WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES WORKSAFE WESTERN AUSTRALIA COMMISSIONER

APPELLANT

-and-

Anthony and Sons Pty Ltd T/A Oceanic Cruises

RESPONDENT

CORAM FULL BENCH

 The Honourable M T Ritter, Acting President

 Commissioner P E Scott

 Commissioner S Wood

HEARD Friday, 8 September 2006

DELIVERED MONDAY, 18 SEPTEMBER 2006

FILE NO. FBA 23 OF 2006

CITATION NO. 2006 WAIRC 05438

CatchWords Industrial Law (WA) - Appeal against declaration made by the Occupational Safety and Health Tribunal - Whether Tribunal has jurisdictin to extend 7 day time period in s51A(2) of the Occuapational Safety and Health Act 1984 (WA) - Referral of matters to Tribunal for review under s51A(1) - Issue of statutory construction - Limited jurisdiction conferred on Tribunal to "hear and determine matters" within specified time period - Appeal allowed – Industrial Relations Act 1979 (WA) (as amended), s26(1)-(3), s27(1)(n), s49, s49(2a), s113(1)(d)(ii)(I), Occupational Safety and Health Act 1984 (WA), s22(1)(a), s48(1)(a), (2)(d), (4), s49(1), (5), s51(2)(b), (6), (7), s51AA, s51A(1), (2), (4), (7), s51G(2), s51I - Industrial Relations Commission Regulations 2005, r36, r97

Decision Appeal allowed, declaration made by the Occupational Safety and Health Tribunal varied

Appearances

Appellant Ms L Eddy (of Counsel), by leave

Respondent Captain P Douglas

Reasons for Decision

THE ACTING PRESIDENT:

The Appeal

1         The present appeal has been instituted under s51I of the Occupational Safety and Health Act 1984 (WA) (the OSH Act) and s49 of the Industrial Relations Act 1979 (WA) (as amended) (the Act).  The appeal is against a declaration made by the Occupational Safety and Health Tribunal (the Tribunal) on 28 June 2006.

2         The declaration of the Tribunal was that:-

“The Occupational Safety and Health Tribunal has the power to consider an application to extend the 7 day period for lodging a s 51A application.”

3         A “s51A application” is the referral of a matter to the Tribunal pursuant to s51A(1) of the OSH Act.  The “7 day period” referred to in the declaration is that specified in s51A(2) of the OSH Act.

4         The issue which was determined by the declaration made by the Tribunal was raised as a jurisdictional issue by the appellant.  The issue of whether, in these proceedings, a reference was made outside the 7 day time period specified in s51A(2) of the OSH Act has not as yet been determined by the Tribunal.  The appellant concedes this may well be a live issue, but it is not one which the Full Bench is required to consider for the purposes of determining the appeal.

5         In short, the point at issue in the appeal is whether the Tribunal misconstrued the OSH Act and the Act in deciding that the Tribunal had the jurisdiction and power to entertain an application to extend the 7 day time period specified in s51A(2) of the OSH Act.  The appellant contends the Tribunal does not have the power to extend the 7 day time limit.  Accordingly it is submitted that the Tribunal does not have the jurisdiction to determine a referral to it, purportedly under s51A(1), outside the 7 day period specified in s51A(2) of the OSH Act.

6         The respondent did not make any substantive submissions to the Full Bench on the jurisdictional issue.

Leave to Appeal

7         The appellant acknowledges that the declaration made by the Tribunal was a “finding” for the purposes of s49(2a) of the Act.  The word “finding” is defined in s7 of the Act 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”.  The declaration made by the Tribunal is of this character.  Section 49(2a) of the Act therefore provides that an appeal “does not lie … unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie”.

