into and dealing with an industrial matter to make an award under Div 2A of Pt II or enterprise order under Div 2B of Pt II of the IR Act; or

(b) exercising administrative power to register an industrial agreement, the terms of which are agreed to by an organisation or organisations and an employer or employers under Div 2B of Pt II.

50      Section 83 of the IR Act provides:

83. Enforcing awards etc.

(1) Subject to this Act, where a person contravenes or fails to comply with a provision of an instrument to which this section applies any of the following may apply in the prescribed manner to an industrial magistrate's court for the enforcement of the provision —

(a) the Registrar or a deputy registrar;

(b) an industrial inspector;

(c) in the case of an award or industrial agreement, any organisation or association named as a party to it;

(d) in the case of an award, industrial agreement or order, an employer bound by it;

(e) any person on his or her own behalf who is a party to the instrument or to whom it applies;

(f) if an employee under an employer‑employee agreement is a represented person, a representative acting on his or her behalf.

(2) In this section —

 instrument to which this section applies means —

(a) an award; and

(b) an industrial agreement; and

(c) an employer‑employee agreement; and

(d) an order made by the Commission, other than an order made under section 23A, 32, 44(6) or 66.

(3) An application for the enforcement of an instrument to which this section applies shall not be made otherwise than under subsection (1).

(4) On the hearing of an application under subsection (1) the industrial magistrate's court may, by order —

(a) if the contravention or failure to comply is proved —

(i) issue a caution; or

(ii) impose such penalty as the industrial magistrate's court thinks just but not exceeding $2 000 in the case of an employer, organisation or association and $500 in any other case;

 or

(b) dismiss the application.

(5) If a contravention or failure to comply with a provision of an instrument to which this section applies is proved against a person as mentioned in subsection (4) the industrial magistrate's court may, in addition to imposing a penalty under that subsection, make an order against the person for the purpose of preventing any further contravention or failure to comply with the provision.

(6) An order under subsection (5) —

(a) may be made subject to any terms and conditions the court thinks appropriate; and

(b) may be revoked at any time.

(7) An interim order may be made under subsection (5) pending final determination of an application under subsection (1).

(8) A person shall comply with an order made against him or her under subsection (5).

Penalty: $5 000 and a daily penalty of $500.

51      The power conferred by s 83 is not a power to resolve industrial disputes arising out of an industrial matter.  The power to do so is conferred on the Commission pursuant to its powers and s 23(1) to enquire into and deal with any industrial matter.

52      The primary purpose of s 83 is two-fold.  Firstly, its function is to coerce and ensure compliance with an instrument by providing for the imposition of penalties as a means of deterrence.  Secondly, s 83 provides the means by which sanctions can be imposed on a person who contravenes or fails to comply with an instrument.

53      It is only where the Industrial Magistrate's Court imposes a penalty under s 83(4) that the Industrial Magistrate's Court is conferred with the power to make an order under s 83(5).  Any order the Industrial Magistrate's Court makes under s 83(5) is required by the express statutory text to be an order against a person (who has contravened or failed to comply with an instrument) 'for the purpose of preventing any further contravention or failure to comply' with the provision of the instrument.  Unless an order can be properly characterised for such a purpose, the power to make any order, other than an order imposing a penalty under s 83(4) of the IR Act, cannot be invoked.

54      The Industrial Magistrate's Court is empowered to make an interim order under s 83(5) pending final determination of an application under s 83(1) (s 83(7)).  The power to make an interim order is, however, also not a power at large.  Any interim order must be an order under s 83(5); that is it must be an order for the requisite purpose of preventing any further contravention or failure to comply with the provision claimed to be contravened or not complied with in the substantive application, that is the application made under s 83(1).

Was the interim order made by the Industrial Magistrate's Court within the power conferred by s 83(5) and s 83(7) of the IR Act?

