Appeal against a decision of the Industrial Magistrate in matter M 72/2023 given on 22 December 2023

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2024 WAIRC 00247

DELIVERED : MONday, 27 May 2024

FILE NO. : FBA 2 OF 2024

Appellant

AND

Industrial Inspector Chiara Catalucci

Respondent

ON APPEAL FROM:

Jurisdiction : Industrial Magistrates Court

Coram : Industrial Magistrate Tsang

Citation : 2023 WAIRC 00991 (Reasons for Decision)

File No : M 72 of 2023

CatchWords : Industrial Law (WA) - Appeal against a decision of the Industrial Magistrate – Interlocutory application seeking extension of time to appeal the decision – Factors to consider  – Whether appeal demonstrates prospects of success – Whether the notice of appeal clearly and concisely sets out the grounds of appeal – Grounds unparticularised – Long Service Leave Act 1958 (WA) – Meaning of ‘continuous employment’ – Extension of time not granted – Appeal dismissed

Legislation : Fair Work Act 2009 (Cth)
Industrial Relations Act 1979 (WA)

Industrial Relations Commission Regulations 2005 (WA)

Industrial Relations Legislation Amendment Act 2021 (WA)

Industrial Relations Legislation Amendments Bill 2021 (WA)

Long Service Leave Act 1958 (WA)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Mr A Fauchon, of counsel

Respondent : Ms S Power, of counsel

Solicitors:

Appellant : Solve Legal

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69 WAIG 1287

Browne v Director General, Department of Water and Environmental Regulation [2020] WASCA 16

Byrne v Australian Airlines Limited [1995] HCA 24; 185 CLR 410

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Holland v UGL Resources Pty Ltd T/A UGL Resources [2012] FWA 3453

Jose Rogelia A Acosta v Gerry Francis Broderick, Bryan Francis Stokes [2004] WAIRC 11557; (2004) 84 WAIG 1321

Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283

United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2014) 95 WAIG 13

United Workers Union v Child and Adolescent Health Service and others [2023] WAIRC 00666

Case(s) also cited:

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Ellison v Sandini Pty Ltd [2018] FCAFC 44; 263 FCR 460

Reasons for Decision

THE FULL BENCH:

1         The appellant, Arc Holdings Pty Ltd, is seeking an extension of time to appeal a decision of the Industrial Magistrates Court under s 84 of the Industrial Relations Act 1979 (WA) (IR Act) and, if that extension of time is granted, a short extension of time within which to file the appeal books.

2         The decision Arc Holdings intends to appeal is a decision dated 22 December 2023 affirming the respondent, Industrial Inspector Chiara Catalucci’s Compliance Notice which required Arc Holdings to pay an amount of accrued but untaken long service leave to its employee, Mr Patrick McCormick.

3         In the proceedings at first instance, Arc Holdings argued that Mr McCormick was not due long service leave as he had not completed the relevant qualifying period of continuous employment.

4         At first instance, it was agreed that Mr McCormick was employed by Arc Holdings as an apprentice pursuant to a written employment contract starting on 23 October 2012 to 1 January 2016 (First Contract). It was agreed that this First Contract automatically came to an end at the expiry of its term on 1 November 2017. It was also agreed that Mr McCormick was employed by Arc Holdings as an electrician after he completed his apprenticeship from the day following the day the First Contract expired, 2 November 2017 pursuant to a second contract of employment which was entered into (Second Contract).

5         The crux of Arc Holdings’ case at first instance was, and on appeal is, that there was a break in continuous employment between the end of the First Contract and the commencement of the Second Contract, by virtue of the expiry of the First Contract.

6         The learned Industrial Magistrate rejected Arc Holdings’ arguments. Her Honour concluded:

a. Mr McCormick’s employment was continuous for the period from 23 October 2012 to 29 October 2020: [50].

b. As Mr McCormick completed at least seven years of continuous employment, he was entitled to pro rata long service leave on the termination of his employment on 29 October 2020, pursuant to s 8(3) of the Long Service Leave Act 1958 (WA) (LSL Act): [51].

c. Arc Holdings had an obligation to pay Mr McCormick his pro rata long service leave entitlement on the termination of his employment, pursuant to s 9(2) of the LSL Act: [52].

d. Accordingly, the compliance notice should be confirmed, and Arc Holdings’ claim dismissed: [54].