8         In Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 at [13]-[14], I described the public interest requirement of s49(2a) of the Act in the following way (with the concurrence of Gregor SC and Smith C):-

“13 In RRIA v AMWSU and Others (1989) 69 WAIG 1873, the Full Bench at 1879 said that the words “public interest” in s49(2a) of the Act should not be narrowed to mean “special or extraordinary circumstances”.  As stated by the Full Bench, an application may involve circumstances which are neither special nor extraordinary but which are, because of their very generality, of great importance in the public interest.  The Full Bench, on the same page, went on to say that important questions with likely repercussions in other industries and substantial matters of law affecting jurisdiction can give rise to matters of sufficient importance in the public interest to justify an appeal.  The RRIA decision was cited with approval and applied in the recent Full Bench decision of CSA v Shean (2005) 85 WAIG 2993 at 2995-2997.

14 The forming of the opinion referred to in s49(2a) of the Act involves a value judgment and is clearly a matter which the Full Bench needs to assess on a case by case basis, having regard to the issues which the proposed appeal will give rise to.”

9         The appellant submits the public interest requirement is satisfied because the proposed appeal raises an important question of jurisdiction which has not previously been considered by the Full Bench.  It is submitted that the appellant, who has the responsibility for the administration of the OSH Act and for authorising prosecutions under that Act, needs to have certainty in relation to whether there is power to extend time to make a referral under s51A of the OSH Act.  It is also submitted that persons to whom improvement notices are issued need to know with certainty whether the time limit for referring an improvement notice to the Tribunal for review can be extended.  It is also submitted that employees and other people whose safety may potentially be affected by a contravention of the obligations under the OSH Act at a workplace have an interest in knowing whether they can confidently expect compliance with an improvement notice, issued by the appellant, after the expiry of the 7 day time limit for referring the improvement notice to the Tribunal for review.

10      In my opinion, the issue raised in the present matter is of sufficient importance to lead to the conclusion that an appeal should lie under s49(2a) of the Act.  This is because it is about the limits of the jurisdiction of the Tribunal in the context of a referral to it under s51A of the OSH Act, with respect to an improvement notice.  It is in the public interest that the Full Bench consider and determine the jurisdictional issue.

Factual and Procedural Background

11      The background to the appeal may be shortly stated.  An inspector appointed under the OSH Act issued an improvement notice to the respondent on 5 January 2006.  The improvement notice required the respondent to remedy what the inspector believed to be a contravention of s22(1)(a) of the OSH Act by 1 February 2006.

12      On 9 January 2006 Captain Peter Douglas, of Douglas Comp-Pete Marine Consultants, on behalf of the respondent wrote to the appellant requesting that the improvement notice be rescinded.

13      By letter dated 1 February 2006 from the appellant to Captain Douglas, the appellant informed the respondent of her decision to affirm the improvement notice.  By the same letter the appellant agreed to modify the date for compliance to 5.00pm on 2 March 2006.

14      Captain Douglas replied to the appellant by letter dated 10 February 2006.  This letter made further submissions and requested the appellant review her original decision.  No reply to this letter was received by 14 March 2006.  Accordingly on that date Captain Douglas sent another letter to the appellant enclosing a copy of the letter dated 10 February 2006 in case the same had been mislaid.

15      On 21 March 2006 the appellant responded to the letter dated 10 February 2006.  In this letter the appellant said she was not able to further review the decision she had made.  The letter said that the OSH Act “specifically requires an appeal of my decision to be lodged with the Occupational Safety and Health Tribunal within seven days of the issuance of my decision”.  The letter also stated that whilst reserving the right to act upon a breach of the improvement notice and take appropriate action, the appellant was prepared to amend the compliance date of the notice to 5:00pm on 31 March 2006.

16      Captain Douglas wrote a reply to this letter dated 22 March 2006.

17      On 26 March 2006 Captain Douglas wrote a letter which was addressed to the “Chairman/Manager, Occupational Safety and Health Tribunal”.  This letter set out a brief narrative of the events and amongst other things requested a “hearing on this matter”.  It appears however that the letter was not sent to or lodged with the Tribunal by Captain Douglas.  Instead the letter seems to have been received by the Department of Consumer and Employment Protection and then forwarded to the Tribunal.  It seems that the letter so forwarded was received by the Tribunal on 30 March 2006.

