2023 WAIRC 00152

[2023] WASCA 43
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION : BYERS -v- DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE [2023] WASCA 43

CORAM : BUSS J
MURPHY J
SMITH J

HEARD : 23 FEBRUARY 2023

DELIVERED : 23 FEBRUARY 2023

PUBLISHED : 15 MARCH 2023

FILE NO/S : IAC 2 of 2022

BETWEEN : ALEXANDER BYERS
Appellant

AND

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE
Respondent



ON APPEAL FROM:

Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : S J KENNER, CHIEF COMMISSIONER
R COSENTINO, SENIOR COMMISSIONER
T EMMANUEL, COMMISSIONER
Citation : 2022 WAIRC 00188
File Number : APPL 25 OF 2021



Catchwords:

Industrial Appeal Court - Whether Court has jurisdiction to hear appeal from a decision of the Western Australian Industrial Relations Commission dismissing an appeal heard pursuant to div 3 of pt X of the Prisons Act 1981 (WA) - Court only has jurisdiction to hear an appeal if the Commission has made a decision of the Commission under s 110E of the Prisons Act - A decision to dismiss not a decision under s 110E of the Prisons Act

Industrial Law - A decision of the Commission under the Prisons Act within the meaning of s 90 of the Industrial Relations Act 1979 (WA) is not the reasons given for decision - Reasons given by a minority member of the Commission do not constitute a decision for the purposes of an appeal to the Court under s 90 of the Industrial Relations Act

Legislation:

Industrial Relations Act 1979 (WA)
Police Act 1892 (WA)
Prisons Act 1981 (WA)

Result:

Appeal dismissed for want of jurisdiction

Category: B

Representation:

Counsel:

Appellant
:
In Person
Respondent
:
Mr A J Sefton SC & Mr J Carroll

Solicitors:

Appellant
:
In Person
Respondent
:
State Solicitor's Office


Cases referred to in decision:


Gordon v Commissioner of Police [2011] WASCA 168; (2011) 210 IR 448
Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186
McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000
Moran v The Commissioner of Police [2015] WASCA 245
Polizzi v Commissioner of Police [2015] WASCA 46
Registrar v Metals and Engineering Workers' Union of Western Australia (1993) 74 WAIG 1487
Wall v Commissioner of Police [2012] WASCA 170