Principles that apply in granting an extension of time to appeal

7         The Full Bench is empowered to extend the time to appeal under s 84 of the IR Act: Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69 WAIG 1287 affirmed by a majority of the Full Bench in United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2014) 95 WAIG 13 at [18]-[21].

8         The principles that apply to such an application were set out in: Jose Rogelia A Acosta v Gerry Francis Broderick, Bryan Francis Stokes [2004] WAIRC 11557; (2004) 84 WAIG 1321

[42] The grant of an extension of time within which to appeal is not automatic. The object of a power to extend time which exists in this Full Bench, and has been so held, in relation to s49(3) and s84(3) of the Act is like all such powers and is for the sole purpose of enabling the Full Bench to do justice between the parties.

[43] In order to determine whether rules, and, indeed, in this case the Act, will work an injustice by the time limit which the Act imposes, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequence for the parties of the grant or refusal of the application for extension of time. It is, of course, always necessary to consider the prospects of the applicants succeeding in the appeal. It is also necessary to bear in mind in such applications that upon the expiry of the time for appealing, the respondent has a vested right to retain the judgement unless the application is granted. The initial step in determining whether there would otherwise be an injustice to the appellant may often be to decide whether the prospect of the appellant succeeding in the substantive appeal if an extension of time were granted, is a real one.

[44] In Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, the Full Court of the Supreme Court of this State held that there were usually four major factors to be considered in exercising the Court’s decision to extend time. These are the length of the delay, the reason for the delay, whether there was an arguable case, and the extent of any prejudice which was suffered by the respondent.

9         In this case, the notice of appeal was filed one day late. The length of the delay is short. There is at least an adequate explanation for the delay, namely Arc Holdings’ solicitors having a Christmas shutdown period between 22 December 2023, being the date that the Industrial Magistrates Court issued its orders, and 8 January 2024, in effect leaving only five days for Arc Holdings to consider the orders, obtain advice, and provide instructions to institute an appeal, as well as for the its solicitors to prepare the documents necessary to institute the appeal.

10      The contentious and determinative issue is whether the appeal has merit. Unless the appeal has real prospects of success, no injustice can result from the refusal to extend time to appeal.

11      The authorities are clear that the applicant bears the onus of demonstrating that to refuse an extension of time would result in an injustice: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459; Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283 at [69].

12      It is therefore for Arc Holdings to demonstrate that the appeal is arguable and that the appellant has real prospects of succeeding in the appeal.

Prospects of success

13      There are seven proposed grounds of appeal. They are:

1. The Industrial Magistrate denied procedural fairness by making conclusions that were beyond the evidence and submissions presented by the parties in the hearing, and further, of which the Appellant was provided no notice, nor an opportunity to respond.

2. The Industrial Magistrate erred by incorrectly applying the principle in Ellison v Sandini [Pty Ltd [2018] FCAFC 44; (2018) 263 FCR 460] to expand the application of a deeming provision as opposed to the narrow interpretation that is appropriate (para 23(a)).

3. The Industrial Magistrate erred by incorrectly interpreting Section 6 of the Long Service Leave Act as being calculated by an accumulation of otherwise distinct periods of both employment and apprenticeship. (para 23(b)).

4. The Industrial Magistrate erred by incorrectly interpreted the meaning of “absence” at s6(2)(i) to be a reference to termination of employment. (para 23(c))

5. The Industrial Magistrate erred by incorrectly applying the authority in Byrne v Australian Airlines [Ltd [1995] HCA 24; (1995) 185 CLR 410] (paras 46-48). Her Honour incorrectly determined that the employment relationship did not cease, even if only briefly, with the expiration of said contract.

6.  The Industrial Magistrate erred by distinguishing between the meaning of “continuous service” and “continuous employment”, such that Her Honour concluded a meaning inconsistent with that of the Fair Work Act 2009 (Cth).

7. The Industrial Magistrate erred by not giving due consideration to the principle of legality, such that the legislature must clearly and unambiguously by the text of a statute, evidence its intention to depart from the common law or extinguish established common law rights.

14      Arc Holdings correctly notes that this application for an extension of time is not an appropriate forum for a pre-trial of the appeal itself. The Full Bench does not need to undertake an elaborate analysis of the grounds of appeal.