18      After correspondence between the Tribunal and the parties about the jurisdictional issue, the Tribunal listed the issue for hearing on 21 April 2006.  At the end of this hearing the Tribunal reserved its decision.  The Tribunal published reasons for decision on 23 June 2006, which led to the making of the declaration quoted earlier.

Statutory Framework

19      Part VI of the OSH Act is about improvement and prohibition notices.  Specifically s48 provides that inspectors may issue improvement notices.  Relevant to the present appeal, s48(1)(a) of the OSH Act provides that where an inspector is of the opinion that a person is contravening any provision of the OSH Act the inspector may issue to the person an improvement notice requiring the person to remedy the contravention.

20      Section 48(2) of the OSH Act sets out the contents of an improvement notice.  Section 48(2)(d) sets out the notice shall “specify the time before which the person is required, to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention”.

21      Section 48(4) of the OSH Act provides that subject to s51 and s51A of the OSH Act, if a person is issued with an improvement notice and does not comply with the notice within the time specified in it, the person commits an offence.

22      Section 49 of the OSH Act is about the issuing by inspectors of prohibition notices.  A prohibition notice may only be issued by an inspector pursuant to s49(1) of the OSH Act where the inspector is “of the opinion that an activity is occurring or may occur at a workplace which activity involves or will involve a risk of imminent and serious injury to, or imminent and serious harm to the health of, any person”.  In these circumstances the “inspector may issue to a person that is or will be carrying on the activity, or a person that has or may be reasonably presumed to have control over the activity, a prohibition notice prohibiting the carrying on of the activity until an inspector is satisfied that the matters which give or will give rise to the risk are remedied”.  Section 49(5) of the OSH Act again provides that subject to s51 and s51A, if a person issued with a prohibition notice does not comply with the notice, the person commits an offence.

23      Section 51 of the OSH Act is about the review of improvement or prohibition notices by the appellant.  It is in the following terms:-

“51. Review of notices

(1) An improvement notice or prohibition notice may, in accordance with this section, be referred for review to the Commissioner by — 

(a) the person issued with the notice; or

(b) the employer (if any) of the person issued with the notice.

(2) A reference under subsection (1) may be made in the prescribed form — 

(a) in the case of an improvement notice, within the time specified in the notice as the time before which the notice is required to be complied with;

(b) in the case of a prohibition notice, within 7 days of the issue of the notice or such further time as may be allowed by the Commissioner.

[(3) and (4)  repealed]

(5) On the reference under this section of an improvement notice or a prohibition notice for review, the Commissioner shall inquire into the circumstances relating to the notice and may — 

(a) affirm the notice;

(b) affirm the notice with such modifications as seem appropriate; or

(c) cancel the notice,

and, subject to section 51A, the notice shall have effect or, as the case may be, cease to have effect, accordingly.

(6) The Commissioner shall give to the person that referred the matter for review, and to any other person that was entitled under subsection (1) to refer the notice for review, a notice in writing of the decision on the reference and of the reasons for that decision.

(6a) In dealing with a reference for the review of a prohibition notice the Commissioner may refer to an expert chosen by the Commissioner such matters as appear appropriate and may accept the advice of that expert.

(7) Pending the decision on a reference under this section for the review of a notice, the operation of the notice shall — 

(a) in the case of an improvement notice, be suspended; and

(b) in the case of a prohibition notice, continue, subject to any decision to the contrary made by the Commissioner.”

24      It is noted that s51(2) of the OSH Act sets out time limits for the referral for review to the appellant.  In the case of an improvement notice the time limit is the time specified in the notice as the time before which the notice is required to be complied with.  With respect to a prohibition notice, the time limit is “7 days of the issue of the notice or such further time as may be allowed by the Commissioner”.  It is also noted that s51(7) provides in the case of an improvement notice that the notice is suspended pending the decision on a reference under the section.

