APPEAL AGAINST A DECISION OF THE INDUSTRIAL MAGISTRATE IN MATTER NUMBER M 17/2024 GIVEN ON 13 JUNE 2024

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00096

DELIVERED : TUESday, 18 fEBRUARY 2025

FILE NO. : FBA 15 OF 2024

Appellant

AND

Director General Department of Education, WA

Respondent

CatchWords : Industrial Law (WA) - Appeal against a decision of the Industrial Magistrate – What constitutes a ‘decision’ of the Industrial Magistrates Court for the purpose of an appeal to the Full Bench under s 84(2) of the Industrial Relations Act – Whether an order to strike out pleadings is a ‘decision’ – ‘decision’ in s 84 means a final determination of the substantive application – Appeal dismissed

Legislation  : Industrial Relations Act 1979 (WA)

Industrial Magistrate's Court (General Jurisdiction) Regulations 2005 (WA)

Industrial Relations Legislation Amendment Act 2021 (WA)
Labour Relations Reform Act 2002 (No 20 of 2002)
Long Service Leave Act 1958 (WA)
Public Sector Management Act 1994 (WA)

Result : Appeal dismissed

Representation:

Counsel:

Appellant : Ms D Gavril on her own behalf

Respondent : Mr J Carroll of counsel

Solicitors:

Appellant : N/A

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

Anderson v Pope (1986) 66 WAIG 1563

Arc Holdings (WA) Pty Ltd v Industrial Inspector [2023] WAIRC 00991; (2023) 04 WAIG 97

Armet v CFC Consolidated Pty Ltd [2019] WASCA 165

Baker Hughes Australia Pty Ltd v Martin Venier [2016] WAIRC 00843; (2016) 96 WAIG 1488

Chubb Security Australia Pty Ltd v Paul Raymond Danson (2000) 81 WAIG 783

City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426

Delia Gavril v Director General Department of Education, WA [2024] WAIRC 00378; (2024) 104 WAIG 862

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89

G Parri and M Parri trading as G & M Parri v The Western Australian Builders’ Labourers, Painters and Plasterers Union of Workers (1998) 78 WAIG 586

Giovanni Basilio Nicoletti v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1998) 86 IR 97; (1998) 78 WAIG 4316

Governing Council of North Metropolitan TAFE v The State School Teachers’ Union of WA [2019] WASCA 120

Graham McCorry v Como Investments Pty Ltd (1989) 70 WAIG 658

Ian Barrett and Tracey Barrett v The Western Australian Builders’ Labourers, Painters and Plasterers Union of Workers (1998) 78 WAIG 2340

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1

Re Luck [2003] HCA 70; (2003) 78 ALJR 177

Terence Tamiana v Team Global Express Pty Ltd [2024] WAIRC 00185; (2024) 104 WAIG 543

The Governing Council of North Metropolitan TAFE v State School Teachers’ Union of WA (Incorporated) [2018] WAIRC 00746; (2018) 98 WAIG 1209

Case(s) also referred to:

R v McGowan and Another; Ex parte Macko and Another [1984] VR 1000

Reasons for Decision

The Full Bench:

1          The appellant, Delia Gavril, commenced a claim in the Industrial Magistrates Court (IMC) alleging that the respondent, the Director General Department of Education, WA (Department), took damaging action against her in contravention of s 97A of the Industrial Relations Act 1979 (WA) (the Act). She tried to articulate her claims by a Statement of the Claimant (Statement) and Further and Better Particulars (Particulars).

2          On 13 June 2024, the IMC made orders, on the Department’s application, striking out parts of the Statement and the Particulars, on the basis that those parts did not disclose a cause of action under s 97A of the Act, and were not salvageable by any further amendments: Delia Gavril v Director General Department of Education, WA [2024] WAIRC 00378; (2024) 104 WAIG 862 (Reasons) per Scaddan IM at [74]. Industrial Magistrate Scadden considered the struck-out parts alluded to other possible claims beyond the IMC’s jurisdiction, but did not disclose a cause of action for damaging action under s 97A: Reasons at [75]. Her Honour did not strike out all of the Statement nor all of the Particulars, intending to preserve three distinct claims under s 97A.

