Appeal against a decision of the Industrial Magistrate in matter number M 170/2021 given on 22 March 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2023 WAIRC 00793

DELIVERED : THURSday, 5 OCTOBER 2023

FILE NO. : FBA 1 OF 2023

Appellant

AND

Director General as the Employing Authority, Department of Justice

Respondent

CatchWords : Industrial Law (WA) – Appeal against a decision of the Industrial Magistrate – Interlocutory application seeking permission to amend grounds of appeal – Substitution of new grounds of appeal – Respondent opposes leave being granted – Factors to consider – Notice of appeal to ‘clearly and concisely set out the grounds of appeal and what alternative decision the appellant seeks’ – Grounds must specify particulars relied on to demonstrate that it is against the evidence and the weight of evidence and specific reasons of what is alleged to be wrong in law – Timing – Reasons for amendments – Do the amended grounds of appeal reveal a reasonably arguable ground of appeal? – Consequences to the appellant if the amendments are not allowed — Prejudice to the respondent – Leave granted to amend grounds of appeal

Legislation : Industrial Relations Commission Regulations 2005 (WA) 

Result : Application granted

Representation:

Counsel:

Appellant : Ms D Larson of counsel and Ms J Moore of counsel

Respondent : Mr J Carroll of counsel

Solicitors:

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Anderson v Rogers Seller & Myhill Pty Ltd [2007] WAIRC 00218; (2007) 87 WAIG 289

Bilos v Aurion Gold [2003] WAIRC 09858; (2004) 84 WAIG 1008

Gold Valley Iron Pty Ltd (in liq) v Ops Screening & Crushing Equipment Pty Ltd [2022] WASCA 134

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Reasons for Decision

FULL BENCH:

1         The appellant, The Civil Service Association of Western Australia Incorporated (CSA), has appealed from a decision of the Industrial Magistrate’s Court (IMC) handed down on 22 March 2023 dismissing the CSA’s claim that the respondent, the Director General Department of Justice, had breached clauses 36A(4), (5) and (6) of the Public Service Award 1992.

2         The appellant is seeking permission to amend its grounds of appeal, by substitution of three new grounds of appeal for the original four grounds.

3         The respondent opposes leave being granted to amend, because:

(a) the grounds advance matters that were not advanced by the CSA at trial;

(b) the grounds are not sufficiently particularised; and

(c) the grounds, even if established, cannot result in a successful appeal.

The CSA’s claim before the IMC

4         The claim before the IMC arose out of broad facts which were relatively uncontroversial.

5         Clause 36A of the Award relevantly provides:

Officer Entitlement to Representation

(1) For the purposes of representation under this clause, significant matters are discipline, performance, officer entitlements, fitness for work and return to work.

…

(4) If:

(a) a representative nominated by an officer, being an organisation within the meaning of the Industrial Relations Act 1979 (the Act), an employee or officer of such an organisation, a union representative within the meaning of clause 36(2) of this Award, a person registered under section 112A of the Act, an employee or officer of such a person, or a legal practitioner, or

(b) an officer,

notifies the employer in writing that a representative acts for the officer in relation to a matter and provides the identity and contact details of the representative, the employer must recognise that person’s representational capacity in all future dealings on that matter.

(5) The presence of a representative is not necessary at every meeting between an officer and the employer (or a representative of the employer). Where the meeting involves a significant matter the representative shall be permitted to attend. All parties will make reasonable efforts to avoid unnecessary delays.

(6) The employer accepts a representative can advocate on behalf of the officer at the meeting. For the purposes of this clause only, an advocate may make comments on the process, ask questions, seek clarification of questions put to the officer, seek adjournments to confer with the officer and provide further comments at the conclusion of the interview, but will not answer questions of fact put to the officer.

6         Two of the Director General’s employees appointed the CSA to represent them in the course of a process dealing with allegations that those employees had committed a breach of discipline.

7         The breach of discipline matters were ‘significant matters’ for the purpose of cl 36A(1) and therefore attracted the application of cl 36A.

8         The CSA informed the Director General in writing that it represented the employees.

9         The Director General proceeded to conduct meetings with each of the employees for the purpose of delivering to them a letter of outcome relating to the allegations of breach of discipline. Those meetings were arranged by sending an electronic meeting invitation on 21 January 2021 to the employees, for a meeting with Professional Standards on 22 January 2021 to advise of the outcome of the disciplinary process.