55      It is clear that the power of the Industrial Magistrate's Court to make an interim order is subject to the preconditions in s 83(5) of the IR Act.  When this principle is applied, it follows that in this matter the Industrial Magistrate's Court was required to be satisfied that there is a serious question to be tried as to whether:

(a) the union had made out a prima facie case of a contravention or a failure to comply with an instrument (to which s 83 applies); that is was there a prima facie case that the appellant had failed to comply with cl 23(1) of the 2014 Agreement, when applying a disciplinary process for breach of discipline against Mr CS; and

(b) there is a prima facie case that the interim orders sought by the union (or the terms of an interim order the Industrial Magistrate's Court was considering whether to make) were orders that could properly be characterised as orders for the purpose of preventing any further contravention or failure to comply with cl 23(1).

56      It is only in the circumstances where the Industrial Magistrate's Court can be satisfied that a final order could be made and there is prima facie evidence or material before the Industrial Magistrate's Court taken at its highest which establishes that such an order is for the requisite purpose that an interim order can be made under s 83(7).

57      In this matter, the only clause of the 2014 Agreement claimed to be breached by the union was cl 23(1).  In light of the fact that Mr CS had ceased to be an employee of the appellant, it is difficult to contemplate that any interim order could be made against the appellant for the purpose of preventing any further contravention or failure to comply with cl 23(1).  Nor would there be power conferred on the Industrial Magistrate's Court to make such a final order under s 83(5).

58      There is no power conferred upon the Industrial Magistrate's Court to reinstate an employee following a finding made under s 83(1) that the employer has breached an award or an industrial agreement provision. 

59      Once an existing relationship of employer and employee ceases, the Industrial Magistrate's Court has no power to reactivate or recreate the relationship.  Industrial agreements cease to apply to an employee on the termination of employment: see the discussion in Pooley v Commissioner of Police [2009] WASCA 67; (2009) 89 WAIG 479.  This does not mean that a provision of an industrial agreement contravened or not complied with whilst the employment relationship was in existence cannot be enforced.

60      There is nothing in the 2014 Agreement that provides for the re‑employment or reinstatement of an employee.

61      To the contrary, cl 23.3 expressly contemplates that where an employee is dismissed, the dismissal of the employee is subject to the provisions of the IR Act; that is an application can be made by an employee pursuant to s 29(1)(b)(i) or by an organisation of employees pursuant to s 29(1)(a)(ii) of the IR Act.  The words in cl 23.1 '[n]o employee shall be subject to the penalties of sub-clause 23.2 of this clause unless a fair procedure is applied' do not provide an adjunct to a power to re-establish an employment relationship.  Such a construction is contrary to intention expressed in cl 23.3.  Nor can cl 23.1 be construed to have effect that if cl 23.1 is not complied with, the dismissal of an employee will be void and of no effect.  Clause 23.1 simply creates a procedure to be applied in a disciplinary process.  If breached, cl 23 does not provide for consequences that follow other than the processes available under the IR Act.

62      In this matter, in the absence of any power in the Industrial Magistrate's Court to make a final order for reinstatement of an employee, the union was unable to demonstrate a prima facie case for an order of reinstatement or to restart the disciplinary process.  In these circumstances, the Industrial Magistrate's discretion to make orders 1 to 5 of the interim order could not be validly invoked.  These orders were beyond power and in excess of the jurisdiction conferred on the Industrial Magistrate's Court in s 83 of the IR Act.

63      In this matter, the only final order that could be prima facie open on the material before the Industrial Magistrate's Court on 9 August 2018 is a finding that the appellant contravened cl 23(1) and an order made pursuant to s 83(4), by issuing a caution or imposing a penalty on the appellant (after hearing evidence on the merit of the claim).  However, as the employment relationship had ceased, no order could be made under s 83(5) to reinstate an employee and in effect restart a disciplinary process, as the precondition for making such an order would not be met.

64      In the absence of any contractual right for an employee whose employment is terminated to claim reinstatement there is no right at common law to make a claim for unfair dismissal.  Such a right is conferred solely by statute:  Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410.

65      A right to make a claim of unfair dismissal or the right to reinstatement of an employee whose employment is terminated is expressly conferred by s 23 (by the definition of 'industrial matter') of the IR Act.  Pursuant to s 23A of the IR Act, the Commission has power to make final orders in respect of a claim of unfair dismissal.  In the absence of the power conferred upon the Commission in s 23(1) of the IR Act to enquire into and deal with any 'industrial matter' (which include among other matters 'conditions which are to take effect after the termination of employment'), the Commission would have no jurisdiction to reinstate an employee as the relationship of employer and employee upon which the Commission's jurisdiction is founded would not exist:  see the discussion in Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11, 15 (Kennedy J) (Pepler's Case).