15      In its written submissions, Arc Holdings submitted that the grounds of appeal should be sufficient to demonstrate to the Full Bench that there are prima facie merits to its appeal. At the hearing of its application, counsel for Arc Holdings appropriately conceded that at least some of the grounds of appeal were inadequately particularised for such a conclusion to hold. Counsel for Arc Holdings elaborated on the issue that was at the crux of the hearing at first instance, and is at the crux of the appeal, that is, whether there is a break in continuous employment by virtue of the end of an employment contract in a series of employment contracts.

Ground 1

16      This ground is not particularised. It does not identify any particular findings or conclusions which the learned Industrial Magistrate is alleged to have made which were beyond the evidence and submissions, or in relation to which the appellant had no notice or opportunity to respond.

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

18      The ground does not comply with reg 102(2) and is liable to be struck out.

19      At hearing, Arc Holdings’ counsel explained the lack of particularity was because the Notice of Appeal was filed immediately after a Christmas shut-down period, and at a time when the appellant’s lawyers had not yet obtained transcript.

20      Arc Holdings has had ample time between the filing of the Notice of Appeal on 16 January 2024 and the time of the hearing of this application to have provided the Full Bench with proposed amended grounds, or particulars of its grounds.

21      Counsel foreshadowed that if permitted to appeal, this ground would be particularised to allege that the learned Industrial Magistrate failed to give the parties notice that she would place reliance upon the Explanatory Memorandum to the Industrial Relations Legislation Amendment Bill 2021 (WA) to inform her reasoning at [40] – [45].

22      Her Honour’s reasoning at [40]-[45] is part of her reasoning in support of her conclusion at [30]:

I agree with Ms Catalucci’s submissions that s 4 of the LSL Act always contemplated that an apprentice would be an employee for the purposes of the LSL Act.

23      This was in answer to Arc Holding’s submission at first instance that before the enactment of s 6(7) of the LSL Act by s 84 of the Industrial Relations Legislation Amendment Act 2021 (WA), the LSL Act did not contemplate that a period of apprenticeship would form part of an employee’s continuous employment.

24      The principal difficulty with this foreshadowed ground is that there are no grounds which challenge her Honour’s ultimate finding that an apprentice is an employee under the LSL Act, as it was prior to the 2021 amendments. None of the grounds attempt to demonstrate that this fundamental conclusion was in error, such that any opportunity that might have been given to the parties to address the Explanatory Memorandum could have altered the result.

25      As the High Court unanimously observed in Stead v State Government Insurance Commission [1986] HCA 54; (1988) 161 CLR 141 at [9]-[11] (footnote omitted):

9. The general principle applicable in the present circumstances was well expressed by the English Court of Appeal (Denning, Romer and Parker L.JJ.) in Jones v. National Coal Board [[1957] 2 QB 55], in these terms:

“There is one thing to which everyone in this country is entitled, and that is a fair trial at which he can put his case properly before the judge. … No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

10. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

11. Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference. …

Ground 2

26      This challenge is made to part of the learned Industrial Magistrate’s reasoning to the conclusion at [23] that s 6 of the LSL Act does not need to expressly state that a period following termination of an employment contract counts as continuous employment.

27      In making this conclusion, her Honour was dealing with Arc Holdings’ submission to the effect that s 6 is exhaustive of the absences and interruptions that are deemed not to break continuous employment.

28      This ground of appeal proceeds on the basis that the effect of her Honour’s reasoning at [23] is that her Honour found s 6 itself applied to Mr McCormick’s circumstances, that is, the termination of the First Contract fell within the meaning of ‘continuous employment’ by virtue of s 6. If that was the effect of the reasoning, error could arguably be demonstrated.

29      However, Arc Holdings’ contentions misconstrue the Industrial Magistrate’s reasoning process. Reading the primary decision fairly and as a whole, the Industrial Magistrate did not find s 6 deemed Mr McCormick’s circumstances to amount to continuous employment.

30      It is important to note that her Honour had concluded, at [20] that ‘employment’ and ‘continuous employment’ should be construed in accordance with their ordinary meanings. This conclusion is not challenged in the appeal grounds. At the hearing of the appeal, Arc Holdings’ counsel accepted that ‘continuous employment’ has its ordinary meaning, that is, a period of unbroken service to an employer by an employee: Browne v Director General, Department of Water and Environmental Regulation [2020] WASCA 16, per Le Miere J at [119]; Holland v UGL Resources Pty Ltd T/A UGL Resources [2012] FWA 3453 at [20] and [22]; Butterworths Employment and Law Dictionary (1st ed, 1997) ‘continuous employment’.