10      The Director General advised the employees in writing that they were entitled to bring a support person or union representative to the meeting. However, the communications scheduling the meetings were not sent directly to the CSA or any of the CSA’s officers or employees when they were sent to the employees.

11      The employees contacted the CSA after receiving the Director General’s notice of the meeting. A representative from the CSA did then attend the meetings held on 22 January 2021 in relation to each employee.

12      The learned Industrial Magistrate summarised the CSA’s Award breach allegations arising from the events of 21 January 2022 and 22 January 2022 as:

(a) Scheduling the two meetings for 22 January 2022 without communicating directly with the CSA.

(b) Insisting on meeting with an employee in person and not permitting the CSA to attend in place of the employee.

(c) Failing to change a meeting time to allow a particular CSA representative to attend.

(d) Preventing a CSA representative from discussing certain matters during a meeting on 22 January 2022.

(e) Failing to give the CSA correspondence on behalf of, or in place of, an employee the CSA represented.

13      The learned Industrial Magistrate dismissed all five allegations.

14      The breaches alleged at paragraphs (b), (c), (d) and (e) are not the subject of the grounds of appeal as proposed to be amended. The proposed amended appeal grounds only concern the findings related to the alleged breaches in paragraph (a): the failure to communicate directly with the CSA.

15      Relevant to the failure to communicate directly with the CSA, the learned Industrial Magistrate found that cl 36A(4) was triggered by the CSA’s notification that it was acting for the employees, and that the Director General was therefore required to recognise the CSA’s representational capacity in all future dealings on the disciplinary matter: [15].

16      Her Honour found:

(a) The relevant ‘person’ having representational capacity was the CSA: [20].

(b) Both the invitation to attend the 22 January 2021 meeting and the meeting itself were ‘dealings’ on the matter: [23] and [24].

(c) By advising the employees that the employees were permitted to have a union representative attend the meeting, the Director General complied with the requirement to recognise the CSA’s representational capacity in the matter: [35] and [71].

When will leave be granted to amend grounds of appeal?

17      The Full Bench has power to grant leave to amend grounds of appeal. The power is discretionary.

18      In dealing with this application the Full Bench is conscious that neither the Commission, nor the IMC, are courts of pleading. The Commission is required to act according to equity, good conscience and the substantial merits of the case, having regard to the interests of the persons immediately concerned and for the interests of the community as a whole: s 26(1)(a) and (c). The Commission may allow amendments on any terms it thinks fit, correct, amend or waive errors, defects and irregularities and generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter: s 27(1)(l), (m) and (v); Bilos v Aurion Gold [2003] WAIRC 09858; (2004) 84 WAIG 1008 at [19].

19      While the discretion will be exercised having regard to the particular facts and circumstances of each case, some of the factors which are ordinarily relevant when dealing with an application to amend grounds of appeal are:

(a) the time when notice was first given to the Full Bench and the respondent of the intention to apply for the amendment;

(b) the explanation, if any, for seeking amendment;

(c) whether the proposed amendment constitutes a reasonably arguable ground of appeal;

(d) the consequences to the appellant of not granting leave to amend;

(e) the extent of any prejudice to the respondent;

(f) any measures which may be taken to eliminate or reduce the prejudice to the respondent; and

(g) issues of delay and costs.

See Anderson v Rogers Seller & Myhill Pty Ltd [2007] WAIRC 00218; (2007) 87 WAIG 289 at [106].

20      Regulation 102(2) of the Industrial Relations Commission Regulations 2005 (WA) requires that a notice of appeal ‘clearly and concisely set out the grounds of appeal and what alternative decision the appellant seeks’.

21      Regulation 102(3) of Industrial Relations Commission Regulations 2005 (WA) provides that it is not sufficient to allege that a decision or part of it is against the evidence or the weight of the evidence or is wrong in law. The grounds must specify the particulars relied on to demonstrate that it is against the evidence and the weight of evidence and the specific reasons why it is alleged to be wrong in law.

22      Ultimately, the purpose of the grounds of appeal is to give the respondent fair notice of the case it is required to meet.

Timing

23      The appeal was commenced on 12 April 2023. It was set down for a directions hearing on 2 June 2023 at which time, the CSA advised the Full Bench it may seek to amend the grounds of appeal. An application to amend the grounds of appeal was then lodged on 16 June 2023. After the respondent filed submissions opposing the proposed amendments, the CSA sought further amendments by application dated 23 August 2023, and then further amendments by application during the hearing of its application to amend on 20 September 2023.