Page 1
[2023] WASCA 43
REASONS OF THE COURT
REASONS OF THE COURT:
1.0 Overview
1 The appellant seeks to appeal a decision of the Western Australian Industrial Relations Commission (Commission) constituted under div 3 of pt X of the Prisons Act 1981 (WA). After hearing from the appellant, this Court (Court) determined that it did not need to hear from senior counsel for the respondent. That was because, as will be seen below, this Court has no jurisdiction to hear the appeal under s 90 of the Industrial Relations Act 1979 (WA).
2 At the conclusion of the hearing, the Court made an order dismissing the appeal for want of jurisdiction. The Court stated that reasons for this order would follow. These are our reasons for this order.
2.0 Introduction
3 The appellant was formerly a prison officer engaged under s 13(2) of the Prisons Act. He commenced his employment with the respondent in April 2000 and was removed in July 2021 by the respondent due to loss of confidence in his suitability to continue as a prison officer under div 3 of pt X of the Prisons Act. The appellant's removal arose after he returned a positive test result for cannabis, arising from a random drug test at Hakea Prison on 11 August 2020.
4 The appellant appealed to the Commission pursuant to s 106(1) of the Prisons Act, which provides a right of appeal to a prison officer removed as a result of removal action on the ground that the removal decision was harsh, oppressive or unfair.
5 Section 106(4) requires that for the purposes of proceedings relating to the appeal, the Commission is to be constituted by not less than three industrial commissioners, at least one of whom must be the Chief Commissioner or the Senior Commissioner.
6 On 6 May 2022, the Commission made an order dismissing the appeal, and delivered their reasons for decision. The decision to dismiss the appeal was made by a majority of the members of the Commission, Chief Commissioner Kenner and Commissioner Emmanuel. Senior Commissioner Cosentino delivered separate reasons in which she found that the removal decision was unfair, and she stated she would have ordered (pursuant to s 110E(2)(a) of the Prisons Act) that the removal decision is to be taken to have always been of no effect.
7 The appellant now appeals to this Court on the ground that the majority of the Commission erred in law:
(a) in deciding that the true meaning of reg 38(2) of the Prisons (Prison Officers Drug and Alcohol Testing) Regulations 2016 (WA) had the effect of requiring the respondent to take removal action; and
(b) by concluding s 107(1)(a) of the Prisons Act does not require the Commission to consider all of the reasons for the removal decision.
8 After the appeal to this Court was filed, the respondent filed a notice of motion seeking an order that the appeal be dismissed for want of jurisdiction on the basis that this Court does not have jurisdiction to hear an appeal from a decision of the Commission under s 110B of the Prisons Act read with s 90 of the Industrial Relations Act on the ground that the majority of the Commission erred in deciding that the removal decision was not harsh, oppressive or unfair.
3.0 Jurisdiction of the Industrial Appeal Court to hear an appeal from a decision of the Commission under s 110E of the Prisons Act
9 The respondent submits that the appeal is incompetent, because the right of appeal to this Court from a decision of the Commission is confined to a decision by the Commission that a decision to take removal action relating to the appellant was harsh, oppressive or unfair, and there is no right of appeal against a decision of the Commission dismissing an appeal heard pursuant to div 3 of pt X of the Prisons Act.
10 The right of a prison officer who has been removed to appeal to the Commission or to this Court is exclusively conferred by div 3 of pt X of the Prisons Act.
11 Section 110B of the Prisons Act provides that the provisions of the Industrial Relations Act listed in the Table apply to, and in relation to, an appeal and its determination, subject to any specific modifications set out in the Table, and all other necessary modifications. The Table consists of two columns. The first column lists provisions of the Industrial Relations Act, and the second column sets out any specific modifications to those provisions. The provisions of the Industrial Relations Act listed in the Table include s 90.
12 The modifications prescribed in the Table to s 90 of the Industrial Relations Act, require s 90(1) to be read as follows:
90. Appeal from Commission to Court
(1) Subject to this section, an appeal lies to the Court in the manner prescribed from a decision of the Commission under the Prisons Act 1981 section 110E—
(a) on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter; or
(b) on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c) on the ground that the appellant has been denied the right to be heard,
but upon no other ground. (modifications shown in italics)
13 Consequently, the Court only has jurisdiction to hear an appeal if the Commission has made a 'decision' under s 110E of the Prisons Act.
14 Section 110E provides:
110E. Decision by WAIRC
(1) This section applies if the WAIRC decides on an appeal that the decision to take removal action relating to the appellant was harsh, oppressive or unfair.
(2) The WAIRC may —
(a) order that the appellant’s removal is, and is to be taken to have always been, of no effect; or
(b) if it is impracticable to make an order under paragraph (a), order the chief executive officer to pay the appellant an amount of compensation for loss or injury caused by the removal.
(3) In considering whether or not it is impracticable to make an order under subsection (2)(a), it is relevant to consider —
(a) whether, at the time of the appellant’s removal, the position occupied by the appellant is vacant; and
(b) whether there is another suitable vacant position in the Department.
(4) If the WAIRC makes an order under subsection (2)(a), the appellant is not entitled to be paid his or her remuneration as a prison officer for any period the appellant received a maintenance payment.
(5) An order under this section may require that it be complied with within a specified time
15 Thus, it is clear an appeal only lies to this Court where there is a 'decision' of the Commission that the removal decision was harsh, oppressive or unfair.
16 The respondent points out that the removal provisions of the Prisons Act in div 3 of pt X are substantially the same scheme that enables a police officer to appeal against a decision of the Police Commissioner to remove the officer on grounds of loss of confidence under pt IIB of the Police Act 1892 (WA). It has been held in a series of cases that on the proper construction of s 90(1) as modified by s 33S of the Police Act, a member of the Western Australian Police Service has no right of appeal to this Court from a decision of the Commission in which the Commission has dismissed the appeal on the ground that an officer's removal was not harsh, oppressive or unfair. Gordon v Commissioner of Police [2011] WASCA 168; (2011) 210 IR 448; Wall v Commissioner of Police [2012] WASCA 170, Polizzi v Commissioner of Police [2015] WASCA 46 and Moran v The Commissioner of Police [2015] WASCA 245.

