WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00241

DELIVERED : tuesDAY, 2 May 2017

FILE NO. : C 10 OF 2017

Applicant

AND

The Director General, Department of Education

Respondent

CatchWords : Applicant's member dismissed by respondent - Refusal to re-employ - Application for interim order for re-employment - Consideration of whether interim order for re-employment within power - Principles applied - Application dismissed

Legislation : Criminal Code

  Industrial Relations Act 1979

  Labour Relations Reform Act 2002

  Working with Children (Criminal Record Checking) Act 2004

Result : Application for interim order dismissed

Representation:

Applicant : Mr M Amati

Respondent : Mr N van Hattem of counsel

Solicitors:

Respondent : State Solicitor’s Office

Cases referred to in reasons:

BHP Billiton Iron Ore Pty Ltd v CFMEU [2006] WASCA 49

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672

Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105

Cases also cited:

Brett v Sharyn O'Neill, Director General, Department of Education [2015] WASCA 66

Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union (2003) 83 WAIG 3314

RGC Mineral Sands Ltd & Anor v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch and Ors [2000] WASCA 162

The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch and Anna Pineira trading as Aunty Joan's Child Care Centre (1990) 70 WAIG 2126

The State School Teachers' Union of W.A. (Incorporated) v Director General, Department of Education (2014) 94 WAIG 1469

The State School Teachers' Union of WA (Incorporated) v The Director General, Department of Education (2016) 96 WAIG 1

The Undercliffe Nursing Home v. The Federated Miscellaneous Workers' Union of Australia, W.A. Branch 65 WAIG 385

Reasons for Decision

1         The applicant’s member was a teacher employed by the respondent. In November 2016 the respondent became aware that the applicant’s member had been issued with an interim negative notice under the Working with Children (Criminal Record Checking) Act 2004. It is unlawful to employ a person in child-related employment, such as teaching, if an interim negative notice has been issued to a person and the notice is current. The applicant’s member was informed of this by the respondent and his employment ended.

2         The interim negative notice did not become final and, in fact, the applicant’s member was, once the matter was considered by the relevant authorities, issued with what is called an “assessment notice” which allowed him to be employed in child-related employment.

3         The applicant then started to make representations to the respondent that its member be re-employed as a teacher. These were unsuccessful. The respondent’s position was that it did not wish to re-employ the applicant’s member because he was facing a charge of common assault under the Criminal Code (that event being the one that had led to the interim negative notice).

4         In the face of the respondent’s refusal to re-employ its member the applicant brought an application to the Western Australian Industrial Relations Commission seeking an order for the re-employment of its member. It seeks an interim order that the respondent re-employ its member pending the outcome of its substantive application. The application for the interim order is the subject of this decision.

5         The applicant points to sections 44(6)(ba)(ii) and (bb)(i) Industrial Relations Act 1979 as sources of power under which I might make the interim order sought.

6         In relation to section 44(6)(ba)(ii) Industrial Relations Act 1979 the applicant says that if its member is gainfully employed when the substantive application is heard he will be in a better frame of mind than if not and that this will better “enable arbitration to resolve the matter in question.” I reject that argument as being based on a vague and unconvincing contention.

7         I find myself unable to hold the opinion that an interim order would make a difference to the ability of the Western Australian Industrial Relations Commission to resolve the matter in question at arbitration. The applicant is a union and it will represent its member at the arbitration. It will be responsible for preparation for the hearing. The facts are not complex. There is no evidence that its member will not be able to instruct it properly or that his state of mind will affect the preparation and presentation of the case, let alone that, if there are such complications expected, the interim order would resolve them. The contention is altogether too remote and tenuous.

8         That leave section 44(6)(bb)(i) Industrial Relations Act 1979.

9         The subparagraph provides:

The Commission may, at or in relation to a conference under this section…with respect to industrial matters give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act.

10      This is clearly, by the subparagraph’s use of the words “otherwise authorised to give or make under this Act”, not a source of original power. The subparagraph simply makes it clear that the Western Australian Industrial Relations Commission may exercise all of its power in relation to industrial matters under the Industrial Relations Act 1979 at a conference under section 44 Industrial Relations Act 1979.

11      The respondent’s refusal to employ a person is an industrial matter (see “(c)” of the definition of “industrial matter” in section 7 Industrial Relations Act 1979) and it has long been accepted that section 23(1) Industrial Relations Act 1979, although it does not expressly say as much, gives the Western Australian Industrial Relations Commission the power to order an employer to employ a person it is refusing to employ (see for instance BHP Billiton Iron Ore Pty Ltd v CFMEU [2006] WASCA 49).

12      A question which exercises my mind is whether I may, under section 44(6)(bb)(i) Industrial Relations Act 1979, make an interim order for employment of a person whom an employer is refusing to employ. While the Commission is clearly “otherwise authorised” to make an order for employment in the circumstances of this matter, the question is whether it is “otherwise authorised” to make an order for employment which is of an interim nature or which is subject to further review or which depends for its continuation upon the happening of some other event?

