Director General, Department of Education v United Voice WA
[2015] WASCA 195
•23 SEPTEMBER 2015
DIRECTOR GENERAL, DEPARTMENT OF EDUCATION -v- UNITED VOICE WA [2015] WASCA 195
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2015] WASCA 195 | |
| Case No: | IAC:1/2015 | 9 SEPTEMBER 2015 | |
| Coram: | BUSS J LE MIERE J MURPHY J | 23/09/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Section 27(1)(n) of the Industrial Relations Act 1979 (WA) confers on the Full Bench the power to extend the time within which a party may institute an appeal under s 49 of the Act | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR GENERAL, DEPARTMENT OF EDUCATION UNITED VOICE WA |
Catchwords: | Extending time in which to institute appeal Power of the Full Bench of the Western Australian Industrial Relations Commission to extend the time in which a party may institute an appeal Statutory construction of s 49(3) of the Industrial Relations Act 1979 (WA) |
Legislation: | Conciliation and Arbitration Act 1904 (Cth) Government and Related Employees Appeal Tribunal Act 1980 (NSW) Industrial Relations Act 1979 (WA) |
Case References: | Patterson & James v Public Service Board of NSW [1984] 1 NSWLR 237 Re Coldham; Ex parte Australian Building Construction Employees' and Builders Labourers Federation (1985) 159 CLR 522 Saldanha v Fujitsu Australia Ltd [2009] WASCA 119 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : DIRECTOR GENERAL, DEPARTMENT OF EDUCATION -v- UNITED VOICE WA [2015] WASCA 195 CORAM : BUSS J
- LE MIERE J
MURPHY J
- Appellant
AND
UNITED VOICE WA
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : J H SMITH ACTING PRESIDENT
- A R BEECH CHIEF COMMISSIONER
S J KENNER COMMISSIONER
Citation : [2014] WAIRC 1361
File No : FBA 9 of 2014
Catchwords:
Extending time in which to institute appeal - Power of the Full Bench of the Western Australian Industrial Relations Commission to extend the time in which a party may institute an appeal - Statutory construction of s 49(3) of the Industrial Relations Act 1979 (WA)
Legislation:
Conciliation and Arbitration Act 1904 (Cth)
Government and Related Employees Appeal Tribunal Act 1980 (NSW)
Industrial Relations Act 1979 (WA)
Result:
Section 27(1)(n) of the Industrial Relations Act 1979 (WA) confers on the Full Bench the power to extend the time within which a party may institute an appeal under s 49 of the Act
Category: B
Representation:
Counsel:
Appellant : Mr D J Matthews
Respondent : Mr S A Millman
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Slater & Gordon Lawyers
Case(s) referred to in judgment(s):
Patterson & James v Public Service Board of NSW [1984] 1 NSWLR 237
Re Coldham; Ex parte Australian Building Construction Employees' and Builders Labourers Federation (1985) 159 CLR 522
Saldanha v Fujitsu Australia Ltd [2009] WASCA 119
1 BUSS J: I agree with Le Miere J.
2 LE MIERE J: The question raised by this case is whether s 27(1)(n) of the Industrial Relations Act 1979 (WA) (the Act) confers on the Full Bench of the Western Australian Industrial Relations Commission the power to extend the time within which a party may institute an appeal under s 49 of the Act to the Full Bench from a decision of the Commission.
Decision of Full Bench
3 Ms Spence, who is a member of the respondent union, is employed as an education assistant by the appellant, the Director General, Department of Education. The respondent contends that the duties carried out by Ms Spence are teaching duties. The appellant contends that Ms Spence is employed as an education assistant and not a teacher. The respondent initiated an application for a compulsory conference under s 44 of the Act. The industrial matter was not settled and the Commission heard and determined the dispute. The Commission dismissed the respondent's application. The respondent filed a notice of appeal.
4 Section 49(3) of the Act provides that:
An appeal under this section shall be instituted within 21 days of the date of the decision against which the appeal is brought.
- The respondent filed its notice of appeal to the Full Bench three days out of time and on the same day it filed the notice of appeal the respondent also filed an application seeking an order granting the respondent leave to file an appeal out of time. By a majority the Full Bench extended the time for the respondent to institute the appeal against the decision of the Commission, allowed the appeal, and remitted the case to the Commission for further hearing and determination. In dissent, Kenner C found that the Full Bench did not have power to grant an extension of time within which to institute the appeal.
This appeal
5 The appellant now appeals to this court under s 90 of the Act from the decision of the Full Bench. Section 90(1) provides that an appeal lies to this court on the grounds set out in subpars (a), (b) or (c) but upon no other ground. The appellant brings this appeal under s 90(1)(b), that is on the ground that the decision of the Full Bench is erroneous in law in that there has been an error in the construction or interpretation of the Act in the course of making the decision appealed against. The appellant says that on its proper construction s 49(3) of the Act precludes an appeal to the Full Bench that is not instituted within 21 days of the date of the decision against which the appeal, and the Full Bench does not have power to extend that period.