31      Once the learned Industrial Magistrate accepted, at [23], that s 6 does not deem a period following termination of a fixed term contract and the commencement of a new contract to be ‘continuous employment’, the question remained whether the instant facts qualified as ‘continuous employment’.

32      This question was not a question of construction of any part of the LSL Act. It was a question of the application of the LSL Act, as properly construed, to the facts in Mr McCormick’s case. That in turn involved an assessment of whether, as a matter of law and of fact, the end of the First Contract broke ‘continuous employment’ where continuous employment has its ordinary meaning.

33      The learned Industrial Magistrate proceeded to apply this meaning to the facts of the instant case from [24] of her Honour’s reasons and following.

34      Ultimately her Honour did not purport to interpret s 6 in either an expansive or narrow way. If she had, any error in so doing is inconsequential, as s 6 was not then applied in reasoning to the conclusion that Mr McCormick’s employment was continuous.

Ground 3

35      This ground is unintelligible. It takes aim at her Honour’s reasoning at [23(b)] as follows:

Secondly, s 6 operates to treat certain periods of absences from, and interruptions to, employment that might not have counted towards an employee’s continuous employment as deemed to be counted. This means, s 6 would have no role to play if an employee was not absent from, or there was no interruption to, their employment.

36      This summary of the effect of s 6 is plainly correct and utterly orthodox. It is a statement of the obvious. There is nothing in it capable of being seriously questioned. It does not have the effect attributed to it by the ground of appeal, of requiring continuous service to be calculated by an accumulation of otherwise distinct periods of both employment and apprenticeship, if, by ‘distinct’ Arc Holdings means ‘broken’.

37      The ground is without merit.

Ground 4

38      By this ground it is said the learned Industrial Magistrate erred by incorrectly interpreting the meaning of ‘absence’ at s 6(2)(i) to be a reference to termination of employment when her Honour said at [23(c)]:

Thirdly, s 6 is intended to operate broadly and not be limited by the circumstances stated in the provision. This is apparent from s 6(2)(i) which deems any absence not specified in s 6(1) and s 6(2) as counting towards an employee’s continuous employment, unless the employer gives written notice to the employee during the absence or within 14 days of the termination of the absence, that the continuity of their employment has been broken by the absence.

39      The ground of appeal misconstrues the primary decision read fairly, as a whole.

40      Section 6(2)(i) of the LSL Act says:

For the purposes of this Act, the employment of an employee whether before or after the commencement of this Act shall be deemed to be continuous notwithstanding —

…

(i) any absence of the employee from his employment after the coming into operation of this Act by reason of any cause not specified in subsection (1) or in this subsection unless the employer, during the absence or within 14 days of the termination of the absence, gives written notice to the employee that the continuity of his employment has been broken by that absence, in which case the absence shall be deemed to have broken the continuity of employment.

41      Her Honour did not equate ‘absence’ in s 6(2)(i) to termination of employment, nor conclude that termination of employment was such an absence. Her Honour simply paraphrased s6(2)(i).

42      As we have said, her Honour’s conclusion that the termination of the First Contract did not break continuous service was not ultimately arrived at by applying s6. Her Honour correctly concluded that s 6 was not the exclusive route by which continuity of employment can be achieved. Even if this part of the primary decision involved error, it is inconsequential.

Ground 5

43      Arc Holdings alleges that the Industrial Magistrate erred at [46] – [48] by incorrectly applying the authority in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 and therefore wrongly concluding that the employment relationship did not cease, even if only briefly, when the First Contract expired.

44      This ground goes to the crux of the issue that was before the Industrial Magistrate at first instance. Despite Arc Holdings’ focus in its submissions at first instance on:

a. the correct construction of ‘continuous employment’;

b. the effect of s 6 of the LSL Act; and

c. whether ‘continuous employment’ had the same meaning as ‘continuous service’ under the Fair Work Act 2009 (Cth) (FW Act),

at the end of the day what Arc Holdings had to show was that the expiry of the First Contract was a break in Mr McCormick’s continuous employment.