24      The Director General did not oppose the CSA’s 23 August 2023 application to amend on the grounds of delay, but did oppose leave being granted for the CSA to make further amendments to the 23 August 2023 version of the grounds, if leave was not granted to the CSA on that version.

25      The appeal has not yet been listed for hearing. While some time has passed since the appeal was commenced, the only step that has been taken in the interim is the filing of the appeal book.

26      The timing of the amendment is such that no significant issues arise concerning delay and costs. While there is some delay, and some additional cost, it is not out of the ordinary course of adversarial proceedings.

27      The timing of the amendment is not itself a factor against the grant of leave.

Explanation for amendment

28      The CSA’s explanation for the amendment is that it will narrow the grounds of appeal and clarify those grounds which remain.

29      The grounds as originally formulated are deficient. They are neither clear nor concise. As a general observation, they do not identify the learned Industrial Magistrate’s findings that are said to be in error, nor why the findings involve error.

30      The amendments seek to cure these deficiencies.

31      The explanation is a good reason for granting leave if the amendments do address the deficiencies.

Do the amended grounds reveal a reasonably arguable ground of appeal?

Ground 1

32      Proposed amended ground 1 is as follows:

1. In dismissing alleged contraventions (i) and (iii) in matter M170 of 2021, the Industrial Magistrate erred in law in interpreting clause 36A of the Public Service Award 1992 (the Award) by finding in paragraphs [36] and [72] of the reasons for decision that clause 36A did not place an obligation on the Respondent to serve ‘invitations and the like’ upon the nominated representative of an officer where the invitation relates to a significant matter.

Particulars

 A. Clause 36A provided officers involved in significant matters (e.g. discipline and performance management) with a ‘right to representation’: Clause 36A(2).

B. An officer’s right to representation included advocacy: Clause 36A(2).

C. While the presence of an officer’s representative was not required at every meeting between an officer and the Respondent, the Respondent was required to:

i. recognise the officer’s representative;

ii. recognise the representational capacity of the Respondent’s Appellant’s representative in all future dealings on that matter;

iii. permit the officer’s representative to attend all meetings involving significant matters;

iv. allow the officer’s representative to advocate on behalf of the officer at those meetings; and

v. make reasonable efforts to avoid unnecessary delays: Clause 36A(3), (4), (5).

D. Given the officer’s right to representation and the above express obligations on the Respondent in clause 36A, it was erroneous for the Industrial Magistrate to conclude that clause 36A did not require the Respondent to correspond with the officer’s representative about planning meetings relating to significant matters involving the officer.

E. The proper construction of clause 36A required the Respondent to correspond with the officer’s representative about planning meetings relating to significant matters involving the officer.

33      The respondent says that this proposed amended ground is deficient because it fails to particularise the alleged correct construction of cl 36A and fails to identify which part of cl 36A is to be construed.

34      While the ground does not expressly deal with these matters, it is implicit reading the ground as a whole, including the references to specific paragraphs in the learned Industrial Magistrate’s reasons, that it is directed at the learned Industrial Magistrate’s construction of the words in cl 36A(4) ‘recognise that person’s representational capacity’.

35      It is also readily apparent from Particular E that the CSA contends that these words mean ‘correspond with [the representative] about future dealings in the matter’.

36      Accordingly, the ground does provide fair notice of the CSA’s case to the respondent.

37      The Director General further says that the ground fails to challenge the learned Industrial Magistrate’s factual findings that the Director General recognised the CSA’s representational capacity, and therefore, even if established, the ground cannot result in a successful appeal.

38      However, the learned Industrial Magistrate’s findings in this regard (being the findings at [35] and [71]) were based on the construction of the words which the ground of appeal challenges. The findings are challenged in grounds 2 and 3. Grounds 2 and 3 essentially recognise that if ground 1 succeeds, it would follow that the decision should be quashed, as the factual findings stem from the successful ground.

39      Finally, the Director General says the proposed ground proceeds on the basis that the alleged contravention was something other than that which was truly alleged in the proceedings, namely that direct contact with the employees was prohibited.