3          Ms Gavril was ordered to file further and better particulars of one of her remaining causes of action, that is, that damaging action in the form of being deprived of or had a reduced opportunity to be a permanent employee as a result of making enquiries or complaints: Reasons at Schedule III, order 3.

4          However, the effect of the Court’s orders was that two purported causes of action, relating to Ms Gavril’s time working as a Payroll Officer, were struck out. These parts of the claim were referred to in the Statement at [194] and in the Particulars as ‘PART 1: Working as a Payroll Officer’ and ‘PART 2: Payroll Officer Renew Contract’: see Schedule II of the Reasons.

5          Ms Gavril has appealed from the IMC’s orders striking out the paragraphs of the Statement and Particulars relating to Part 1 and Part 2. Her appeal was confined to a single ground, that the IMC had made an error of fact:

The Magistrate concluded in error that the appellant was transferred to another position after the payroll contract ended.

6          As an aside, we note that it is unlikely that the Industrial Magistrate made any such finding. First, there is no statement in the Reasons that Ms Gavril was transferred to another position after the payroll contract ended.

7          Second, her Honour was determining whether pleadings should be struck out. She was not engaged in a fact-finding exercise. Her Honour’s reasons for striking out parts of the pleadings was because the facts as pleaded did not disclose a cause of action, not because she found the facts could not themselves be established at trial.

8          Her Honour did say at [52]:

Part 1 refers to the complaints made by the claimant regarding a supervisor’s ‘substandard’ training while she was [presumably] undertaking training as a pay roll officer. The claimant refers to a refusal to renew her contract (which must have been renewed as the claimant continued to work in the Department). The claimant says the respondent engaged in damaging action and various other alleged contraventions of the [Public Sector Management Act 1994 (WA) (PSMA)], Public Service Award 1992 (WA) (the Award) and the Public Sector Code of Ethics and Staff Conduct Policy.

9          Ms Gavril says this conclusion does not accord with the facts. She says that the reason she continued to work for the Department was because she successfully applied for another position. This does not detract from her allegation that she failed to secure the renewal of a previous contract, which she alleged was damaging action.

10       But the reason her Honour struck out the relevant part of Ms Gavril’s claim was not because she found, as a fact, that there was no refusal to renew her contract. Rather, the reason was that the facts pleaded did not disclose a cause of action. Ms Gavril’s agent did not argue otherwise during the course of the hearing at first instance, despite the Industrial Magistrate’s careful and patient insistence that the agent pinpoint any damaging action that Ms Gavril relied upon, other than the three causes of action her Honour ultimately preserved: ts 6-8, 11-14.

11       However, there is a threshold issue the Full Bench needs to decide. Does an appeal lie to the Full Bench under s 84 of the Act, from the IMC’s orders?

12       An appeal lies from any ‘decision’ of the IMC to the Full Bench under s 84(2) of the Act. Section 84 says:

(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.

(3) An appeal under this section must be instituted within 21 days from the date of the decision against which the appeal is brought and may be instituted by any party to the proceedings in which the decision was made.

(4) On the hearing of the appeal the Full Bench —

(a) may confirm, reverse, vary, amend, rescind, set aside, or quash the decision the subject of the appeal; and

(b) may remit the matter to the industrial magistrate’s court or to another industrial magistrate’s court for further hearing and determination according to law; and

(c) subject to subsection (5), may make such order as to costs as the Full Bench considers appropriate.

(5) In proceedings under this section costs must not be given to any party to the proceedings for the services of a legal practitioner or agent of that party except —

(a) in respect of an appeal from proceedings under section 83 or 83E — to the party that was the applicant in those proceedings, if the Full Bench finds, or upholds a finding, that the other party has committed a serious contravention; or

(b) if, in the opinion of the Full Bench, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.