66      The only power to reinstate an employee is expressly conferred on the Commission under s 23A of the IR Act.

67      Pursuant to s 44(6)(bb)(ii), the Commission has power when dealing with an industrial dispute referred by an organisation (under s 29(1)(a)(ii)) to make an interim order for reinstatement of an employee.  The preconditions for making such an order were considered 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.

68      For these reasons, if the appeal is not incompetent, I am of the opinion that the Industrial Magistrate's Court erred in making orders 1 to 5 of the interim order and an order should be made by the Full Bench to quash orders 1 to 5 of the interim order.

KENNER SC:

69      The interim orders the subject of this appeal, made under ss 83(5) and (7) of the Industrial Relations Act 1979 (WA) on 9 August 2018, arose out of proceedings commenced by the respondent in the Industrial Magistrate's Court against the appellant, alleging that the appellant failed to comply with cl 23.1 of the Western Australian TAFE Lecturer's General Agreement 2014. This clause requires that before any employee is subject to a disciplinary penalty, they must be afforded procedural fairness and the disciplinary process and decision must be free from bias. It is contended at first instance by the respondent, that the appellant failed to comply with cl 23.1 of the Agreement, in that the appellant, in disciplinary proceedings in relation to a member of the respondent, had regard to and relied upon an audio recording made on 8 August 2017, which recording contravened the Surveillance Devices Act 1998 (WA).

70      The interim orders, amongst other things, required the reinstatement of the respondent's member in his employment with the appellant with immediate effect. Other orders were made in relation to a prohibition on the use of the audio recording of a conversation with the respondent's member and others on 8 August 2017, in any disciplinary proceedings against him. Also, the orders prohibited a manager of the appellant from being involved in any breach of discipline process involving the respondent's member. The respondent at first instance in the substantive application under s 83(1) of the Act, seeks orders imposing a penalty on the appellant for its contravention or failure to comply with cl 23.1 of the Agreement, under s 83(4)(a)(ii) of the Act. Furthermore, the respondent also seeks orders under s 83(5) of the Act that the appellant destroy copies of the audio recording; recommence any disciplinary enquiry or process in relation to its member; that the appellant be restrained from having regard to the audio recording in any recommenced disciplinary proceedings in relation to its member; and prohibiting the appellant's manager and others with knowledge of the audio recording, from having any involvement in such further disciplinary proceedings.

71      The appellant appeals against the interim orders made by the learned Industrial Magistrate on several grounds. A preliminary issue is taken by the respondent, however, as to the competency of the appeal. The respondent maintained that the interim orders issued by the learned Industrial Magistrate on 9 August 2018, are not orders that may be the subject of an appeal to the Full Bench under s 84(2) of the Act, as the orders do not constitute a "decision" under s 84(1) of the Act. In this respect, reliance is placed by the respondent on the decision of the Industrial Appeal Court in Anderson and Ors v Pope (1986) 66 WAIG 1563. The appellant contends the appeal is competent.

Is the appeal competent?

72      An appeal is a statutory right and it is the relevant statute that governs the nature of an appeal and the decisions or orders that may be the subject of an appeal. The present appeal to the Full Bench is made under ss 84(1) and (2) of the Act which are in the following terms:

84. Appeal from industrial magistrate's court to Full Bench

(1) In this section decision includes a penalty, order, order of dismissal, and any other determination of an industrial magistrate's court, but does not include a decision made by such a court in the exercise of the jurisdiction conferred on it by section 96J.

(2) Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of an industrial magistrate's court.

73      An appeal to the Full Bench from a decision of the Industrial Magistrate's Court is different to an appeal to the Full Bench from a decision of the Commission under s 49(2) of the Act. Under that subsection, an appeal lies to the Full Bench from any "decision" of the Commission. "Decision" is defined in s 7 of the Act as "includes award, order, declaration or finding". A "finding" is defined as:

finding means 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;

74      In the case of a "finding", the Full Bench must, under s 49(2a) of the Act, be satisfied that the matter is of such importance that in the public interest, an appeal should lie. In effect, in practical terms, leave of the Full Bench is required for such an appeal to be brought.