17 The appellant contends that in the circumstances of this case where one of the members of the Commission who heard the appeal against the decision of the respondent to remove has decided that the decision to take removal action relating to the appellant was harsh, oppressive or unfair, s 110E is enlivened, which in turn enlivens the jurisdiction of the Court to hear an appeal under s 90 of the Industrial Relations Act.
18 The effect of the appellant's submission is that a 'decision' of the Commission within the meaning of s 110E, when read with s 90 of the Industrial Relations Act, as modified, contemplates that an appeal will lie against a decision of only one of the members of the three Commissioners who are required by s 106(4) to constitute the Commission for the purposes of proceedings relating to the appeal before the Commission.
19 However, no appeal can lie against 'reasons for decision' of the Commission or a member of the Commission given in any proceeding.
20 For the reasons that follow, the construction of the meaning of a 'decision of the Commission under the Prisons Act section 110E' within the meaning of s 90 of the Industrial Relations Act as modified, is that a 'decision' is not the reasons given for a decision. Rather, a 'decision' is the order that disposes of the appeal to the Commission from the removal decision of the respondent. In this matter, when this reasoning is applied, it necessarily follows that the reasons given by the Senior Commissioner are not a 'decision' under or for the purposes of s 110E of the Prisons Act.
21 It is well established that the Commission and the Court are creatures of the statute, and their jurisdiction is limited. See Landsheer v Morris Corporation (WA) Pty Ltd [2014] WASCA 186 [45]  [55] (Kenneth Martin J), [32] (Le Miere J agreed).

22 Sections 34, 35 and 36 of the Industrial Relations Act when read together, define the contents of a 'decision' of the Commission and the manner by which a decision is perfected and becomes binding. See the discussion in McCorry v Como Investments Pty Ltd (1989) 69 WAIG 1000 and Registrar v Metals and Engineering Workers' Union of Western Australia (1993) 74 WAIG 1487.

23 Sections 34, 35 and 36 of the Industrial Relations Act are listed in the Table in s 110B of the Prisons Act as provisions that apply to, and in relation to, an appeal and its determination. Sections 35 and 36 are applied unmodified.
24 The only modifications made to s 34 of the Industrial Relations Act by s 110B of the Prisons Act are to delete references to a 'decision in the form of an award or declaration' in s 34(1) and to delete references to a 'declaration and award' and add the word 'decision' in s 34(4).
25 Consequently, s 34 of the Industrial Relations Act as modified is to be read as follows:
34. Decisions of Commission, form of and review of
(1) The decision of the Commission must be made in the form of an order and must be signed and dated at the time it is made —
(a) in the case of a decision made by the Commission constituted by a single commissioner — by the commissioner; or
(b) in the case of a decision of the Commission in Court Session — by the most senior commissioner of the commissioners who constitute the Commission in Court Session; or
(c) in the case of a decision by the Full Bench or its presiding commissioner — by the presiding commissioner of the Full Bench.
(1A) A decision of the Commission must be sealed with the seal of the Commission.
(2) When the commissioners who constitute the Commission in Court Session are divided in opinion on a question, the question must be decided according to the decision of the majority of the commissioners.
(3) Proceedings before the Commission cannot be impeached or held bad for want of form nor can they be removable to any court by certiorari or otherwise —
(a) on any ground relating to jurisdiction; or
(b) on any other ground.
(4) Except as provided by this Act, no decision, order, finding, or proceeding of the Commission is liable to be challenged, appealed against, reviewed, quashed, or called in question by or in any court —
(a) on any ground relating to jurisdiction; or
(b) on any other ground. (modifications shown in italics)
26 In this matter, it is clear that the order dismissing the appeal was sealed by the Commission, as required by s 34(1A). The order made by the Commission disposing of the appeal states on the face of the order that the quorum was the Chief Commissioner, the Senior Commissioner and Commissioner Emmanuel, and order 2 of the orders states that 'the appeal be and is hereby dismissed'. The copy of the order in the appeal book bears the electronic seal and signature of the Chief Commissioner for and on behalf of the Commission.