(6) At any time after an appeal to the Full Bench has been instituted under this section, a party to the proceedings may apply to the Commission for an order that the operation of the decision appealed against be stayed, wholly or in part, pending the hearing and determination of the appeal.

(7) For the purposes of hearing and determining an application under subsection (6) for an order in respect of a decision, the Commission must be constituted by the presiding commissioner of the Full Bench allocated the appeal against the decision.

13       Section 84(1) expressly defines ‘decision’ for the purposes of s 84 to include a penalty, order, order of dismissal, and any other determination of an industrial magistrate’s court.

14       Section 7(1) of the Act provides that, unless the contrary intention appears, ‘decision’ includes an ‘award, order, declaration or finding’. A ‘finding’ is defined in s 7(1) 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’ (which would include an interlocutory decision of the IMC).

15       The definition of ‘decision’ in s 7(1) of the Act has been held not to apply to s 84. In Anderson v Pope (1986) 66 WAIG 1563, the Industrial Appeal Court (IAC) held that the words used to define ‘decision’ in s 84(1) demonstrate a contrary intention, sufficient to indicate that the definition of ‘decision’ in s 7(1) has no application in the construction of s 84. In these circumstances, their Honours found that an appeal against a ‘decision’ of an Industrial Magistrate only lies against a final determination of the substantive application before the Industrial Magistrate.

16       Ms Gavril argued that the Full Bench is not bound to and should not follow Anderson v Pope because the Act has been amended by the Labour Relations Reform Act 2002 (No 20 of 2002) (2002 amendments) since that decision was delivered and the scope of s 84 was broadened by the 2002 amendments: Appellant’s Written Submissions at [19]-[22]. Ms Gavril relied on Governing Council of North Metropolitan TAFE v The State School Teachers’ Union of WA [2019] WASCA 120 (North Metropolitan TAFE 2019 Decision) as authority in support of her proposition that Anderson v Pope should not be followed. She also argued that to follow Anderson v Pope would be inconsistent with industrial fairness.

17       Ms Gavril argued that if the Anderson v Pope principle does apply, and it is necessary for the orders to constitute a final determination for her to be able to appeal under s 84, then the orders were a final determination. She said that the orders effectively and finally prevented her from pursuing her claims relating to Part 1 and Part 2 (although in her written submissions, Ms Gavril also concedes that the Industrial Magistrate’s exercise of powers was pursuant to ‘procedural tools’ designed to streamline case management without resolving substantive legal rights or claims: [3].)

18       Ms Gavril may be correct to say Anderson v Pope is not binding on the Full Bench because the Act has subsequently been amended. However, for the following reasons, we are of the view that the reference to ‘decision’ in s 84 continues to mean a final determination of the substantive application.

19       The principle in Anderson v Pope has consistently been applied by the Full Bench: see The Governing Council of North Metropolitan TAFE v State School Teachers’ Union of WA (Incorporated) [2018] WAIRC 00746; (2018) 98 WAIG 1209 (North Metropolitan TAFE 2018 Decision); Ian Barrett and Tracey Barrett v The Western Australian Builders’ Labourers, Painters and Plasterers Union of Workers (1998) 78 WAIG 2340 (Barrett v WABLF); G Parri and M Parri trading as G & M Parri v The Western Australian Builders’ Labourers, Painters and Plasterers Union of Workers (1998) 78 WAIG 586 (G & M Parri v WABLPPU); Giovanni Basilio Nicoletti v Transport Workers’ Union of Australia, Industrial Union of Workers, Western Australian Branch (1998) 86 IR 97; (1998) 78 WAIG 4316; Graham McCorry v Como Investments Pty Ltd (1989) 70 WAIG 658; and Chubb Security Australia Pty Ltd v Paul Raymond Danson (2000) 81 WAIG 783.