75      The issue arising in Anderson was whether the reference in s 84(1) of the Act to "decision" included the extended definition of "decision" in s 7(1), in relation to a "finding". This was because the subject matter of the appeal from the Industrial Magistrate's Court in that case, was a decision by the Court that there was no case to answer against several defendants in the proceedings. On appeal to the Full Bench, it was contended that the appeal was incompetent because the Industrial Magistrate's decision in relation to the no case to answer issue, was not a final determination for the purposes of s 84(1). It was argued that s 7(1), containing the extended definition of "finding", did not apply to s 84(1) of the Act. The Full Bench found that this was so. The issue then went on further appeal to the Industrial Appeal Court.

76      In the decision of the Court, Olney J concluded that the Full Bench was correct in coming to the opinion that s 7(1) does not apply to an appeal to the Full Bench from a decision of the Industrial Magistrate's Court under s 84 of the Act. His Honour was of the view that for the purposes of s 7(1) of the Act, which is prefaced with the words "In this Act, unless the contrary intention appears", the terms of s 84(1) did disclose a contrary intention. Thus, s 7 did not apply to and extend the meaning of s 84(1), properly construed. Furthermore, Olney J considered the legislative history of provisions of the Act dealing with appeals to the Full Bench. His Honour referred to the insertion of s 49(2a), in relation to an appeal from a decision of the Commission which was a "finding", and that the Parliament did not at the same time, amend s 84(1), to extend the meaning of "decision" in similar terms.  Olney J considered that the expansion of the right of appeal from Commission decisions, which did not finally decide or determine a matter, arose from an earlier decision of the Industrial Appeal Court in The Chief Secretary for Western Australia v WA Prison Officers Union (1981) 61 WAIG 1911, which held that at the material time, there was no right of appeal from an interim order of the Commission.

77      In further consideration of the point, Olney J had regard to earlier decisions of the Full Court of the Supreme Court when considering the corresponding definition of "decision" in the then Justices Act 1902 (WA). These included Brennan v Williams (1951) 53 WALR 30, WA Pines Pty Ltd v Hamilton (1980) WAR 29 and Penniel v Driffill (1980) WAR 30. His Honour referred to the observations of Brinsden J in Chief Secretary to the effect that s 84(1) of the Act at that time, was sufficiently like the corresponding definition in the Justices Act, to warrant the conclusion that a "decision" means a final determination of the whole case at hand and not a ruling given during the proceedings. Olney J was not however, persuaded by these obiter observations of Brinsden J and at 1565, expressed the view that the difference in wording between the definition in the then Justices Act and s 84(1) of the Act, meant that the earlier cases such as Brennan, Penniel, and WA Pines, did not mean that the definition in s 84(1) was exhaustive. His Honour preferred to examine the question considering the terms of ss 82 and 83 of the Act.

78      Accordingly, at 1565 Olney J said:

In the present context I think that the answer to the question lies in a consideration of sections 82 and 83 of the Act.  By section 82(1) an Industrial Magistrate has jurisdiction to hear and determine any application made to him under section 83(1).  The types of application provided for in the latter subsection relate to the enforcement of an award, industrial agreement or order in circumstances where a person is said to have contravened or failed to comply with any provision thereof.  Upon the hearing of such an application the Industrial Magistrate may by order issue a caution, impose a penalty or dismiss the application with or without costs.  In addition if it appears to the Industrial Magistrate that an employee has not been paid by an employer against whom the proceedings have been taken his entitlement under an award or order he may order the employer to pay the amount of the underpayment which is deemed to be a penalty …

When one has regard to the role of the Industrial Magistrate to hear and determine applications under s 83(1) and the limited nature of the functions that may be performed by him I think there is every reason to believe that the definition in section 84(1) was intended to refer only to the exercise of the particular powers referred to in the preceding section.  I do not think there is any scope within the definition in section 84(1) to extend the meaning of that term to a finding or ruling or other expression of opinion or direction given in the course of proceedings which fall short of a final determination of the application.