25      Section 51AA of the OSH Act provides a power for the appellant to cancel an improvement or prohibition notice.

26      Section 51A of the OSH Act, which is pivotal to the present appeal, is in the following terms:-

“51A. Further review of notices

(1) A person issued with notice of a decision under section 51(6) may, if not satisfied with the Commissioner’s decision, refer the matter in accordance with subsection (2) to the Tribunal for further review.

(2) A reference under subsection (1) may be made in the prescribed form within 7 days of the issue of the notice under section 51(6).

(3) A review of a decision made under section 51 shall be in the nature of a rehearing.

(4) The Tribunal shall act as quickly as is practicable in determining a matter referred under this section.

(5) On a reference under subsection (1) the Tribunal shall inquire into the circumstances relating to the notice and may — 

(a) affirm the decision of the Commissioner;

(b) affirm the decision of the Commissioner with such modifications as seem appropriate; or

(c) revoke the decision of the Commissioner and make such other decision with respect to the notice as seems fit,

and the notice shall have effect or, as the case may be, cease to have effect accordingly.

[(6) repealed]

(7) Pending the decision on a reference under this section, irrespective of the decision of the Commissioner under section 51, the operation of the notice in respect of which the reference is made shall — 

(a) in the case of an improvement notice, be suspended; and

(b) in the case of a prohibition notice, continue, subject to any decision to the contrary made by the Tribunal.”

27      The word “Tribunal” is defined in s3 of the OSH Act to have the meaning given to that term in s51G(2) of the OSH Act.

28      Section 51A(2) of the OSH Act sets out the time limit central to the present appeal.  There is no express power given to the Tribunal in s51A or elsewhere in the OSH Act to extend this time.  Section 51A(7) replicates s51(7) as to the suspension of the operation of an improvement notice pending the decision on a reference.

29      Section 51G of the OSH Act is in the following terms:-

“51G. Industrial Relations Commission sitting as the Occupational Safety and Health Tribunal

(1) By this subsection the Commission has jurisdiction to hear and determine matters that may be referred for determination under sections 28(2), 30(6), 30A(4), 31(11), 34(1), 35(3), 35C, 39G(1), (2) and (3) and 51A(1).

(2) When sitting in exercise of the jurisdiction conferred by subsection (1) the Commission is to be known as the Occupational Safety and Health Tribunal (the “Tribunal”).

(3) A determination of the Tribunal on a matter mentioned in subsection (1) has effect according to its substance and an order containing the determination is an instrument to which section 83 of the Industrial Relations Act 1979 applies.”

30      Of the sections set out in s51G(1) of the OSH Act, under which matters may be referred to the Tribunal, only s51A(1) has, by virtue of s51A(2), an expressed time limit within which the reference may be made.

31      Section 51I of the OSH Act is also relevant and is in the following terms:-

“51I. Practice, procedure and appeals

(1) The provisions of sections 22B, 26(1), (2) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 33, 34(1), (3) and (4), 36 and 49 of the Industrial Relations Act 1979 that apply to and in relation to the exercise of the jurisdiction of the Commission constituted by a Commissioner apply to the exercise of the jurisdiction conferred by section 51G —

(a) with such modifications as are prescribed under section 113 of that Act; and

(b) with such other modifications as may be necessary or appropriate.

(2) For the purposes of subsection (1), section 31(1) of the Industrial Relations Act 1979 applies as if paragraph (c) were deleted and the following paragraph were inserted instead —

“   

(c) by a legal practitioner.”

The Reasons of the Tribunal

32      In its reasons for decision the Tribunal set out the submissions made by the present appellant.  The Tribunal then referred to the Full Bench decision in Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69 WAIG 1287.  In that decision the Full Bench determined that there was power to extend the time limit expressed in the Act for instituting an appeal to the Full Bench.  The Tribunal in its reasons set out some observations of the Full Bench in the Arpad decision about extensions of time generally.  The Tribunal then referred to Re Coldham and Others; ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 159 CLR 522, a decision relied upon in the reasons in Arpad.  The Tribunal then further referred to and quoted from the reasons in both Arpad and Coldham.