20       The Full Bench considered the impact of the 2002 amendments on the construction of s 84 in the North Metropolitan TAFE 2018 Decision. The majority (Matthews C dissenting) concluded the 2002 amendments did not reveal an intention that the meaning of ‘decision’ and ‘finding’ should change from the Anderson v Pope meaning.

21       We respectfully agree with the majority reasoning, principally because the 2002 amendments did not effect any significant change to s 84 itself. The only change was to s 84(1) by the substitution of the words ‘by – (a) section 96J; (b) Division 1 of Part 5 of the Workplace Agreements Act 1993; or (c) section 100 of that Act’ with ‘by section 96J’. While the 2002 amendments gave the IMC a new power in s 83 to make interim orders, they otherwise did not change the scheme of the IMC’s enforcement powers or the right of appeal. As Smith AP stated at [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.

22       We also refer to Kenner SC’s observations at [85]-[87]:

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 Commissioner under Parts II and IIA of the Act.

23       The IAC’s reasons in the North Metropolitan TAFE 2019 Decision do not assist Ms Gavril. The IAC did not question the correctness of Anderson v Pope. The issue before the IAC was whether a ‘decision’ in s 84 extended to an interim order made under s 83(5). The IAC expressed some reservations about the application of Anderson v Pope at least to interim orders made under s 83(5) and s 83(7). But the IAC ultimately did not decide the construction question, absent full argument on the point, and in any event, the Court was not concerned with orders other than those which s 83 empowers the IMC to make. The orders the Full Bench is currently concerned with were not made under s 83, but under reg 7 of the Industrial Magistrate’s Court (General Jurisdiction) Regulations 2005 (WA) (IMC Regulations).

24       The Industrial Relations Legislation Amendment Act 2021 (WA) (2021 amendments), amongst other things but relevantly:

a. Permitted the dual appointment of Commissioners as Industrial Magistrates: s 43.

b. Significantly increased the amount of the penalties which could be imposed by the IMC: s 47, s 48, s 51, s 55, s 56.

c. Inserted a new provision and a higher penalty regime for serious contraventions in s 83EA: s 52.

d. Created a reverse onus of proof in s 83EB: s 52.

e. Inserted new provisions s 97B and s 97G to empower the IMC to make orders where damaging action under s 97A or sham contracting under Division 3 is established: s 61.

f.  Created new enforcement functions by substituting the list of the types of instruments to which s 83 applied with the defined term ‘entitlement provision’: s 47.

f. Added new sub-sections 84(5), (6) and (7): s 53.

25       Ms Gavril did not suggest these or any other aspects of the 2021 amendments should result in the meaning of ‘decision’ in s 84 being anything other than a final determination. The nature of the functions performed by the IMC is wider compared with its previous functions of enforcing awards and industrial agreements as described by Onley J in Anderson v Pope at 1565. However, the key to the IAC’s rejection of a broader meaning of ‘decision’ incorporating a ‘finding’ as defined in s 7 was the difference between the IMC’s functions, and the Commission’s functions: see Rowland J at 1566. The expansion of the IMC’s functions does not change the dichotomy between the IMC and the Commission. The IMC is akin to a civil court exercising civil or criminal jurisdiction from which appeals generally only lie as of right from final determinations.

26       Accordingly, nothing about the 2021 amendments causes us to consider the legislature intended to effect a change to the existing law, as expressed in Anderson v Pope. Where s 84 permits an appeal from a ‘decision’ it means a final determination of the application before the IMC.

27       Because Ms Gavril also argued that Anderson v Pope should not be applied because it is industrially unfair, we would simply note that an appeal is a creature of statute. There is no scope for implying a right of appeal based on principles of industrial fairness.

28       Accordingly, Ms Gavril may only appeal from the IMC’s orders, if they are a decision which finally disposes of or finally determines Ms Gavril’s claims.