79      Rowland J after considering the arguments also came to the view that s 7 did not extend to the terms of s 84(1). His Honour noted that, as did Olney J, at the time that s 7 was introduced into the Act in 1984, there was no corresponding change to the terms of s 84(1), except in relation to a matter not relevant for present purposes. In reaching these views, his Honour said at 1567:

In my view the draftsman has, by retaining section 84(1), moved completely away from any other "decision" which is referred to in the Act and he has used decision advisedly as it is used in civil courts, using language that is traditionally used for that purpose and reinforcing that traditional use by the use of the words "and other determinations".  The words in that subsection follow similar words which have been given a certain meaning by decisions of the Full Court of the Supreme Court of this State, which I have already cited, as in the Chief Secretary for Western Australia v. WA Prison Officers Union 61 WAIG 1911.  Brinsden J., at 1913 in obiter dicta, considered that these decisions seemed applicable.

80      The other member of the Court in Anderson, Franklyn J, agreed with the reasons of both Olney and Rowland JJ.

81      The appellant's argument was essentially that the ratio of Anderson is that s 84 of the Act provides for a party to bring an appeal against a decision of an Industrial Magistrate exercising a power under s 83. As the interim order power under ss 83(5) and (7) of the Act was introduced into s 83 after the decision in Anderson, it logically follows that the observations of Olney J in his judgement to the effect "the particular powers referred to in the preceding section" must be now read to extend to the powers in ss 83(5) and (7) to make an interim order.  Furthermore, the observations of Olney J in relation to a "final determination of the application", set out above, were consistent with the terms of s 83 as it then was, which only empowered an Industrial Magistrate to make orders for final relief. In further written submissions, the appellant therefore maintained that Anderson is not binding on the Full Bench, for these reasons.

82      Additionally, in its further written submissions, the appellant referred to another earlier decision of the Full Court in TVW Limited v Robinson and Cant (1964) WAR 33. This case concerned an appeal from the decision of a Justice of the Peace under the Justices Act to grant a search warrant. It was held by the Court that this decision was an "other determination" for the purposes of the meaning of "decision" in the Justices Act. It was said that this case provides support for the appellant's contention because it is an example of a determination that directly affected or interfered with the rights of a party to the proceedings. I am not persuaded that TVW assists the appellant in the way contended. Reliance on TVW does not address the fundamental point made in Anderson, that properly construed, it is the final determination of an application made under s 83(1), that constitutes a "decision" for the purposes of s 84(1) of the Act.

83      On the other hand, the respondent submitted that the focus of Olney J's reasons in Anderson included not just the terms of s 83 of the Act as it was at that time, but rather also, focused on the effect of any order, as being a final determination of the application. The respondent also noted the observations of Rowland J, referring to the more limited functions and powers of the Industrial Magistrate's Court and the fact that s 84(1) was retained in the same terms, despite the amendment to the Act to insert the expanded scope for an appeal to the Full Bench from a decision of the Commission that is a "finding", as defined in s 7.

84      The respondent in its submissions, also referred to the amendments to s 83 effected by the Labour Relations Reform Act 2002 (WA), which repealed and replaced s 83 and introduced new provisions in ss 83A to 83C. Despite these amendments, the respondent noted that s 84, in relation to appeals to the Full Bench from the Industrial Magistrates Court, remained largely unchanged. In further support of its submissions, the respondent referred to the terms of s 83(7) itself, which empowers an Industrial Magistrate to make an interim order under s 83(5) "pending final determination of an application under subsection (1)". It was submitted that Parliament, in introducing this provision, should be regarded as having adopted the language used by Olney J in Anderson, referred to above.  The respondent in its further written submissions, reiterated the oral submissions it made at the hearing of the appeal. Also, the respondent focussed on the language of the orders made by the learned Industrial Magistrate, particularly those parts of the orders that supported their legal effect as interim in nature and not a final determination of the matters before the court.

85      It is not without some oscillation that I consider the approach of the respondent to this matter should be preferred to that of the appellant. I do not think the amendments to s 83 of the Act to introduce subsections (5) and (7), has fundamentally altered the principle stated by the Court in Anderson. I consider that an appeal to the Full Bench under s 84(2), lies from an order or determination of an Industrial Magistrate which finally determines the application brought to the Industrial Magistrates Court under s 83(1). Whilst it is the case that the interim orders have the effect of reinstating the respondent's member, it does not finally determine the issue as to whether, if there is found ultimately to have been a contravention of cl 23.1 of the Agreement, final relief of the kind claimed by the respondent at first instance could or should be made.