45      On this issue, her Honour found at [47]:

I find that while the First Contract expired on the completion of the term covering Mr McCormick’s apprenticeship on 1 November 2017, this did not terminate his employment relationship with Arc Holdings. This is because, on 2 November 2017, his employment with Arc Holdings continued, as an Electrician. I find that there was no absence, break or interruption in Mr McCormick’s employment between the ending of the First Contract and the commencement of the Second Contract, for the purposes of the LSL Act. I find Mr McCormick’s employment under the First Contract is continuous with his employment under the Second Contract.

46      It is arguable that the Industrial Magistrate’s reference to, and the distinction between the employment relationship and the employment contract indicates that her Honour was asking herself the wrong question. The question was not whether the employment relationship continued. Nor was the question whether the employment contract continued. Rather, it was whether Mr McCormack’s period of employment was continuous across the two contracts. Was the period of employment broken?

47      However, this does not reveal error in the final conclusion that Mr McCormick’s employment was continuous. Rather, it underscores the very problem with Arc Holdings’ case at first instance, which relied on distinct employment contracts to establish a break in continuous employment.

48      As we have said, Arc Holdings takes no issue with the correct meaning of ‘continuous employment’ being a period of unbroken service to an employer by an employee.

49      What Arc Holdings has failed to adequately explain is why an employee’s period of service starts and ends with each engagement as understood in the common law of employment, or why a period of continuous employment cannot be made up of a series of periods of service, with no break between them.

50      At the hearing of this application, Arc Holdings’ counsel submitted that the position at law is that when a contract expires resulting in the termination of employment, there ceases to be an employment contract and there ceases to be an employment relationship. That is an uncontroversial proposition. But in the instant case, Mr McCormick continued to be employed by Arc Holdings under the Second Contract. There was no break in the period of employment between the First Contract and the Second Contract. The employment under the Second Contract commenced the day following the expiry of the First Contract.

51      Counsel conceded that the instant case did not involve any period of absence from employment. Rather, it was said to involve an ‘interruption’ to continuous employment, particularly as Mr McCormick’s accrued entitlements were paid out at the expiry of the First Contract. But while the end of a contract may obviously interrupt that contract, the relevant question is whether it interrupts the period of employment.

52      On the agreed facts, it is clear that Mr McCormick’s period of employment with Arc Holdings was not broken when the First Contract expired.

53      There may be an error in her Honour’s reasoning. But any error cannot have affected the ultimate result, and would not result in the appeal being upheld.

Ground 6

54      This ground is also unintelligible. Arc Holdings accepts that it is inadequately particularised. It appears to allege two possible errors. First, that the learned Industrial Magistrate erred in finding continuous employment had a different meaning to continuous service. Second that the Industrial Magistrate erred in not finding ‘continuous employment’ under the LSL Act has the same meaning as ‘continuous service’ in the FW Act.

55      Despite these alleged errors, Arc Holdings accepts that the correct meaning of ‘continuous employment’ is its ordinary meaning as we have articulated it in the preceding paragraphs. The Industrial Magistrate also concluded at [20] that ‘continuous employment’ has its ordinary meaning.

56      Even if this ground was properly particularised, and made out, it would not lead to any different result for the reasons set out under Ground 5, and so would not result in the appeal being upheld.

Ground 7

57      This ground is also inadequately particularised. Arc Holdings did not attempt to elaborate on the ground or establish why it had merit, other than to say that the FW Act either has a bearing on the definition of ‘continuous employment’ or it does not. But the meaning of ‘continuous employment’ is ultimately not controversial. The ground can go nowhere.

Conclusion and disposition

58      We have concluded that the grounds of appeal do not establish any appealable error of consequence. While Arc Holdings might be able to establish error in the learned Industrial Magistrate’s process of reasoning in selective respects, any such errors are inconsequential because Arc Holdings has not established there is an arguable case that the ultimate finding that Mr McCormick’s period of employment with it was unbroken was wrong. This finding was sound and inevitable as a result of the orthodox application of the meaning of ‘continuous employment’ under the LSL Act to Mr McCormick’s employment with Arc Holdings.

59      Accordingly, Arc Holdings has not shown that the interests of justice require that an extension of time to appeal be granted, because it has not shown that the appeal has prospects of success.

60      We decline to exercise the discretion available to the Full Bench to extend the time for filing the appeal, and dismiss the appeal.