APPEAL AGAINST A DECISION OF THE COMMISSION IN MATTER NUMBER U 27/2020 GIVEN ON 26 AUGUST 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2022 WAIRC 00077

DELIVERED : MONDAY, 21 FEBRUARY 2022

FILE NO. : FBA 5 OF 2021

Appellant

AND

Natasha Stephenson

Respondent

ON APPEAL FROM:

Jurisdiction : The Western Australian Industrial Relations Commission

Coram : Commissioner T B Walkington

Citation : 2021 WAIRC 00479

File No : U 27 OF 2020

Catchwords : Industrial Law (WA) – Speaking to the minutes – Relevant principles – Not for the purpose of re-arguing a case or adducing evidence – Principles applied – Order issued

Legislation : Industrial Relations Act 1979 (WA) s 35 

Result : Order issued

Representation

Appellant : In person

Respondent : No appearance

Case(s) referred to in reasons:

CSA v Public Service Commissioner (1937) 17 WAIG 22

Sheahan v State School Teachers Union of WA (Inc) (1989) 69 WAIG 2966

Reasons for Decision

THE FULL BENCH:

1         The reasons for decision and minutes of proposed order of the Full Bench in the above appeal were handed down on 8 February 2022.  The Full Bench upheld the appeal in part and the minutes of proposed order varied the decision of the Commission at first instance by varying the sum of compensation ordered.

2         Subsequent to the handing down of the reasons for decision and minutes of proposed order, the appellant sought a speaking to the minutes.  The appellant filed a detailed document “Appellant’s Outline ‑ Speaking to the Minutes” in connection with his request.  The appellant was informed by letter on behalf of the Full Bench, that his written submissions would be taken into account by the Full Bench as a part of the speaking to the minutes.  However, the Full Bench advised that it had formed the preliminary view that the content of the appellant’s written submissions raised matters not permitted to be raised at a speaking to the minutes.  Subsequently, the appellant requested to be heard orally in relation to his written submissions and the Full Bench listed the matter for hearing for that purpose.  The appellant was provided with a copy of the decision of the Commission in Sheahan v State School Teachers Union of WA (Inc) (1989) 69 WAIG 2966, to assist him in confining his submissions to matters properly the scope of matters permissible to be raised in a speaking to the minutes.

3         As was advised to the appellant, a speaking to the minutes under s 35 of the Industrial Relations Act 1979 (WA) is for a very limited purpose.  It is for the purpose of ensuring that the proposed order of the Commission is workable and consistent with the Commission’s reasons and contains no provisions which have been inserted inadvertently or by mistake: Sheahan.  A speaking to the minutes is not for the purposes of a party re‑arguing its case or to seek to admit fresh evidence: CSA v Public Service Commissioner (1937) 17 WAIG 22.  As was said by Sharkey P in Sheahan at 2966:

The parties should, therefore, when speaking to the minutes, confine their attention to alterations which will have the effect of making the award, order or declaration more workable, rather than to alter its substance.  [per Burnside J. in the Printing Trades Award (1925) 4 WAIG 150] [see also Operative Plasterers and Plaster Workers Federation v. CMEWU 69 WAIG 1920].

4         The appellant’s written submissions canvassed a range of issues, which plainly constituted an impermissible attempt to re‑argue his case and to raise extraneous and irrelevant matters.

5         The appellant was informed at the commencement of the hearing, as previously indicated provisionally, that the Full Bench did not consider his written submissions raised matters permissible to be raised at a speaking to the minutes, consistent with the above authorities.  This was except, possibly, in relation to the issue of the grant by the learned Commissioner of compensation to the respondent for two weeks’ pay in lieu of notice.  Accordingly, the appellant was invited to and did confine his submissions to this issue.  It was submitted by the appellant that the conclusion of the Full Bench in relation to his second ground of appeal, that the Animal Welfare Industry Award did not apply to the respondent’s employment, meant that the decision of the learned Commissioner at first instance to award two weeks’ pay in lieu of notice was erroneous.  It was therefore contended that the Full Bench should also have quashed the decision of the Commission at first instance to order the respondent receive two weeks’ pay in lieu of notice, for this reason.  We also note that after the speaking to the minutes hearing, the appellant sent to the Associate to the Full Bench, a further, unsolicited submission, in relation to the matters raised by him.  Whilst we are not obliged to do so, we have had regard to those written submissions.  The further submissions largely repeat the assertions made in the original written and oral submissions at the speaking to the minutes hearing and additionally, sought to reargue his case, not put at first instance, in relation to the payment in lieu of notice issue.

6         It important to note a number of things in relation to the appellant’s submissions.  Firstly, the appellant in his notice of appeal, as summarised by the Full Bench at [7] ‑ [9] of its reasons for decision, did not challenge the finding of the learned Commissioner at first instance that the respondent should be awarded two weeks’ pay in lieu of notice.  Whilst the appellant did challenge the Commission’s conclusion that the Award applied to the respondent’s employment, and that challenge was upheld by the Full Bench on the appeal, the entitlement of an employee to notice of termination of employment, is not dependent on an employee’s employment being covered by an award of the Commission.

7         Secondly, whilst the appellant maintained in his submissions that the respondent was engaged and paid as a casual employee and therefore would not be entitled to notice of termination of employment in any event, it was admitted by the appellant at first instance that the respondent’s working hours and arrangements changed over time and as found by the learned Commissioner at first instance, the respondent worked approximately 38.5 hours per week in the latter part of her employment consistently and regularly in accordance with a roster prepared in advance.  There was no finding by the learned Commissioner that as at the date of her dismissal, the respondent was employed as a casual employee.

8         Whilst not necessary for the purposes of a speaking to the minutes, the above reasons are responsive to the matters raised by the appellant in his submissions.  The Full Bench is of the view that the minutes of proposed order issued on 8 February 2022 are consistent with the reasons for decision of the Full Bench.  This is particularly since no appeal ground was advanced by the appellant against the conclusion of the Commission at first instance, that the respondent be paid two weeks’ pay in lieu of notice.  To alter the order in the manner proposed by the appellant, would be to alter its substance, contrary to the authorities referred to above.

9         Accordingly, the order now issues.