86      Furthermore, I think there is something to be said for the fact that the language of s 83(7) of the Act, when read in its ordinary sense, emphasises the nature of an interim order and that such an order can only be made "pending the final determination" by an Industrial Magistrate of a substantive application brought under s 83(1) of the Act. This is consistent with the tenor of the reasons of the Court in Anderson. If it was intended by Parliament that amendments to the Act given effect by the Labour Relations Reform Act were to be accompanied by an expanded right of appeal to the Full Bench, then, given the conclusions of the Court in Anderson, one would have thought, consistent with the approach taken to appeals from decisions of the Commission in relation to "findings" as defined in s 7, that an appropriate amendment to s 84(1) of the Act would have also been made at the same time, to make this clear. 

87      Additionally, consistent with the circumstances dealt with in Anderson, the functions and powers of the Industrial Magistrates Court remain, respectfully, within a relatively narrow compass in relation to the enforcement of industrial instruments as defined in s 83(2) of the Act. The powers of the Industrial Magistrates Court, on the hearing of an application to enforce an industrial instrument, in s 83(4) of the Act, to issue a caution or to impose a penalty, remain largely the same as those in existence when Anderson was decided. The additional powers conferred by ss 83(5) and (7) are in aid of the jurisdiction to enforce industrial instruments and do not confer powers on an Industrial Magistrate to enquire into and determine industrial disputes generally, which is the role of the Commission under Parts II and IIA of the Act.    

88      Accordingly, I am of the view that the appeal is incompetent and it must be dismissed.

The appeal

89      If I am incorrect in reaching the view that the appeal is incompetent, then for the reasons expressed by Smith AP, which I have had the benefit of reading in draft form and with which I am in general agreement, the interim orders made by the learned Industrial Magistrate were beyond the powers conferred on the court under ss 83(5) and (7) of the Act.  

MATTHEWS C:

90      Clause 23 of the Western Australian TAFE Lecturers' General Agreement 2014 provides as follows:

23. BREACHES OF DISCIPLINE

23.1 No employee shall be subject to the penalties of sub-clause 23.2 of this clause unless a fair procedure is applied and decision and processes incorporate the principles of natural justice and are free from bias.

23.2 If, in accordance with the College's disciplinary policy, an employee is found by the College to have committed a breach of discipline, the College may:

(a) reprimand the employee;

(b) transfer the employee to another public sector agency, with the consent of that agency or transfer the employee to another position at the College at which the employee is currently employed;

(c) impose on the employee a fine not exceeding the equivalent of five (5) days pay that the employee would have received immediately prior to the breach of discipline finding;

(d) reduce the monetary remuneration of that employee;

(e) reduce the level of classification of the employee;

(f) dismiss the employee; or

(g) except where the employee is dismissed under sub-clause 23.2 (f) of this clause, take action under any two or more of the above sub-clauses.

23.3 Other than in the case of termination in accordance with sub-clause 23.2 (f) of this clause, which is subject to other provisions under the Industrial Relations Act 1979, an employee aggrieved by a decision resulting from the disciplinary process may appeal against that decision by referring the matter to the Commission for determination.

91      The respondent to this appeal argued before the industrial magistrate that clause 23.1 of the agreement was an enforceable obligation as against the appellant to the appeal.

92      In circumstances where the respondent's member had been dismissed from his employment, the respondent said in contravention of clause 23.1 of the agreement, the respondent argued that, pursuant to section 83(7) Industrial Relations Act 1979, its member could and should be reinstated to it until the application for relief from the appellant's contravention of clause 23.1 of the agreement could be dealt with.

93      The industrial magistrate made an order under section 83(7) Industrial Relations Act 1979 accepting that:

(a) clause 23.1 imposed an enforceable obligation on the appellant;

(b) there was a serious question to be tried as to whether the appellant had breached clause 23.1 of the agreement in dismissing the respondent's member; and

(c)          the balance of convenience favoured the making of such an order.