The statutory provisions
6 Section 49(2) provides that subject to that section, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission. Section 49(3), which I have set out above, provides that an appeal shall be instituted within 21 days of the date of the decision against which the appeal is brought. The Full Bench, by a majority, found that s 27(1)(n) of the Act empowers the Full Bench to extend the time within which a party may institute an appeal under s 49 to the Full Bench from a decision of the Commission. Section 27(1) provides:
Except as otherwise provided in this Act, the Commission may, in relation to any matter before it -
…
(n) extend any prescribed time or any time fixed by an order of the Commission;
Power of Commission 'in relation to any matter before it'
7 Section 27(1) of the Act provides that, except as otherwise provided in the Act, the Commission may, 'in relation to any matter before it' exercise any of the powers set out in subpars (a) to (v) which includes the power under (n) to extend time. The phrase 'in relation to any matter before it' has a wide and general application. In Re Coldham; Ex parte Australian Building Construction Employees' and Builders Labourers Federation (1985) 159 CLR 522, the High Court considered whether s 41(1)(m) of the Conciliation and Arbitration Act 1904 (Cth) empowered the Australian Conciliation and Arbitration Commission to extend the time for instituting an appeal from the Commission to the Full Bench of the Commission. Section 41(1) gave the Commission wide powers in relation to an industrial dispute and s 41(2) provided that a reference in s 41(1) to an industrial dispute shall, unless the contrary intention appears, be read as including a reference to 'any other proceedings before the Commission'. The powers given to the Commission by s 41(1) included the power to 'extend any prescribed time'. In a unanimous judgment the High Court held that the power given by s 41(1)(m) to extend time applied to the hearing of an appeal at all its stages, including a hearing of the question whether the appeal has been properly instituted and the power given by s 41(1)(m) to extend time could be exercised after the prescribed time which it is sought to extend has expired. The court said:
Section 41 applies 'in relation to' 'any … proceedings before the Commission'. The word 'proceedings' has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time. If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that the notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by s 41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of s 41 are inapplicable to the particular proceedings in question (528 - 529).
8 The words 'in relation to any matter before [the Commission]' are at least as wide as the words 'in relation to … any … proceedings before the Commission'. They extend to at least an application for an extension of time for instituting an appeal to the Full Bench from a decision of the Commission.
Power to extend 'any prescribed time'
9 The power conferred on the Commission by s 27(1)(n) includes the power to 'extend any prescribed time'. Any 'prescribed time' in subpar (n) refers to any time prescribed, that is laid down as a rule or a course to be followed, in the Act or the regulations made under the Act. The time laid down in s 49(3) within which an appeal is to be instituted is a 'prescribed time' within the meaning of s 27(1)(n) read with the definition of 'prescribed' in s 5 of the Interpretation Act 1984 (WA).
10 The plain words of s 27(1)(n) of the Act empower the Full Bench to extend the time within which an appeal under s 49 to the Full Bench from a decision of the Commission may be instituted unless the provisions of the Act otherwise provide. Further, the power conferred on the Commission by s 27(1)(n) to 'extend any prescribed time' may be exercised after the 'prescribed time' has elapsed. See s 28 of the Act.
Appellant's argument - s 49(3) otherwise provides
11 The appellant submits that s 49(3), having regard to the objects and policy of the Act, 'otherwise provides'. That is, on the proper construction of s 49(3) of the Act, s 27(1)(n) does not empower the Full Bench to extend the time for a party to institute an appeal under s 49 from a decision of the Commission. The appellant submits it is clear, given the legislative policy of the Act, that the time limit in s 49(3) is a prescribed time that Parliament did not intend the Commission to have power to extend. The appellant's argument rests heavily on the decision of this court in Saldanha v Fujitsu Australia Ltd [2009] WASCA 119 and the analysis of the policy of the Act in the judgment of Wheeler JA, with whom Pullin JA and Le Miere J agreed.
Saldanha and the policy of the Act
12 Saldanha concerned an appeal from a decision of the Full Bench to the Industrial Appeal Court. Section 90(2) of the Act provides that an appeal from a decision of the Full Bench to the Industrial Appeal Court 'shall be instituted within 21 days from the date of the decision against which the appeal is brought'. Ms Saldanha filed a notice of appeal out of time and applied for an extension of time within which to appeal. It was common ground that the Act contains no express power to extend the time within which an appellant may appeal to the Industrial Appeal Court. Therefore, the question raised was whether any power to extend time may be implied from the Act. The court found that it cannot.
