Landsheer v Morris Corporation (WA) Pty Ltd - [2014] WASCA 186

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT

CITATION: LANDSHEER -v- MORRIS CORPORATION (WA) PTY LTD [2014] WASCA 186

CORAM: BUSS J
LE MIERE J
KENNETH MARTIN J

HEARD: 25 AUGUST 2014

DELIVERED : 20 OCTOBER 2014

FILE NO/S: IAC 1 of 2014

BETWEEN: JOHANNA LANDSHEER
Appellant
AND
MORRIS CORPORATION (WA) PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram :SMITH AP

SCOTT ASC
MAYMAN C

Citation :LANDSHEER v MORRIS CORPORATION (WA) PTY LTD [2014] WAIRC 34

Catchwords:

Industrial law - Contractual benefits claim under common law - Contract of employment - Jurisdiction to appeal - No error of statutory construction by Full Bench - Appeal incompetent

Legislation:

Industrial Relations Act 1979 (WA), s 29(1)(b)(ii), s 90(1)(b)

Result:

Application upheld
Appeal dismissed for want of jurisdiction

Category: B

Representation:

Counsel:

Appellant: Mr T Hammond (counsel)
Respondent: Mr A Cameron (agent)

Solicitors:

Appellant: Fiocco's Lawyers
Respondent: Australian Mines and Metals Association

Case(s) referred to in judgment(s):

BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191
BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers [2006] WASCA 49
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337
Commonwealth Bank of Australia v Barker [2014] HCA 32
Landsheer v Morris Corporation (WA) Pty Ltd [2013] WAIRC 574
Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 34
Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451
Personnel Contracting Pty Ltd T/As Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers [2004] WASCA 312
Robertson v Civil Service Association of Western Australia Inc [2003] WASCA 284
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
United Construction Pty Ltd v Birighitti [2003] WASCA 24
University of Western Australia v Gray [2009] FCAFC 116; (2009) 259 ALR 224

BUSS J: On 7 March 2014, the respondent applied to this court for the summary dismissal of the appeal on the ground that this court does not have jurisdiction to hear the appeal.
I am satisfied that this court does not have jurisdiction and that the appeal must therefore be dismissed.

The background facts and circumstances

The background facts and circumstances are set out in the reasons of Kenneth Martin J (with whom Le Miere J has expressed his agreement). I will not repeat them except to the extent necessary to explain my reasons.
On 9 August 2012, the appellant lodged an application with the Western Australian Industrial Relations Commission (the Commission) claiming that the respondent owed her unpaid wages under a contract of employment. Commissioner JL Harrison heard the application and dismissed it. See Landsheer v Morris Corporation (WA) Pty Ltd [2013] WAIRC 574.
The appellant's appeal to the Full Bench of the Commission was also dismissed. See Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 34.

The appellant's grounds of appeal to this court

The appellant relies on three grounds in her appeal to this court.
The grounds, without the supporting particulars, read:
Ground 1:
In coming to their finding that [the] Appellant was not denied a contractual benefit pursuant to s 29(1)(b)(ii) of the Act (see [49]), the Full Bench erred in law in concluding that the terms of the Appellant's contract of employment were confined to what was set out in a written agreement between the employee and the employer (the 'Contract' as defined by the Full Bench at [10] of their reasons, but referred to in these grounds as the 'agreement').
Ground 2:
Having erred in failing to take into account relevant surrounding circumstances in determining the material terms of the contract of employment, the Full Bench erred in law in arriving at a conclusion that 'the principle of "wages‑work" bargain … does not extend to a right to be paid for every hour of work' in the context of the Appellant's common law contract of employment that was the subject of this dispute: See reasons at [46]. (original emphasis)
Ground 3:
The Full Bench erred in law by concluding that '"all up" rates of pay in employment contracts are not uncommon' (at [46]) and that there was 'no scope to imply a term on the grounds of fact of a right to "reasonable remuneration for each hour of work"' (at [48]) when there was no evidence before the Full Bench, or the Commission to support such a finding. (original emphasis)

The relevant provisions of the Industrial Relations Act 1979 (WA)

The relevant provisions of the Industrial Relations Act 1979 (WA) (the Act), for the purposes of this appeal, are as follows.
Division 2 of pt II of the Act is headed 'General jurisdiction and powers of the Commission' and comprises s 22A ‑ s 36.
Section 23(1) provides that, subject to the Act, the Commission 'has cognizance of and authority to enquire into and deal with any industrial matter'.
The term 'industrial matter' is defined in s 7(1) to mean, relevantly:
any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to ‑
(a)the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;
(b)the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment.
Section 29 specifies by whom an 'industrial matter' may be referred to the Commission. By s 29(1):
An industrial matter may be referred to the Commission ‑
(a)in any case, by ‑
(i)an employer with a sufficient interest in the industrial matter;
(ii)an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or
(iii)the Minister;
and
(b)in the case of a claim by an employee ‑
(i)that he has been harshly, oppressively or unfairly dismissed from his employment; or
(ii)that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment,
by the employee.
Part IV of the Act is headed 'Western Australian Industrial Appeal Court' and comprises s 85 ‑ s 92.
This court's jurisdiction is specified in s 90(1), which provides:
Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session ‑
(a)on the ground that the decision is in excess of jurisdiction in that the matter the subject of the decision is not an industrial matter;
(b)on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c)on the ground that the appellant has been denied the right to be heard,
but upon no other ground.
The other provisions of s 90 are not relevant in determining whether this court has jurisdiction to hear this appeal.

