Governing Council of North Metropolitan TAFE v The State School TEACHERS' Union of WA (Incorporated)
[2019] WASCA 120
•16 AUGUST 2019
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: GOVERNING COUNCIL OF NORTH METROPOLITAN TAFE -v- THE STATE SCHOOL TEACHERS' UNION OF WA (INCORPORATED) [2019] WASCA 120
CORAM: BUSS J
MURPHY J
LE MIERE J
HEARD: 13 MARCH 2019
DELIVERED : 16 AUGUST 2019
FILE NO/S: IAC 2 of 2018
BETWEEN: GOVERNING COUNCIL OF NORTH METROPOLITAN TAFE
Appellant
AND
THE STATE SCHOOL TEACHERS' UNION OF WA (INCORPORATED)
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram: SMITH AP, KENNER SC, MATTHEWS C
Citation: THE GOVERNING COUNCIL OF NORTH METROPOLITAN TAFE v STATE SCHOOL TEACHERS' UNION OF WA [2018] WAIRC 00746
File Number : FBA 8 OF 2018
Catchwords:
Industrial law - Appeal against decision of the Full Bench of Western Australian Industrial Relations Commission dismissing appeal from interim order made by the industrial magistrate - Whether majority erred in law in holding that an appeal to the Full Bench does not lie from a decision of an industrial magistrate to order interim relief under s 83(5) and s 83(7) of the Industrial Relations Act 1979 (WA) - Statutory construction - Whether court should dismiss appeal on ground that it has become moot
Legislation:
Industrial Relations Act 1979 (WA), s 83, s 83(5), s 83(7), s 84, s 84(1), s 84(2)
Labour Relations Reform Act 2002 (WA), s 155(1)
Surveillance Devices Act 1998 (WA), s 5(1)(b), s 9(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | A J Sefton & J M Carroll |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | State Solicitor for Western Australia |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Anderson v Pope (1986) 66 WAIG 1563
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Bonan v Hadgkiss (2007) 160 FCR 29
Commissioner of Stamps (South Australia) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
Federal Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573
Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652
Jardin v Metcash Ltd [2011] NSWCA 409
Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438
Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54
Plaintiff S4/2014 v Minister for Immigration (2014) 253 CLR 219
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
BUSS J:
I agree with Le Miere J.
MURPHY J:
I agree with Le Miere J.
LE MIERE J:
Summary
The appellant has appealed from the decision of the Full Bench of the Western Australian Industrial Relations Commission which dismissed its appeal from an interim order made by the industrial magistrate pursuant to s 83(5) and s 83(7) of the Industrial Relations Act 1979 (WA) (the Act) on the ground that the appeal was incompetent. The Full Bench, by majority (Smith AP and Kenner SC), held that the appeal was incompetent because an appeal lies to the Full Bench from a decision of an Industrial Magistrates Court under s 84 of the Act only from a 'decision' of the Industrial Magistrates Court. The interim order made by the industrial magistrate was not considered to be a 'decision' within the meaning of s 84 of the Act.
The appellant appeals to this court on the ground that the majority of the Full Bench erred in law in holding that an appeal to the Full Bench does not lie from a decision of an industrial magistrate to order interim relief under s 83(5) and s 83(7) of the Act.
For the reasons which follow the appeal should be dismissed on the ground that the appeal is moot in that it asks the court to determine issues which are not live as between the parties because the proceedings have been settled.
Proceedings before the industrial magistrate
The interim order made by the industrial magistrate was made in the course of a claim by the respondent union against the appellant employer claiming that the appellant had failed to comply with cl 23.1 of the Western Australian TAFE Lecturers' General Agreement 2014 (the Agreement).