33      The conclusions of the Tribunal are expressed in paragraphs [26] and [27] of its reasons in the following terms:-

“26 On the authorities cited in these reasons for decision the Tribunal finds that there is power under the Act to extend the time for filing a s 51A application.  The Tribunal has had regard for a number of factors:

(a) Power to extend time can be exercised after the time as prescribed in the Act;

(b) The Tribunal has had regard for the objects of the Act, s 26(1) and s 27(1) of the IR Act in reaching its finding; and

(c) Having regard for the general provisions referred to in the Act and the IR Act (as per (b) above) s 51A(2) cannot be considered as a barrier to the Tribunal extending time within which to file an application for further review of either an improvement notice or a prohibition notice.

27 The Tribunal finds it does have the power to issue an order extending that time which a s 51A referral can be filed.  The Tribunal finds that power exists after the 7 day period prescribed under s 51A(2) has expired.  A declaration will issue accordingly.”

34      I note that the reasons of the Tribunal do not specifically set out the source of the power to extend the 7 day time period contained in s51A(2) of the OSH Act.

Analysis

35      The issue in the appeal is whether the Tribunal was correct to decide that it had power to extend the time limit in s51A(2) of the OSH Act for the making of a reference under s51A(1).  The issue to be determined is one of statutory construction.  The process is to ascertain the intention of the legislature, having regard to the text of the OSH Act, considered as a whole.  (Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Wilson v Anderson and Others (2002) 213 CLR 401 at [8]).

36      It is necessary to consider the purpose of the time period specified in s51A(2) of the OSH Act, the limits placed on the jurisdiction of the Tribunal and the powers of the Tribunal expressed in the OSH Act and the Act.  I have already set out the statutory framework of the OSH Act relevant to the issue and review of improvement notices.  The objects of the Act are also relevant and will be referred to below.  It is important that the Tribunal is not given any express power in the OSH Act to extend the 7 day time period specified in s51A(2).

37      The jurisdiction of the Tribunal in the present type of matter is circumscribed by the contents of s51G(1) and s51A(1) of the OSH Act.  Section 51G(1) gives the Commission, sitting as the Tribunal, a limited jurisdiction to “hear and determine matters”.  It is limited to the “matters” set out in s51G(1).  These are the “matters” which “may be referred for determination under” the sections of the OSH Act there specified, including s51A(1).

38      In s51A(1) of the OSH Act the “matter” is the non-satisfaction with the appellant’s decision under s51(6) of the OSH Act, of the person who has been issued with the notice of the decision.  The referral of that matter to the Tribunal “under” s51A(1) of the OSH Act is however limited by s51A(2) of the OSH Act.  This provides that a reference under s51A(1) “may be made … within 7 days of the issue of the notice under section 51(6)” of the OSH Act.

39      Although s51A(2) of the OSH Act is couched in permissive terms, in my opinion it provides for a limited entitlement.  It is an entitlement to make a reference limited, with respect to time, to taking this action within the specified 7 day period.  Put slightly differently the subsection does not provide for any entitlement upon a person to refer a matter to the Tribunal under s51A(1) of the OSH Act, outside the 7 day period specified in s51A(2).  Accordingly as a matter “under” s51A(1) may only be referred to the Tribunal “for determination” if the reference is made within the 7 day time period specified in s51A(2) of the OSH Act, the Tribunal does not have jurisdiction under s51G to hear and determine a matter of this type referred to it outside this time period.  As a matter of statutory construction therefore the making of a reference within the 7 day time period is an “essential preliminary to the exercise of the [Tribunal’s] jurisdiction”.  (See Aurion Gold v Bilos [2004] WASCA 270 per McLure J at [28]; and see also Berowra Holdings Pty Ltd v Gordon (2006) 80 ALJR 1214 at [20]).