27 Section 35 of the Industrial Relations Act requires a decision to be first drawn up as minutes (before it is perfected). Pursuant to s 35(1) a decision must be handed down to the parties concerned, and unless in any particular case the Commission otherwise determines, its reasons for decision must be published at the same time. In addition, s 35(3) entitles the parties concerned to speak to the matters contained in the minutes of the decision and the Commission may, after hearing the parties, vary the terms of those minutes before the final decision is made in terms of the minutes.
28 Section 36 of the Industrial Relations Act requires a copy of the decision to be given to the parties, lodged in the office of the Registrar and be open to inspection without charge during office hours by any person interested.
29 There is nothing before the Court to suggest the procedure prescribed in ss 35 and 36 was not complied with prior to the Chief Commissioner affixing a seal on the order.
30 Section 35(1) of the Industrial Relations Act distinguishes a decision from reasons for decision. It requires that, unless the Commission otherwise determines, the minutes of a final decision be delivered at the same time as the Commission publishes reasons for decision.
31 Section 34(2) of the Industrial Relations Act provides that where commissioners who constitute the Commission in Court Session are divided in opinion on a question, the question must be decided according to the decision of the majority. Section 7(1) defines the 'Commission in Court Session' to mean the Commission constituted as provided by s 15(2). Section 15(2) provides that the Commission in Court Session must be constituted by not less than three commissioners sitting or acting together.
32 It appears that s 34(2) of the Industrial Relations Act is capable of application because the three commissioners who are required to constitute an appeal under s 106 of the Prisons Act (one of which is to include either the Chief Commissioner or the Senior Commissioner) could be said to sit as a Commission in Court Session as defined in s 15(2) of the Industrial Relations Act, by the statutory command in s 110B that s 34 applies to and in relation to an appeal and its determination subject to, relevantly, all other necessary modifications. If s 34(2) is applied, there is no scope for the appellant's construction of s 110E(1) of the Prisons Act. This is because the 'decision' of the Commission within the meaning of s 90(1) of the Industrial Relations Act, as modified, in this matter is the decision as set out in the order dismissing the appeal against the respondent's removal decision. This order accurately reflects the reasons of and decision of the majority.
33 The reasons for decision of the Senior Commissioner are simply reasons and do not constitute a decision within the meaning of s 35 or s 90(1), as modified, of the Industrial Relations Act. Absent a decision that reflects the Senior Commissioner's reasons, the appellant's right of an appeal to this Court is not enlivened.
34 In any event, s 90(1), as modified, confers jurisdiction on the Court to hear and determine an appeal 'from a decision of the Commission'. Even if it could be found that the Senior Commissioner made a decision within the meaning of s 90(1), as modified, the appellant does not seek to appeal 'from' that decision. Rather, the appellant's grounds seek only to appeal against the decision of the majority of the Commission, in respect of which no appeal lies to this Court.


I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.

SO
Associate to the Judge

15 MARCH 2023