GABLE and STEEL CAP RECRUITMENT PTY LTD
[2016] WASAT 54
•18 MAY 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: WORKERS COMPENSATION AND INJURY MANAGEMENT REGULATIONS 1982
CITATION: GABLE and STEEL CAP RECRUITMENT PTY LTD [2016] WASAT 54
MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 18 MAY 2016
FILE NO/S: VR 14 of 2016
BETWEEN: DAMON GABLE
Applicant
AND
STEEL CAP RECRUITMENT PTY LTD
Respondent
Catchwords:
Application misconceived - Tribunal has no jurisdiction
Legislation:
Occupational Safety and Health Act 1984 (WA), s 3, s 51G, s 51G(2)
State Administrative Tribunal Act 2004 (WA), s 47
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Regulations 1982 (WA), reg 41(a)
Result:
Application dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA)
Summary of Tribunal's decision:
The applicant filed an application which should properly have been brought under the Workers' Compensation and Injury Management Act 1981 (WA). The State Administrative Tribunal has no jurisdiction.
Accordingly, the application was dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA).
Category: B
Representation:
Counsel:
Applicant: In Person
Respondent: Mr C Treasure
Solicitors:
Applicant: N/A
Respondent: JarmanMcKenna
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 25 January 2016, Mr Damon Gable filed an application dated 24 January 2016 with the Tribunal.
It was stated to be an application under the Workers' Compensation and Injury Management Regulations 1982 (WA) reg 41(a) for review of a decision to refuse or renew registration.
On 29 March 2016, the Tribunal ordered that by 5 April 2016, Steel Cap Recruitment Pty Ltd (Steel Cap) must file and serve with the Tribunal and give to Mr Gable, its submissions under s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Secondly, by 12 April 2016, Mr Gable must file and serve with the Tribunal and Steel Cap his response. Thirdly, that the matter was to be determined on the documents.
History of the matter
The history of the matter is set out in Steel Cap's written submissions.
1.The respondent is a labour hire company. The claimant was engaged by respondent as a casual labourer. The claimant alleges that on 15 April 2014 he sustained a left hand injury when he allegedly received an electric shock at work.
2.On 16 April 2014 the claimant submitted a claim pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the WCIM Act). The claimant returned to work after 16 April 2014 and commenced employment with a new employer.
3.On 24 April 2014, the respondent's workers compensation insurer, AAI Limited (t/as GIO) (GIO) issued a Form 3A pursuant to the WCIM Act, providing notice that it accepted liability for the workers' compensation claim in respect of medical expenses.
4.On 25 June 2015, the claimant was issued a progress certificate of capacity. The claimant was certified unfit for work as a result of the injury sustained on 15 April 2014, and he thereafter sought the payment of weekly payments under the WCIM Act.
5.On 9 July 2015, GIO issued a Form 3C pursuant to section 57A of the WCIM Act, notifying the claimant that liability for his claim for weekly payments under the WCIM Act was suspended because it was yet to be determined whether he had 'sustained a personal injury by accident in the course of his employment and therefore an injury as defined by s.5 of the Act' and because a medical report was required.
6.On or about 9 December 2015, an application for conciliation at WorkCover's Conciliation Service was filed, on behalf of the claimant. The claimant sought the payment of weekly payments from June 2015.
7.A conciliation conference was held at WorkCover's Conciliation Service on 8 January 2016. The conciliation conference was adjourned to allow GIO to arrange for the claimant to attend a medical examination pursuant to sections 64 or 65 of the WCIM Act.
8.The adjourned conciliation conference was held on 26 February 2016. Due to the claimant's failure to attend a medical appointment, the respondent and GIO were not in a position to advance matters at the conciliation conference.
9.On 29 February 2016, WorkCover issued a certificate of outcome for the conciliation conference that was held on 26 February 2016, stating that conciliation has been concluded.
Section 47 and s 50 of the SAT Act
Section 47 of the SAT Act, provides that the Tribunal may order that the proceeding be dismissed or struck out if it is:
a)frivolous, vexatious, misconceived or lacking in substance; or
b)being used for an improper purpose; or
c)otherwise an abuse of process.
Arbitrator's exclusive jurisdiction under the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act)
As the respondent states in its submission:
12.The exclusive jurisdiction of arbitrators under the WCIM Act is dealt with in section 176 of the WCIM Act which provides as follows:
dispute means
(a)a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;
(3)Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.
13.Section 182ZI of the WCIM Act provides that:
Subject to sections 182ZJ and 182ZK a conciliation decision is not subject to an appeal or amenable to judicial review.
14.The Tribunal does not have jurisdiction with respect to the WCIM Act. The Claimant's Application.
15.The claimant has made an application under the Workers' Compensation and Injury Management Regulations 1982 (WCIM Regulations), regulation 41(a).
Regulation 41(a) provides the following:
A person aggrieved by a decision of WorkCover WA to -
(a)refuse an application for registration or for renewal of registration ... may apply to the State Administrative Tribunal for a review of that decision.
16.The Tribunal's jurisdiction is in relation to Part 4 of the WCIM Regulations, which applies to 'Registered Agents'. The claimant is not a Registered Agent, and his dispute to the Tribunal does not relate to an application for registration or for renewal of registration pursuant to Part 4 of the WCIM Regulations.
The Tribunal accepts those submissions.
Mr Gable's submissions
Mr Gable's submissions referred to the provisions of the Occupational Safety and Health Act 1984 (WA) (OSH Act).
The sections identified by Mr Gable in his submissions include s 35C and s 35D which refer to a 'Tribunal'.
Section 3 of the OSH Act provides that a 'Tribunal has the meaning given to that term in s 51G(2)'.
Section 51G of the OSH Act provides:
(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), 51A(1) and 61A.
(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.
The Commission referred to in s 51G(2) of the OSH Act is the 'Commission for Occupational Safety and Health' established under the OSH Act (s 3). The State Administrative Tribunal is not that Commission.
Dismissal or strike out of application
The State Administrative Tribunal only has the jurisdiction or power conferred on it by statute. The State Administrative Tribunal does not have any jurisdiction or power to deal with Mr Gable's application. It is misconceived. Accordingly, it should be struck out pursuant to s 47 of the SAT Act.
Order
1.The application is dismissed pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA).
I certify that this and the preceding [13] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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