40      This construction of s51G(1) and s51A of the OSH Act is consistent with the objects of the OSH Act and its purpose in providing for the issuing and review of prohibition and improvement notices.  It has the effect that whilst a person may seek a review by the Tribunal of the relevant decision, this must be done within 7 days.  A tight time frame is provided, given the subject matter of improvement and prohibition notices.  The objects of the OSH Act as set out in s5 include “to promote and secure the safety and health of persons at work” and “to protect persons at work against hazards”.  The issue of improvement and prohibition notices, with time limited review rights, is one method by which the OSH Act attempts to achieve these aims.

41      As set out earlier, improvement notices are issued under s48(1) of the OSH Act where an inspector is of the opinion that a person has contravened or is contravening a provision of the OSH Act.

42      Section 48(2)(d) provides that the improvement notice is to specify the time before which a person is required to remedy the contravention of the OSH Act.  The doing of things within a specified time is therefore part of the nature of an improvement notice as created by the OSH Act.  The same applies with respect to the seeking of a review of an improvement notice by the appellant.

43      Section 51(2) of the OSH Act provides that in the case of an improvement notice a reference to the appellant for review may be made within the time specified in the notice as the time before which the notice is required to be complied with.  This may be contrasted to a prohibition notice which under s51(2)(b) of the OSH Act may be referred to the appellant for review within 7 days of the issue of the notice or such further time as may be allowed by the appellant.  It is significant that the OSH Act here expressly provides for the possibility of an extension of time, whereas there is no such power given to the Tribunal under s51A or s51G of the OSH Act.  Also, the time limit contained within s51(2) of the OSH Act is important because s51(7) provides that the operation of an improvement notice is suspended pending the decision on a reference under that section.

44      The same consequence applies with respect to a reference to the Tribunal under s51A(1) of the OSH Act, by virtue of s51A(7).  This again indicates the importance, in the scheme of the Act, of review proceedings occurring within a timely fashion.  This is reinforced by s51A(4) of the OSH Act which provides that the Tribunal “shall act as quickly as is practicable in determining a matter referred under this section”.

45      The suspension of the operation of an improvement notice by s51A(7) of the OSH Act is pending “the decision on a reference under this section”.  Again, a reference “under the section” is one made within the 7 days specified in s51A(2).  Section 51A(7) does not contemplate the status of an improvement notice when a reference is made outside the 7 day time period, pending or after the determination of an application to extend time.  This supports the conclusion that the Tribunal does not have power to extend time.  This is because if such a power existed, it would be expected that the legislature would have provided for the consequences of the making of an application to, and order by the Tribunal, to extend time, upon the status of an improvement notice.

46      The scheme of the OSH Act with respect to improvement notices is therefore consistent with a person having an entitlement, limited to a period of 7 days, to make a reference to the Tribunal with respect to a matter under s51A(1) of the OSH Act.

47      The present issue was considered to some extent by Parker J in Re Bartholomaeus, unreported, Supreme Court of WA, Lib No 970567, 20 October 1997.  At that time the scheme of the OSH Act was that there was jurisdiction given to Safety and Health Magistrates to hear and determine, amongst other things, references made under s51A of the OSH Act.  Section 51A(2) was in the same terms as presently.  As described by Parker J, the OSH Act also then provided in s51C(3) that, except as otherwise prescribed by or under the OSH Act, the powers and the practice and procedure to be observed by a Magistrate when hearing and determining any matter referred under the OSH Act was as provided for in the Local Courts Act 1904.  At the time of the decision in Re Bartholomaeus, the Commission did not have any jurisdiction under s51A or s51G of the OSH Act.

48      In Re Bartholomaeus, the reference was not made to the Safety and Health Magistrate within the 7 day time period.  The point was taken before the Magistrate who purported to extend the 7 day time limit.  Parker J decided that the Magistrate had committed a jurisdictional error in so doing.  At page 4 of his reasons Parker J said:-

“There is no provision in the Occupational Safety and Health Act itself for the extension of that time and, indeed, the scheme of the Act would appear to support the view that the prescription of 7 days was intended as the limit of the time within which a reference might be made under that provision.”