The appellant had instituted disciplinary proceedings against a member of the respondent union, Mr CS. The respondent alleged that the appellant had regard to an audio recording of a conversation between Mr CS and two other employees of the appellant. Further, that the recording and use of the recording was a contravention of s 5(1)(b) and s 9(1) respectively of the Surveillance Devices Act 1998 (WA). The use of the recording in the disciplinary process was also claimed to be a breach of cl 23.1 of the Agreement which, amongst other things, provided that no employee shall be subject to penalties unless a fair procedure was applied. The respondent sought an order imposing a penalty on the appellant for its contravention or failure to comply with the Agreement, an order that the appellant pay to the respondent any penalty imposed upon it and orders restraining the appellant from using the recording in the disciplinary process.
The respondent applied for an interim order pursuant to s 83(5) and s 83(7) of the Act. The appellant dismissed Mr CS from its employment on the day before the hearing of the respondent's application for an interim order. The industrial magistrate made interim orders (Interim Orders) requiring the appellant to reinstate Mr CS to his employment, restraining the appellant from using the audio recording and some incidental orders.
Appeal to the Full Bench
The appellant appealed to the Full Bench from the Interim Orders made by the industrial magistrate on a number of grounds including that the industrial magistrate had no power to make an interim order requiring the appellant to reinstate Mr CS. The Full Bench, by majority, dismissed the appeal on the ground that it was incompetent. The majority found that an appeal to the Full Bench lies from an order or determination of an industrial magistrate which finally determines the application brought to the Industrial Magistrates Court, but not from interim orders which do not finally determine the issue as to whether, if there is found to have been a contravention of the Agreement, final relief of the kind claimed by the respondent could or should be made.
After the decision of the Full Bench but before the institution of the appeal to this court, the dispute between the appellant and the respondent giving rise to the proceeding in the Industrial Magistrates Court was settled. The respondent discontinued its claim. The underlying dispute between the parties has been resolved and the Interim Orders have been dissolved. The respondent informed the court that it did not intend to take part in the appeal and filed a notice to that effect.
Is the appeal moot?
The first issue is whether the court should dismiss the appeal on the ground that it has become moot because the outcome of the appeal will have no practical consequence for the appellant, the respondent or Mr CS.
As a general principle a court should refuse to address an advisory opinion in respect of issues of which there is no longer a controversy between the parties.[1] However the court retains a discretion to continue to hear an appeal in circumstances where the subject matter of the appeal has been rendered moot by reason of a change in circumstances or otherwise.[2]
[1] Bonan v Hadgkiss (2007) 160 FCR 29 (Bonan) [8]; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 [47].
[2] Bonan [8]; Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 438; Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR 54 (Al Masri); Hope Downs Management Services Pty Ltd v Hamersley Iron Pty Ltd [1999] FCA 1652.
The appellant accepts that the subject matter of the appeal has been rendered moot but submitted that the court should exercise its discretion to hear the appeal for the following reasons. First, the scope of the appeal is narrow. Secondly, there is a public interest in resolving the issue of construction raised by the appeal, which has general application and importance beyond the circumstances of this case.
Appeal should be dismissed
Each of the matters raised by the appellant is relevant to the exercise of the court's discretion. As to the scope of the appeal, the amount of judicial resources which would be taken in hearing and determining the appeal is a relevant consideration.[3] I accept that the scope of the appeal is narrow; it is confined to a question of the proper construction of s 84 of the Act. However, the answer to the question of construction raised is not obvious. That is demonstrated by the fact that members of the Full Bench arrived at different decisions. A full consideration of the question raised would require a detailed examination of a number of factors.
[3] Federal Commissioner of Taxation v Industrial Equity Ltd (2000) 98 FCR 573.
Whether the decision under appeal has ramifications which extend beyond the facts of the case in question, and whether it is in the public interest that the issue be resolved are also relevant considerations.[4]
[4] Al Masri.
However, as Campbell J observed in Jardin v Metcash Ltd,[5] even where a case solely raises a question of law, it will only be in rare circumstances that a court will be justified in reaching a decision on a legal question that has no practical consequences for either of the parties.