29       The Department pointed out that the orders from which Ms Gavril is seeking to appeal are of the same type considered by the Full Bench in Barrett v WABLF. In that case, President Sharkey said at 2342:

An order striking out a complaint is not a curial determination of the merits of the charge alleged and, therefore, does not put an end to the proceedings. Until such time as the court determines the matter on its merits and records an order convicting the defendant or dismissing a complaint, an order striking out a complaint is no more than a removal from the list for want of form, or from the list of matters for hearing and determination by the Court (see R v McGowan and Another; Ex parte Macko and Another [1984] VR 1000).

…

Since a striking out, and the striking out in this case, is and was not a final disposition or determination of the complaint, there was no decision finally determining or disposing of the complaint made by the learned Industrial Magistrate in terms of the definition of “decision” in s.84(1) of the Act (see Anderson v Pope (IAC) (op cit) and G & M Parri v WABLPPU (FB) (op cit)).

30       The correctness of this position is beyond question. In the case of Re Luck [2003] HCA 70; (2003) 78 ALJR 177, the High Court held, in effect, that an order dismissing an action because it is frivolous, vexatious or an abuse of process, or does not disclose a reasonable cause of action, is an interlocutory order for appeal purposes. The same must be true of an order to strike out pleadings on those grounds: Armet v CFC Consolidated Pty Ltd [2019] WASCA 165 at [103].

31       Ms Gavril’s appeal falls into this category. The IMC’s orders striking out parts of the Statement and Particulars are not a determination of Ms Gavril’s claims on their merits. While currently, as a consequence of some paragraphs being struck out, Ms Gavril cannot progress her claims related to Part 1 and Part 2 events, her rights in relation to those matters have not been finally determined. The order does not prevent the subject matter of a claim being revived by a fresh and valid claim, subject to it being made within time. The order does not prevent Ms Gavril making an application to amend to reintroduce claims arising out the Part 1 and Part 2 events. Of course, whether such an application succeeds will depend on whether a cause of action is disclosed, and on the balancing of case management considerations.

32       Indeed, the Industrial Magistrate expressly said that if Ms Gavril is relying on the cumulative effect of the complaints or enquiries referenced in Part 1 and Part 2, as the reasons for the Ground 3 damaging action, then she ought to properly plead that in compliance with Order 3: Reasons at [75].

33       We note that Ms Gavril referred to five authorities in support of her argument that the appeal is competent. We will address these briefly:

City of Wanneroo

34       Ms Gavril submits that in City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426, French J recognised that orders or decisions with significant consequences for rights and obligations could be appealable, even if they do not resolve proceedings entirely: Appellant’s Written Submissions at [16]. Ms Gavril says the case ‘emphasizes the importance of considering the context and purpose of industrial provisions and awards, ensuring their interpretation aligns with industrial realities rather than rigid legal formalities’ and supported a liberal interpretation of awards: [16]. She submits the IMC’s rigid application of reg 7 of the IMC Regulations is inconsistent with the principle which this case stands for: Appellant’s Written Submissions at [17]-[18].

35       Ms Gavril was unable to point to where in this decision there is any statement of principle to the effect that orders that are not a final determination of a claim but have significant consequences should be appealable. The decision concerns the approach to interpretation of awards. The Full Bench is not required to interpret an award, but rather a statutory provision, namely s 84 of the Act. City of Wanneroo is not authority for any principle that is relevant to this task.

Farah Constructions Pty Ltd v Say-Dee Pty Ltd

36       Ms Gavril submits that Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 establishes the principle that appellate courts may depart from precedent to avoid injustice and have both the authority and responsibility to intervene when an interim order significantly affects substantive rights or creates legal inconsistency: Appellant’s Written Submissions at [22]. Somewhat conflictingly, in oral submissions she said the High Court emphasised the importance of resolving confusion and ensuring consistency in judicial interpretation.

37       Farah Constructions is a lengthy judgment of the High Court dealing with complex appeals concerning fiduciary duties in relation to land development. The appeal and notice of contention raised 13 issues for the High Court’s determination, including issues concerning whether certain disclosures were made in the course of a development transaction, the duty to disclose certain matters and compliance with any duty of disclosure. Much of the High Court’s reasons concern factual matters specific to the case and the duty of disclosure.