49      Parker J had earlier said that the Local Courts Act 1904 did not contain a provision allowing “time to be extended for the issue of originating process”.  Parker J further observed at page 5 of his reasons that the relevant reference may be made “only if that is done within 7 days, and if that does not occur there is no capacity for a reference to be heard and determined by a Health and Safety Magistrate”.  His Honour stated that it was “a requirement of the exercise of the relevant jurisdiction by a Health and Safety Magistrate that there be a reference within 7 days of the issue of the notice”.

50      These observations by Parker J in Re Bartholomaeus are consistent with and support the opinions I have set out earlier.

51      Additionally when s51A and s51G of the OSH Act were amended and inserted by the Occupational Safety and Health Legislation Amendment and Repeal Act 2004, to give the Tribunal jurisdiction, there was no amendment to s51A(2) of the OSH Act.  This may be taken, after the decision in Re Bartholomaeus, as a type of legislative approval of the construction of s51A(2) contained in that decision.  (See D C Pearce and R S Geddes, Statutory Interpretation in Australia, 6th Edition 2006, page 108).  Certainly there is nothing in the second reading speech to indicate there was any intent to change the effect of the decision of Re Bartholomaeus, which is not mentioned in the second reading speech.

52      As referred to earlier the Tribunal held that it contained a power to extend the 7 day time limit.  The reasons of the Tribunal seem to indicate that this power existed within s26 or s27 of the Act, although there was no precise specification as to what the power was or how it applied to the jurisdiction of the Tribunal.

53      Section 51I(1) of the OSH Act has been quoted earlier.  This provides that sections of the Act including s26(1)-(3) and s27 apply “to the exercise of the jurisdiction … conferred by section 51G”, with the modifications set out in s51I(1).  The sections of the Act listed in s51I(1) apply to the “exercise of” the jurisdiction conferred by s51G. They cannot be used to extend the jurisdiction of the Tribunal.  Therefore the sections of the Act listed in s51I(1), including s27(1)(n), cannot be used to extend the 7 day time period specified in s51A(2) of the OSH Act which is incorporated as a jurisdictional prerequisite into s51G(1) of the OSH Act.

54      The same conclusion follows with respect to regulation 36 of the Industrial Relations Commission Regulations 2005 (the Regulations) which applies to the practice and procedure of the Tribunal by virtue of s51I(1)(a) of the OSH Act, s113(1)(d)(ii)(I) of the Act and regulation 97 of the Regulations.

55      As set out earlier the Tribunal was influenced by the Arpad decision of the Full Bench in coming to its conclusion.  In my opinion however the issue determined by the Full Bench in Arpad is distinguishable from the present issue.  The Arpad decision did not determine the powers of the Commission, sitting as the Tribunal, with respect to the jurisdiction limited by s51G and s51A of the OSH Act.  The Arpad decision does not therefore, with respect, compel or support the conclusion reached by the Tribunal in light of the specific provisions of the OSH Act.

Conclusion

56      For the reasons set out above I am of the respectful opinion that the Tribunal erred in deciding that it had power to extend the 7 day time limit.  Accordingly in my opinion the following orders should be made:-

1. The appeal is allowed.

2. The declaration made by the Occupational Safety and Health Tribunal on 28 June 2006 is varied by the substitution of the following declaration:-

The Occupational Safety and Health Tribunal does not have the power to consider an application to extend the 7 day period for making a reference under s 51A of the Occupational Safety and Health Act 1984.

57      In my opinion a minute of proposed orders should issue in these terms.

COMMISSIONER P E SCOTT:

58      I have had the benefit of reading the Reasons for Decision of His Honour the Acting President.  I agree with those reasons and have nothing to add.

COMMISSIONER S WOOD:

59      I have had the benefit of reading the Reasons for Decision of His Honour the Acting President.  I agree with those reasons and have nothing to add.