[5] Jardin v Metcash Ltd [2011] NSWCA 409 [35].
In this case, there is no evidence before this court that there is a pressing need for the court to express its opinion on the question of construction raised by the appeal. The appellant does not submit that whether a party may appeal to the Full Bench from an interim order under s 83(5) and s 83(7) of the Act is an issue in cases pending before the Full Bench or arises with any frequency.
Importantly, the appellant asks this court to determine the question of the proper construction of s 83(5), s 83(7) and s 84(1) of the Act contrary to the decision of a majority of the Full Bench in circumstances where there is no contradictor before the court. The construction question raised by the appellant should be determined by the court in a case in which there is a party before the court with a real interest in advancing the construction adopted by the majority of the Full Bench. Courts are more likely to be led into error where there is no contradictor to bring all relevant legal issues before the court.
This court has a discretion whether or not to hear the appeal notwithstanding that it is moot. However, the discretion to allow a moot appeal to proceed should be exercised cautiously. I conclude that no sufficient case for the exercise of such a discretion has been made out. I would therefore dismiss the appeal. Nevertheless, the appeal raises a legal issue concerning the jurisdiction of the Full Bench and I think it right to touch on the Full Bench's judgment, although not to embark on the detailed examination which would have been necessary if the issues before the Full Bench were still live.
The construction issue
The question of construction raised by the appeal concerns the scope of the right of appeal to the Full Bench from a decision of an industrial magistrate. In particular, whether an appeal lies under s 84(2) of the Act from an interim order of an industrial magistrate pursuant to s 83(5) and s 83(7) of the Act. Before considering the scope of the right of appeal under s 84(2) of the Act, it is necessary to refer to s 83 of the Act which is concerned with the enforcement of awards and other industrial instruments.
Section 83 of the Act relevantly provides:
(1)Subject to this Act, where a person contravenes or fails to comply with a provision of an instrument to which this section applies any of the following may apply in the prescribed manner to an industrial magistrate's court for the enforcement of the provision ‑
…
(4)On the hearing of an application under subsection (1) the industrial magistrate's court may, by order ‑
(a)if the contravention or failure to comply is proved ‑
(i)issue a caution; or
(ii)impose such penalty as the industrial magistrate's court thinks just but not exceeding $2 000 in the case of an employer, organisation or association and $500 in any other case; or
(b)dismiss the application.
(5)If a contravention or failure to comply with a provision of an instrument to which this section applies is proved against a person as mentioned in subsection (4) the industrial magistrate's court may, in addition to imposing a penalty under that subsection, make an order against the person for the purpose of preventing any further contravention or failure to comply with the provision.
…
(7)An interim order may be made under subsection (5) pending final determination of an application under subsection (1).
(8)A person shall comply with an order made against him or her under subsection (5).
Section 84 provides for an appeal from the Industrial Magistrates Court to the Full Bench. Section 84 provides:
(1)In this section decision includes a penalty, order, order of dismissal, and any other determination of an industrial magistrate's court, but does not include a decision made by such a court in the exercise of the jurisdiction conferred on it by section 96J.
(2)Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of an industrial magistrate's court.
…
The appellant submitted that an 'order' in s 84(1) includes an interim order made under s 83(5) and s 83(7) and is therefore a 'decision' within the definition of 'decision' in s 84(1). If that is correct, then an appeal lies under s 84(2) to the Full Bench from an interim order made by the Industrial Magistrates Court.
Full Bench decision
The Full Bench, by majority, found that a 'decision' in s 84(1) of the Act does not include an interim order made under s 83(5) and s 83(7) and therefore an appeal did not lie to the Full Bench from the Interim Orders. The appellant submitted that the majority of the Full Bench reached that decision by applying the decision of the Industrial Appeal Court in Anderson[6] which the majority said is a decision binding upon the Full Bench.
[6] Anderson v Pope (1986) 66 WAIG 1563 (Anderson).