13      The respondent says the Western Australian Industrial Relations Commission is not “otherwise authorised” to make such an order. The respondent says this for the following reasons:

(1)   section 44(6)(bb)(ii) Industrial Relations Act 1979 gives the Western Australian Industrial Relations Commission a specific power to make an interim order in certain circumstances (not present here) and it can be implied from this that section 44(6)(bb)(i) Industrial Relations Act 1979 was not intended to include a power to make interim orders;

(2)   the explanatory memorandum for the Labour Relations Reform Act 2002, which introduced section 44(6)(bb)(ii) Industrial Relations Act 1979, stated at [145] that the new subparagraph had the effect that “interim orders will be available to the Commission but will be limited to those unfair dismissal cases heard through the provisions of section 44”; and

(3)   a power to order employment substantively and a power to order employment on an interim basis are discrete and while the Western Australian Industrial Relations Commission has power to order employment on a permanent and substantive basis there is no power under the Industrial Relations Act 1979 to make an interim order.

14      I remain in two minds about whether the Western Australian Industrial Relations Commission has the power to make an interim order for employment in a refusal to employ case.

15      Section 44(6)(bb)(ii) Industrial Relations Act 1979 does provide that an interim order may be made in an unfair dismissal case. If the Western Australian Industrial Relations Commission was “otherwise authorised” to make such an order it is arguable there would be no need for section 44(6)(bb)(ii) Industrial Relations Act 1979 with the attendant argument being that the Western Australian Industrial Relations Commission must not be “otherwise authorised” to make an interim order in the circumstances of this case.

16      But section 44(6)(bb)(ii) Industrial Relations Act 1979 might be interpreted as providing mere clarification or as importing a different test (“the Commission thinks appropriate”) for the exercise of the power to make an interim order in the circumstances to which the subparagraph applies.

17      It might also be noted that the subparagraph is expressed to not limit section 44(6)(bb)(i) Industrial Relations Act 1979 thus perhaps indicating that it is not to be read as having any particular effect on the proper construction of section 44(6)(bb)(i) Industrial Relations Act 1979. (see for instance Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 679 per Mason J)

18      The paragraph of the explanatory memorandum cited by the respondent is of clear interest but has not been commented upon by the applicant and there is, of course, much that can be debated in relation to the use of such materials in the interpretation of legislation.

19      The concept of there being a power under section 23(1) Industrial Relations Act 1979 to order employment in a refusal to employ case, but for such an order to be time limited or subject to the occurrence or non-occurrence of a particular event, seems odd. To order employment subject to any further order of the Western Australian Industrial Relations Commission is not, at first blush, the kind of order the Western Australian Industrial Relations Commission should or can make under section 23(1) Industrial Relations Act 1979 (it being remembered that under section 44(6)(bb)(i) I am looking for whether the Commission is “otherwise authorised” under the Industrial Relations Act 1979  to make the order sought) as it may not bring finality to the dispute.

20      Then again the Western Australian Industrial Relations Commission is not the kind of jurisdiction where the legislative powers to hear and determine industrial matters should be interpreted in a restrictive way.

21      If I had been required to come to a conclusion on the materials and argument available I would have done so but given that, even if I found I had the power the applicant contends I do, I would not have exercised it in its member’s favour, I am content to leave the question to another day when the Commission has the benefit of fuller argument on the matter.

22      Assuming I had a power to order interim re-employment under section 44(6)(bb)(i) Industrial Relations Act 1979 the application of the principles I find relevant could not possibly result in me exercising it.

23      The principles to be applied, as for any application for an interim order where none are set out by legislation, is whether the applicant has made out a prima facie case and whether the balance of convenience favours the grant of the order.

24      This application is one for a “mandatory injunction” rather than a “prohibitory injunction.” I accept that this makes no difference to the principles to be applied (see Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105) although I note also the passage from a textbook quoted with approval at [85] in the case just cited that “in the application of the normal tests, often, though not always, the fact that the relief sought is mandatory will tilt the balance of convenience in the [respondent’s] favour.”

25      Also I note the questions of a sufficient prima facie case and whether the balance of convenience favours the grant of relief are related and not independent questions.

26      In relation to whether the applicant has a prima facie case I accept that the applicant does not have to show that it is more probable than not that it will succeed at arbitration. However, the strength of the probability required does depend upon the practical consequences likely to flow from the order the applicant seeks.

27      In this case an order for the applicant would result in the respondent being forced to employ as a teacher a person who is facing a criminal charge arising out of an incident involving a student. It is possible that by the time the arbitration occurs that the applicant’s member may have been found not guilty of the charge and that, if the applicant succeeds, I will not be ordering the employment of a person who is facing such a charge but at the moment the practical consequence of the order sought will be as set out above. Even allowing for the presumption of innocence that would be an undesirable outcome for the respondent in its attempts to discharge, and be seen to discharge, its duties to students and the wider community.

28      Although the applicant’s member is obviously suffering the deleterious financial and other effects of having lost his job, and some sympathy may be felt for him given that he lost his job because of an interim negative notice that did not become final against him, as things stand it is my view that this does not, in the scheme of things, outweigh the damage to the standing of the respondent in its attempts to discharge, and be seen to discharge, its responsibility to provide children with a safe and credible environment for care and learning. The balance of convenience is resoundingly against the applicant’s member.

29      The circumstance that has led to the respondent’s refusal to employ him, that he faces a criminal charge arising out of his conduct toward a student, remains and the respondent, and the community which it serves, would be rightfully concerned about such a person being employed as a teacher even once the presumption of innocence is understood and given full weight.

30      Given the strength of the probability of success required, which I find to be higher than what would normally be required and not present here, and the factors relevant to the balance of convenience set out above I would, even if I had the power to grant it, have no hesitation in deciding not to exercise it in favour of the applicant’s member.

31      The application for an interim order is dismissed.