Australian Education Union v Department of Education and CHILDREN'S SERVICES

[2009] SASC 208

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

AUSTRALIAN EDUCATION UNION v DEPARTMENT OF EDUCATION AND CHILDREN'S SERVICES

[2009] SASC 208

Reasons for Decision of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Kelly)

16 July 2009

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for permission to appeal against decision of Full Court of the Industrial Relations Court - Full Court determined questions of law referred to it by the Industrial Relations Commission - Full Court concluded that Minister of Education could appoint teachers pursuant to the power conferred by s 9(4) (now repealed) of the Education Act 1972 (SA) as an alternative to appointment as an officer of the teaching service pursuant to s 15(1) of the Act - entitlements of teachers depended on whether the teacher was an officer of the teaching service - whether permission to appeal should be granted.

Held:  Issue raised by proposed appeal of practical importance, given effect of appointment on statutory entitlements of teachers - arguable question of law - permission to appeal granted.

Fair Work Act 1994 (SA) s 191(1); Education Act 1972 (SA) s 9(4), s 15(1), referred to.

AUSTRALIAN EDUCATION UNION v DEPARTMENT OF EDUCATION AND CHILDREN'S SERVICES
[2009] SASC 208

Full Court:      Doyle CJ, Bleby and Kelly JJ

1. THE COURT:      This is an application for permission to appeal to the Full Court of the Supreme Court against a decision by the Full Court of the Industrial Relations Court.

2. Permission to appeal is required by s 191(1)(b) of the Fair Work Act 1994 (SA), because the appeal is not an appeal “…based on an alleged excess or deficiency of jurisdiction”.

3. The application has been considered by the Full Court comprising the Chief Justice, Bleby J and Kelly J.

4. The Court has considered the reasons of the Full Court of the Industrial Relations Court and the applicant’s summary of argument. 

5. The Full Court decided a question of law referred to it by a member of the Industrial Relations Commission.

6. The question of law required the Full Court to decide whether the Minister of Education, when appointing a teacher in the exercise of powers conferred on the Minister by the Education Act 1972 (SA) (“the Act”), had the choice of appointing a teacher as an officer of the teaching service under s 15(1) of that Act or appointing a teacher under s 9(4) of that Act, when sub-s (4) was in force, without the teacher in question becoming a member of the teaching service for the purposes of the Act.

7. The question appears to be of some practical and industrial significance, having regard to the statutory entitlements of a teacher who is a member of the teaching service.

8. The Full Court of the Industrial Relations Court was unanimously of the opinion that the Minister had that choice.  Its reasons indicate that it had no real doubt about the matter.

9. However, the Court is satisfied that there is an arguable question of law, and that the matter raised by the question is of some practical significance.

10. Accordingly, the Court grants permission to appeal.