40      It is ‘elementary’ that a party is bound by the conduct of their case at trial: see Buss P and Murphy JA in Gold Valley Iron Pty Ltd (in liq) v Ops Screening & Crushing Equipment Pty Ltd [2022] WASCA 134 at [84]‑[89] where the relevant authorities are collected and summarised. Only in the most exceptional circumstances will a party be allowed to raise a new argument on appeal which it failed to put during a hearing when it had an opportunity to do so.

41      The limited exceptions were described in Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 at [13]:

…Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. See Suttor v. Gundowda Pty. Ltd. [1950] HCA 35; (1950) 81 CLR 418, at p 438; University of Wollongong v. Metwally (No.2) [1985] HCA 28; (1985) 59 ALJR 481, at p 483; [1985] HCA 28; 60 ALR 68, at p 71; Coulton v. Holcombe [1986] HCA 33; (1986) 162 CLR 1, at pp 7‑8; O’Brien v. Komesaroff [1982] HCA 33; (1982) 150 CLR 310, at p 319.

42      The question, then, is whether the breach that is assumed by amended ground 1 is a new point?

43      The relevant parts of the Originating Claim are paragraphs 8, 12, 13 and 16 which are set out below:

8. On 21 January 2021 the Respondent made arrangements with Ms Malkoc and Mr Petrovski to attend separate meetings on 22 January 2021 to receive a letter of outcome in respect to their allegations of a breach of discipline without making the arrangements through the Claimant as expected or required as their representative. (emphasis added)

12. Wherefore[sic], the Claimant alleges that the Respondent has contravened or failed to comply with clause 36A(4) the Award; namely to recognise the union’s representational capacity in all future dealings on that matter. (original emphasis)

13. The matter was discipline as contemplated in clause 39A(1), and the breach was complete when the officer of the employing authority contacted the CSA’s members to arrange meetings or an interviews without the CSA’s knowledge. (original emphasis)

16. Clause 36A…does not prevent an employing authority from sending copies of correspondence or communications addressed to the Claimant to the Claimant’s members at the same time.

44      A point may be a new point even if it is within the particulars or pleadings. The pleadings are not conclusive. To determine whether a new point is being raised on appeal, it is necessary to look to the actual conduct of the proceedings: Gold Valley Iron Pty Ltd at [87] citing Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598. Nevertheless, given how the claim was framed in the Originating Claim, it is difficult to accept the respondent’s characterisation of the claim as ‘truly’ being that direct contact with the employees was prohibited. The Originating Claim expressly disavows that position.

45      The CSA’s written submissions for the first instance hearing do contain a suggestion that the CSA was making a case that direct contact with the employees was prohibited. At paragraph 7, the submissions say:

7. The claimant states that the breach of the Award arose from the conduct of the respondent on the 21 and 22 of January 2022. Through its direct correspondence with the members; the prevention of attendance of the chosen representatives at meetings; requiring a face to face meeting with the members on the discipline matter; and not allowing discussion of the disciplinary process. (emphasis added)

46      However, the submissions continue at paragraphs 75 and 100:

75. By not communicating directly with the representatives, by not allowing time for the meeting to be rescheduled; and by requiring that the member sit in a meeting and be read a letter the respondent has shown a lack of recognition of the representative. (emphasis added)

100. The representatives were not included in any invitation to the meetings. Their representational capacity was therefore not recognised… (emphasis added)

47      In his written submissions for the first instance hearing, the Director General accused the CSA’s written submissions of seeking to ‘expand its claim of alleged contraventions through its written submissions’ by alleging for the first time that direct contact with the employees was conduct that was in breach of cl 36A: see paragraphs 7‑15 of the Respondent’s Written Submissions. The Director General argued that the CSA should not be allowed to press such a claim.

48      In opening the CSA’s case in the hearing at first instance, the CSA’s representative characterised the relevant claim as follows:

…We submit that the proper construction of “Represent” is that the industrial officer acts for the member and their attendance is equivalent to the attendance of the members. Therefore, by not contacting the claimant's officers directly, the respondent failed to recognise the representation of the members…

It’s therefore not necessary for the members to be contacted directly, as contact could and should be achieved through the representatives… (ts 5) (emphasis added)

49      In opening submissions, the CSA’s representative used a combination of phrases to describe the conduct constituting the alleged breach, including ‘direct correspondence with the members’, ‘not communicating directly with the representatives’ and ‘not including the representatives’. It is fair to say, as the learned Industrial Magistrate had picked up, the CSA’s case was unclear about precisely what conduct was alleged to constitute the relevant breach.