94      The appellant appeals that order seeking that the appeal be upheld and the interim order quashed.

95      The respondent says the appeal is incompetent because the industrial magistrate's order did not finally determine the substantive application and cited authorities to the effect that the Industrial Relations Act 1979 does not allow appeals from such orders, being Anderson and Ors v Pope and Ors (1986) 66 WAIG 1563 and cases which have applied it (set out helpfully in G & R Rossen Pty Ltd v Peta Buchanan 2018 WAIRC 334, a decision which itself followed Anderson and Ors v Pope and Ors (1986) 66 WAIG 1563).

96      It may be noted that Anderson and Ors v Pope and Ors (1986) 66 WAIG 1563 did not deal with a similar circumstance to that in this appeal as at the time of that decision there was no provision for the industrial magistrate to make interim orders under section 83, that provision only being inserted in 2002.  The case is not, therefore, directly on point.

97      The key to the reasoning in Anderson and Ors v Pope and Ors (1986) 66 WAIG 1563, for mine, appears in the following from Olney J at 1565:

"When one has regard to the role of the Industrial Magistrate to hear and determine applications under section 83(1) and the limited nature of the functions that may be performed by him I think that there is every reason to believe that the definition [of "decision"] in section 84(1) was intended to refer only to the exercise of the particular powers referred to in the preceding section."

98      As I say, there has been, since 2002, a power for the industrial magistrate to make interim orders.

99      The making of an interim order is now one of the functions an industrial magistrate may perform under section 83 Industrial Relations Act 1979. 

100   Although such a function was not provided for at the time of the decision in Anderson and Ors v Pope and Ors (1986) 66 WAIG 1563 there is, in my view, no reason why the reasoning of Olney J as set out above would not apply to particular powers that are, at any time, referred to in "the preceding section", being section 83.

101   Anderson and Ors v Pope and Ors (1986) 66 WAIG 1563 has come to be understood as allowing appeals only from "final determinations of the substantive application".  In my view, this is because the industrial magistrate could only, at that time, make what might be described as a final determination of the "substantive" application. 

102   Olney J actually used the words that rulings "in the course of proceedings which fall short of a final determination of the application" (my emphasis) were not appellable.  At that time the use of the singular reflected that there was only one type of application that could be made under section 83, being an application for the enforcement of an award or industrial agreement.

103   There is now, and has been since 2002, another application that may be made under section 83, namely an application for an interim order.

104   Parliament must have known when it gave the power to a party to apply for an interim order in 2002 that section 84(1) allowed appeals from applications heard and determined under section 83, as this was what had been decided by Anderson and Ors v Pope and Ors (1986) 66 WAIG 1563.

105   I consider that had Parliament wished to provide that orders made under section 83(7) were not amenable to appeal it would have so provided.

106   The words in section 84(1) "penalty, order, order of dismissal, and any other determination" are extremely broad and I see no reason to limit them beyond requiring that they relate to the exercise of a power under section 83. 

107   The application for interim orders in this case was an application for the exercise of a power under section 83.  It was commenced by a separate application, there was a discrete hearing on the matter, with evidence being admitted on that matter alone, and a decision given, and orders made, on the application.

108   In circumstances where an application for the exercise of a power expressly provided for by section 83 was made and section 84(1) is understood as referring to the exercise of a power under section 83, then orders made on such an application must be appellable.

109   I find that the appeal is competent.

110   I would have upheld the appeal on the basis that the industrial magistrate had no power to make the orders he made and, in that regard, I agree with Acting President Smith's reasoning on this point and have nothing to add to it. 

111   In my case, given that I find the appeal to be competent, adoption of those reasons would have decided the appeal in favour of the appellant.

112   I add that even if the industrial magistrate did have power to make the orders I respectfully consider that his Honour erred in making them for the following reasons:

(a) there was no serious issue to be tried; and

(b) in any event, the balance of convenience did not favour making them.

113   In interpreting clause 23.1 of the agreement I consider it determinative that the subclause does not expressly impose an obligation on anyone.

114   The subclause simply recites, inelegantly given that freedom from bias is a central tenet of natural justice and not one requiring separate expression, what is well known.