The question before the court in Anderson was whether, under s 84 of the Act, an appeal lay to the Full Bench from a decision of an industrial magistrate that a respondent had a case to answer.[7] The court unanimously held that no appeal lies to the Full Bench in those circumstances.[8]
[7] Anderson (1565) (Olney J).
[8] Anderson (1565) (Olney J), (1567) (Rowland J) and (1567) (Franklyn J, agreeing with both Olney and Rowland JJ).
The appellant submitted that Anderson did not decide that no appeal lies to the Full Bench from a decision of an industrial magistrate to make an interim order under s 83(5) and s 83(7) of the Act. The Act did not confer any power to make interim orders at the time that Anderson was decided. The appellant submitted that at the time of Anderson, the jurisdiction of the industrial magistrate was essentially the jurisdiction to enforce instruments under s 83 of the Act, whereas, up until 1985, the jurisdiction of industrial magistrates extended to exercising criminal jurisdiction for offences under the Act. At the time that this criminal jurisdiction was removed, the term 'conviction' was removed from the definition of 'decision' within s 84.
Appellant's construction has substance
The High Court has emphasised that the rules of statutory construction require primary attention to be directed to the text of the relevant provisions.[9] The court must have regard to the language of the statutory instrument viewed as a whole and considered in its context.[10] The context includes other related statutory provisions, legislative history and the purpose of the statutory provision.
[9] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 [39].
[10] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69]; Plaintiff S4/2014 v Minister for Immigration (2014) 253 CLR 219 [42].
The text of s 83 and s 84 of the Act points to a 'decision' including an interim order made under s 83(5) and s 83(7). The definition of 'decision' in s 84 includes 'order'. An 'interim order' is a species of order. Section 83(7) provides that an interim order may be made under s 83(5) which provides, amongst other things, for the industrial magistrate's court to 'make an order … for the purpose of preventing any further contravention or failure to comply with the provision'.
In Anderson, the Industrial Appeal Court found that the determining characteristic of a 'decision' within the meaning of s 84 of the Act was a decision which finally determined and disposed of the matter before the court. The relevant statutory provisions have been substantially amended since Anderson was decided. Importantly, amendments in 2002[11] expanded the enforcement powers of industrial magistrates, including the enactment of the power for an industrial magistrate to grant injunctive relief under s 83(5) and s 83E(2) and a
power to grant such relief on an interim basis under s 83(7) and s 83E(5).
[11] Labour Relations Reform Act 2002 (WA) s 155(1).
The effect of an amending Act may be to alter the meaning which remaining provisions of the amended Act bore before the amendment.[12] Whatever meaning s 84 of the Act may have had before the amendment of s 83, it must now be construed in light of that amendment. The decision of the Industrial Appeal Court in Anderson was that 'decision' in s 84 of the Act as it then stood did not extend to a finding or ruling given in the course of proceedings which falls short of a final determination of the application. Anderson is not determinative of whether a 'decision' in s 84(1) after the amendments of 2002 extends to an interim order made under s 83(5) and s 83(7).
[12] Commissioner of Stamps (South Australia) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453, 463.
On the face of it, an interim order made pursuant to s 83(5) and s 83(7) is an 'order' and falls within the definition of 'decision' in s 84(1).
However, the majority of the Full Bench considered the enactment of s 83(5) and s 83(7) by the amendments of 2002 and concluded that the amendments did not materially affect the role of the industrial magistrate's court from the role of the industrial magistrate considered in Anderson.[13] This court should not decide the construction question because it has not had the benefit of argument from a party supporting the interpretation adopted by the Full Bench.
[13] Smith AP at [37] ‑ [46]; Kenner SC at [85] ‑ [87].
Conclusion
The appeal should be dismissed on the ground that it has become moot.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Western Australian Industrial Appeal Court.
FN
Research Associate to the Honourable Justice Buss16 AUGUST 2019
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