50      Her Honour appropriately pressed the CSA on this point, which lead to the CSA saying, in its closing submissions:

We submit that the correct instruction[sic] [construction] is that a representative being recognised means that when a discussion, meeting or investigation regarding a serious matter, such as discipline occurs, the representative is communicated with regarding the matter. Communication about the matter is delivered to the representative, or in the case of the email, that both parties are included in the email, and that meetings are scheduled with the availabilities of both parties. (ts 36)

51      Doing the best with the case that was presented, the learned Industrial Magistrate ultimately proceeded on the basis that the alleged contravention was ‘by not directly informing the [CSA] about the meeting scheduled on 22 January 2021’. That was a fair summary of the CSA’s case, within the parameters of what the respondent fairly ought to have appreciated was the case.

52      The Director General’s counsel pointed out that paragraph 13 of the Originating Claim asserts that the relevant breach was complete ‘when the officer of the employing authority contacted the CSA’s members…’. He said this demonstrated that the contemplated breach could not have been a failure to correspond or communicate generally, but a failure to communicate at or before the time the members were contacted to arrange the meeting. During the hearing of the application to amend its grounds, the CSA confirmed that nothing different was being alleged or assumed by ground 1. But ground 1 is confined to the question of construction of the clause, not the facts that constitute the breach of it.

53      Having regard to the combination of the Originating Claim, written submissions and submissions at hearing, it cannot be said that the CSA’s true point at first instance was that the direct contact with employees was prohibited by cl 36A(4). The point that is raised by ground 1 of the proposed amended grounds of appeal, which is a question of construction, was before the learned Industrial Magistrate. It is not a new point.

Ground 2 and Ground 3

54      Proposed amended ground 2 is as follows:

2. In dismissing alleged contravention (i) in matter M170 of 2021, the Industrial Magistrate erred in fact and law by finding, at paragraphs [34] to [36] of the reasons for decision, that the Respondent:

i. did not deny Ms Malkoc her recognised the Appellant’s representational capacity under clause 36A; and

ii. otherwise complied with the obligation in clause 36A of the Award to recognise Ms Malkoc’s nominated representative in all future dealings of the significant matter,

despite having correctly found:

iii. at paragraph [23] of the reasons for decision, that a meeting scheduled by an employer to discuss the outcome of an investigation into a disciplinary matter is clearly a “dealing” on that matter;

iv. at paragraph [24] of the reasons for decision, that the invitation to such a meeting is also a “dealing” on the matter; and

v. at paragraph [26] of the reasons for decision, the Respondent did not send the meeting invitation to Ms Malkoc’s representative.

Particulars

A. Clause 36A provided officers involved in significant matters (e.g. discipline and performance management) with a ‘right to representation’: Clause 36A(2).

B. An officer’s right to representation included advocacy: Clause 36A(2).

C. While the presence of an officer’s representative was not required at every meeting between an officer and the Respondent, the Respondent was required to:

i. recognise the officer’s representative;

ii. recognise the representational capacity of the Respondent’s Appellants representative in all future dealings on that matter;

iii. permit the officer’s representative to attend all meetings involving significant matters;

iv. allow the officer’s representative to advocate on behalf of the officer at those meetings; and

v. make reasonable efforts to avoid unnecessary delays: Clause 36A(3), (4), (5).

D. Given the officer’s right to representation Appellants representational capacity and the above express obligations on the Respondent in clause 36A, it was erroneous for the Industrial Magistrate to conclude that clause 36A did not require the Respondent to correspond with the officer’s representative about planning meetings relating to significant matters involving the officer.

E. The Industrial Magistrate’s error in law consequentially caused it to make an error in fact by finding that the Respondent did not contravene clause 36A.

55      Ground 2 concerns how the meeting about the first employee’s disciplinary process outcome was arranged. Ground 3 is substantively the same as ground 2, except that it concerns the factual findings related to the second employee.

56      These grounds are tied to ground 1, in that they challenge the factual findings made in the learned Industrial Magistrate’s application of the facts to her Honour’s construction of cl 36A(4).

57      Despite having four goes at drafting these grounds, the proposed amendments still attribute to the Industrial Magistrate findings that were not made. However, these are just obvious errors in drafting. They do not suggest a misconceived reading of the Industrial Magistrate’s reasons. For example, reference is made to a finding that the Respondent did not send the meeting invitation to ‘Mr Tebbutt’s representative’. It is obviously intended this paragraph refer to Mr Tebbutt, the CSA officer, not Mr Tebbutt’s representative.