115   I note also that what will be required to accord natural justice is not a fixed concept and that it will vary from case to case.  That is, there is no precision involved in saying that a person "shall be accorded natural justice."

116   The reasonable reader, being aware of the surrounding circumstances, which in this case would include the possibility of enforcement action and the imposition of penalties for breach, would, in my view, quickly note that the subclause does not say that "the employer must accord an employee natural justice" or use a similar formulation of words.

117   It may seem like a cute point given that it is only the employer who may impose the penalties under clause 23.1, but the surrounding circumstances must be understood.  If the parties wished an enforceable obligation upon the employer to arise out of clause 23.1 it would have been a simple matter to agree language which reflected that.  They did not.  The parties agreed upon passive language rather than language which imposed a strict and enforceable obligation on any party.

118   I have had regard to the analysis of Jessup J of the clause under consideration in National Tertiary Education Union v Le Trobe University (2015) 254 IR 238 at [31] and [32].

119   While noting that his Honour was in the minority on the point I consider that much of what his Honour said there, with which I agree, may be applied to clause 23.1 of the agreement.

120   I consider that clause 23.1 contains a "very high-level statement of intent, concerned with making clear the importance which the parties placed on [fairness in disciplinary proceedings]" and "objectively, that the parties might have intended that the imprecise evaluations and qualitative judgments conveyed by these words should be the source of binding obligations ultimately justiciable in a proceeding [for enforcement] strikes me as a very unlikely circumstance."

121   Where the subclause appears in a clause which on its face reminds the reader, or advertises to the reader, the ways in which relief is available in the Western Australian Industrial Relations Commission (or perhaps creates an avenue of relief; see Nabeel Ashraf v Ms Michelle Hoad Managing Director North Metropolitan TAFE 2018 WAIRC 00699) I consider the proposition that clause 23.1 intended to create a binding obligation ultimately justiciable in enforcement proceedings before the industrial magistrate to be a very unlikely one.

122   I am of the view that clause 23.1 could not possibly be an enforceable obligation against the appellant and that, accordingly, there was no serious issue to be tried.

123   In relation to the balance of convenience, I note that the industrial magistrate's first instinct was to wonder out loud whether the entire matter before him belonged elsewhere, which I take to be a reference to unfair dismissal proceedings in the Western Australian Industrial Relations Commission.

124   In my view, the matter clearly properly belonged in the Western Australian Industrial Relations Commission, as indeed clause 23.3 of the agreement reminds the reader of the clause.  In the exercise of his Honour's discretion the industrial magistrate should have, in my respectful view, declined to deal with the matter, especially by way of interim orders for reinstatement, given that Parliament has established a robust and effective regime for dealing with such matters, including a specific power of reinstatement of dismissed employees, within the Western Australian Industrial Relations Commission.

Conclusion

125   As the majority view of the Full Bench (Smith AP and Kenner SC) is that the appeal is incompetent, an order will be made to dismiss the appeal.

126   In light of the observations made by Smith AP in respect of the power of the Industrial Magistrate's Court to make an interim order in this matter, we are of the opinion that it would be open to the appellant to exercise the right conferred in order 7 of the interim order to apply to the Industrial Magistrate's Court for an order to revoke orders 1 to 5 of the interim order, on grounds orders 1 to 5 are beyond the power conferred by s 83(5) and s 83(7) of the IR Act on the Industrial Magistrate's Court to make.

127   The Full Bench is not of the opinion that it should make an order that the appellant pay the respondent's costs of the appeal, as it is not satisfied that the appeal has been frivolously or vexatiously instituted by the appellant.  Clearly, the points put by the appellant in its grounds of appeal could not be characterised as having no reasonable basis.  Nor could it be found that the appeal was instituted purely to cause trouble or annoyance to the respondent.  In forming this opinion, the Full Bench has had regard to recent observations made about the test to be satisfied for an award of costs to be made under s 84(5) of the IR Act in G&R Rossen Pty Ltd v Buchanan [2018] WAIRC 00334; (2018) 98 WAIG 305 (see particularly the observations of Buss J in The Commissioner of Police of Western Australia v AM [2010] WASCA 163(S); (2011) 91 WAIG 6 [25] - [30]).