38       In the passage Ms Gavril refers to, [135], the High Court was dealing with an error by the New South Wales Court of Appeal in its approach to restitutionary liability. The High Court considered the Court of Appeal’s approach created confusion, if not a significant departure from established authority: [134]. The High Court observed that a trial judge of the Supreme Court was now faced with a difficult situation of having to reconcile old dicta in the High Court which conflicted with recent dicta in the Court of Appeal, and that the confusion might extend to other intermediate appellate courts in Australia: [135].

39       The reasoning is not relevant to the issues before the Full Bench. This appeal does not call for the Full Bench to resolve any conflicting judicial authority.

Patrick Stevedores Operations No 2 Pty Ltd v MUA

40       Ms Gavril relies on Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 as support for the idea that orders with significant consequences for parties’ rights and obligations ‘could’ be the subject of an appeal, even if they do not resolve proceedings entirely. We understand Ms Gavril derives this support from the fact that the case was an appeal from interlocutory orders, namely, an interlocutory injunction, and the High Court granted special leave to appeal. While Ms Gavril asked the Full Bench to refer to [29]-[33], [36], [42] and [45]-[50] of the High Court’s decision, we cannot glean any relevant principles from those passages.

Tamiana v Team Global Express Pty Ltd

41       Ms Gavril argued that the decision of Terence Tamiana v Team Global Express Pty Ltd [2024] WAIRC 00185; (2024) 104 WAIG 54 confirms that s 84 provides for appeals from decisions of the IMC to the Full Bench, creating an appellate hierarchy.

42       The Industrial Magistrate was considering a claim by an employee under the Long Service Leave Act 1958 (WA) (LSL Act). The relevant issue the Industrial Magistrate was required to determine was whether the employee had the requisite ‘continuous employment with one and the same employer’ for the purpose of a long service leave entitlement. Secondary to this issue was whether the Industrial Magistrate was bound by a decision of the Full Bench of the Western Australian Industrial Relations Commission, namely Baker Hughes Australia Pty Ltd v Martin Venier [2016] WAIRC 00843; (2016) 96 WAIG 1488 (Baker Hughes), on the relevant point.

43       The Industrial Magistrate concluded that Baker Hughes decided the proper construction of the relevant parts of the LSL Act ([12]-[15]), and then also concluded that the determination of the construction was a matter of law and so was binding on the IMC: [28]-[30].

44       It is uncontroversial that appeals lie from the IMC to the Full Bench. This plain fact does not assist Ms Gavril. It is not a legal principle relevant to the particular construction issue we are currently concerned with.

Arc Holdings

45       Ms Gavril argued that in Arc Holdings (WA) Pty Ltd v Industrial Inspector [2023] WAIRC 00991; (2023) 04 WAIG 97, the Industrial Magistrate acknowledged that ‘certain interlocutory decisions could be subject to appeal, particularly when they have significant implications for the parties involved’.

46       This was a decision concerning a claim under the LSL Act. The Industrial Magistrate was required to determine whether the employee qualified as having the requisite period of continuous employment, in circumstances where the employee’s contract of employment as an apprentice ended on one day, and a new contract of employment as a trade qualified employee commenced the next day. In determining this issue, the Industrial Magistrate discussed the approach to interpreting legislation. None of what her Honour says about the task of interpretation is controversial. It does not deal with appeal rights. It does not assist Ms Gavril.

47       After the conclusion of the hearing, Ms Gavril provided the Full Bench with further written submissions to supplement those she made prior to and at the hearing. We have considered those submissions which deal with the merits of Ms Gavril’s single ground of appeal, and perhaps also seek to expand upon the ground of appeal, or add further grounds. Because we have concluded that no appeal lies from the Industrial Magistrate’s orders, it is unnecessary for us to address Ms Gavril’s further written submissions.

48       For the above reasons, we dismiss the appeal.