13 In the course of her judgment Wheeler JA referred to Patterson & James v Public Service Board of NSW [1984] 1 NSWLR 237, a decision of the Court of Appeal of New South Wales in which the court found that the provision of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) s 55 that an appeal on a question of law from the Tribunal to the Court of Appeal shall be made within 21 days after the Tribunal's decision is mandatory, and no jurisdiction exists to extend the time to bring such an appeal. In the course of referring to Patterson Wheeler JA said that in Patterson Moffitt P considered the subject matter of the Act to be of significance. The Act therein considered dealt broadly with aspects of public service organisation, including questions of circumstances in which an officer of the public service might be dismissed. Moffitt P considered that policy considerations suggested that there was a legislative policy of ensuring certainty in relation to decisions of that kind, once the time limit for appeal had passed. Wheeler JA said that similar policy considerations may be discerned in the Act. Her Honour said that the 'objects' section, s 6, places emphasis on negotiation and agreement as a means of settling disputes. Her Honour said that s 90, which invests the court with jurisdiction to hear appeals from the Full Bench, confers jurisdiction only in the very limited circumstances stated. Her Honour considered that, taken together, these provisions indicate a legislative policy that negotiation rather than litigation is preferable, and that resort to the Industrial Appeal Court is to be permitted only in strictly limited circumstances. Wheeler JA said it would be consistent with that policy that this court would not have power to extend time and the reasons in Patterson led to a conclusion that the appeal was incompetent.
14 The appellant says that the court in Saldanha interpreted the policy of the Act generally and for all purposes. The appellant submits that the court's decision in Saldanha in relation to the legislative policy of the Act is to the effect that Parliament intended time limits provided for in the Act in relation to appeals be strictly complied with and that appeals brought outside those time limits are incompetent.
15 In my opinion the observations of Wheeler JA about the policy of the Act do not assist the appellant in this appeal. First, the court in Saldanha was concerned with whether or not a power to extend time within which to appeal from the Full Bench to the Industrial Appeal Court may be implied from the Act. The question in this case is whether or not s 49(3) of the Act is a provision which excludes the application of s 27(1)(n). The present case is concerned with the proper construction of express provisions of the Act and not, as in Saldanha, with whether a power may be implied.
16 Secondly, the legislative policy referred to by Wheeler JA is not inconsistent with the Full Bench having power to extend time for an appeal to the Full Bench. Wheeler JA referred to two aspects of the legislative policy of the Act. First, the objects section, s 6, places emphasis on negotiation and agreement as a means of settling disputes. The Commission, which includes the Full Bench, is constituted to give effect to those objects. Under s 49 an appeal lies to the Full Bench from any final decision of a single commissioner. Further, an appeal lies from a finding, that is 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, if in the opinion of the Full Bench the matter is of such importance that in the public interest an appeal should lie. See s 49(2) and s 49(2a) read with the definitions of 'decision' and 'finding' in s 7(1) of the Act. An appeal under s 49 is an appeal by way of rehearing. By contrast, an appeal to the Industrial Appeal Court is confined to the very limited circumstances referred to and does not extend to an appeal concerning the merits of the decision of the Full Bench. The policy of the Act is that industrial matters should be dealt with and resolved by the Commission, including the Full Bench, and the only appeals which are to go to the Industrial Appeal Court are appeals on the ground that the matter the subject of the decision is not an industrial matter, or there has been an error in the construction of any Act, regulation, award, industrial agreement or order or that the appellant has been denied the right to be heard. The policy is to severely limit appeals to the Industrial Appeal Court but, in general, not to limit appeals to the Full Bench of the Commission.
Conclusion
17 Interpreting a statutory provision requires consideration of its text, its context and its purpose. The plain meaning of s 27(1)(n) of the Act is that in any matter before it, which includes an application for an extension of time to appeal from the decision of a single commissioner to the Full Bench, the Commission, which includes the Full Bench, may extend any prescribed time, which includes the time prescribed by s 49(3) for instituting an appeal to the Full Bench, unless the Act otherwise provides. Section 49(3) does not expressly otherwise provide. A consideration of the text, context and objects of the Act, including the policy of the Act in emphasising dealing with industrial matters by negotiation and agreement, does not lead to the conclusion that s 49(3) impliedly excludes the application of s 27(1)(n) to an appeal under s 49 such that the Full Bench does not have power to extend time for an appeal from a single commissioner to the Full Bench. Section 27(1)(n) of the Act confers on the Full Bench the power to extend the time within which a party may institute an appeal under s 49 of the Act. The power may be exercised after the prescribed time has elapsed: s 28. The appeal must be dismissed.
18 MURPHY J: I agree with Le Miere J.