58      As I have said, the grounds are really an extension of ground 1. The relevant factual findings are:

(a) that the Director General did not communicate with the CSA directly in order to arrange the meetings that occurred on 22 January 2021; and

(b) the Director General did tell the employees that they were permitted to have a union representative with them at the meeting.

59      The grounds do not challenge these two key factual findings. Rather, the grounds are simply that if the learned Industrial Magistrate erred in her Honour’s construction of cl 36A(4) as alleged in ground 1, then the finding that cl 36A(4) was complied with was also wrong on the facts.

60      Perhaps the grounds could be more succinctly and clearly articulated. But they are decipherable, understandable and give fair notice of what the alleged errors are.

Orders

61      The proposed amended orders sought are:

4. The Appellant seeks the following orders:

i. That the Industrial Magistrate’s decision to dismiss contraventions (i) and (iii) is varied as follows:

1. The Full Bench orders that the Respondent contravened clause 36A(4) of the Award in respect of Ms Malkoc by not directly informing the Appellant about the meeting scheduled on 22 January 2021.

2. The Full Bench also orders that the Respondent contravened clause 36A(4) of the Award in respect of Mr Petrovski by not directly informing the Appellant about the meeting scheduled on 22 January 2021.

ii. Alternative to paragraph 4.i, the Industrial Magistrate’s decision to dismiss alleged contraventions (i) and (iii) is quashed.

iii. And that the matter is remitted to the Industrial Magistrate’s Court for further hearing and determination on the issue of remedy and penalties in relation to contraventions (i) and (iii).

62      The Director General argues that the orders in 4(i) relate to contraventions that were not the subject of the claim at first instance and so are not available. Specifically, that the claim at first instance was that the respondent’s breach occurred when the CSA was not directly informed about the meeting scheduled on 22 January 2021 concurrently with when the employees were informed. The orders, however, assume the breach was not directly informing the CSA about the meeting in a more general sense.

63      Although the orders sought in paragraph 4 permit the possibility of a wider range of conduct constituting the breach, the Full Bench and the respondent have a sufficiently clear understanding of the CSA’s case from the grounds which precede the orders sought, together with the CSA’s assurances that the CSA is not seeking to broaden its case on appeal beyond that which was advanced at first instance.

Consequences to the CSA if the amendments are not allowed and prejudice to the respondent

64      The CSA considers the issues that are raised in this appeal are of general importance in relation to the CSA and its members. It concerns members’ representational rights; such rights having been negotiated for inclusion in an enforceable industrial instrument.

65      The Director General agrees that the correct construction of cl 36A is an issue of importance generally for the parties to the Award, including employers who are not parties to the appeal. But he says that because of the unclear way the case was run at first instance, and confusion over the CSA’s position, this appeal is not an appropriate vehicle for clarifying these important issues. The Full Bench agrees. The proposed amended grounds of appeal necessarily have a narrow focus because of how the matter was run at first instance. Further, two of the three grounds are particular to the facts.

66      Nevertheless, disallowing the amendments will prevent the CSA from advancing arguable grounds of appeal.

67      The Director General did not suggest that it would suffer particular prejudice if the amendments were allowed. However, his counsel suggested that the CSA was in dispute with other employer parties to the Award about clause 36A, and that delays brought about by amendments to the grounds, particularly if the grounds remained defective, would prolong the proceedings and create general uncertainty.

68      We are not aware of any specific requirement for the Commission to consider the interests of non‑parties in determining whether to allow amendments to the grounds of appeal. Even if it is required to consider such interests, the interests of ensuring the issues are narrowed in this appeal counterbalance that consideration.

69      If the CSA is required to run this appeal on the basis of the grounds as originally filed, this will likely cause it, and the Full Bench, difficulty in identifying the real issues. It would also likely cause time to be wasted on non‑issues.

70      For the above reasons, the Full Bench will give the CSA permission to amend the grounds of appeal in accordance with the application dated 23 August 2023 as amended on 22 September 2023.

Disposition and programming orders

71      The orders will be:

(a) The appellant is granted leave to amend the grounds of appeal in accordance with the Minute of Proposed Further Amended Grounds of Appeal dated 22 September 2023.

(b) The appeal be listed for hearing on a date to be fixed.