The appellant's submissions

The appellant asserts that this court has jurisdiction under s 90(1)(b) of the Act.
Counsel for the appellant, in his written submissions, argued that:
(a)the Full Bench failed 'to properly interpret and define' the term 'contract', within s 29(1)(b)(ii) of the Act;
(b)as a result of that failure, the appellant 'was denied a contractual benefit to which she was otherwise entitled; namely, payment for additional hours she was ordered by [the respondent] to work over a period of approximately two years';
(c)if the Full Bench 'had properly applied established principles of … contract law … the appellant would have satisfied the conditions of s 29(1)(b)(ii) of the Act and been entitled to damages, namely a payment of an additional $67,479.46'; and
(d)because the Full Court 'was in error in their identification of the material terms of the employment contract, their application of [s 29(1)(b)(ii)] of the Act was in error; and the appellate jurisdiction of this court is accordingly enlivened: see s 90(1)(b) of the Act'.
At the hearing of the respondent's application for the summary dismissal of the appeal, counsel for the appellant contended that:
(a)s 29(1)(b) of the Act requires the Full Bench not to make an error in determining the terms of the contract of employment in question or the employee's entitlement under the contract; and
(b)if the Full Bench makes either or both of those errors, the Full Bench will have infringed s 29(1)(b) because the employee's claim will not have been accepted and determined by the Commission; that is, although the employee's claim will have been referred to the Commission, the Commission will not have accepted and determined the claim because any purported acceptance and determination of it will have been vitiated by either or both of the errors (appeal ts 11 ‑ 12).
Counsel for the appellant submitted at the hearing that his contention was supported by the decision of this court in Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114.

The merits of the appellant's submissions

The appellant's submissions in relation to s 29(1)(b) of the Act, and the application of that provision in this appeal, are without merit.
It was agreed between the parties, and Commissioner Harrison and the Full Bench proceeded on the basis, that:
(a)at all material times there was a contract of employment between the appellant and the respondent under which the appellant was the 'employee' (as defined in s 7(1) of the Act) and the respondent was the 'employer' (as defined in s 7(1));
(b)the appellant's claim against the respondent, the subject of the proceedings before the Commission and the Full Bench, was an 'industrial matter' (as defined in s 7(1) of the Act); and
(c)the appellant had referred the industrial matter in question to the Commission.
Section 29(1) of the Act specifies by whom an industrial matter may be referred to the Commission. Section 29(1) confers standing on an employee and an employer, in certain circumstances, to refer an industrial matter to the Commission. Section 29 does not confer jurisdiction or additional powers on the Commission. See BGC (Australia) Pty Ltd v Phippard [2002] WASCA 191 [26] (Hasluck J, Anderson & Parker JJ agreeing).
Section 29(1)(b) does not stipulate any jurisdictional facts and does not, either expressly or impliedly, prescribe any principles of law which must be applied by the Commission or the Full Bench in determining an industrial matter referred to the Commission under that provision. Further, s 29(1)(b) does not require the Commission (including the Full Bench) not to make an error of law or fact in determining the merits of an industrial matter referred to the Commission.
If the Commission (including the Full Bench) makes an error of law or fact in determining the merits of an industrial matter referred to the Commission under s 29(1), that error will not vitiate either the reference of the industrial matter under s 29(1) or the acceptance of the matter by the Commission (including the Full Bench).
A decision of the Full Bench on the merits of an industrial matter referred to the Commission under s 29(1) will only confer a right of appeal on a person who is dissatisfied with the decision if one or more of the grounds specified in s 90(1) applies to the decision.
In the present case, the appellant's complaints about the Full Bench's decision are about alleged errors that do not enliven this court's jurisdiction. In particular:
(a)ground 1 of the appeal asserts that the Full Bench erred in its identification of the terms of the contract of employment;
(b)ground 2 asserts that the Full Bench erred in failing to take into account 'relevant surrounding circumstances' in determining the material terms of the contact of employment; and
(c)ground 3 asserts that the Full Bench made certain findings that were not supported by any evidence.
None of the grounds of appeal alleges, either in form or in substance, that the Full Bench made an error, within s 90(1)(b), in the construction or interpretation of the Act in the course of making the decision.
The decision of this court in Matthews does not support the appellant's contention that this court has jurisdiction to hear the appeal.
In Matthews, the appellant's ground of appeal alleged that the Full Bench's decision to 'cap' an award made in favour of the appellant in the amount of $79,920 was erroneous. It was asserted that the Full Bench made the error because it overlooked the fact that the appellant's claim, based upon the denial of a contractual benefit in the form of reasonable notice, was brought pursuant to s 29(1)(b)(ii) of the Act and, consequently, s 23A, which provided for a 'cap' in the case of compensation for loss or injury caused by a harsh, oppressive or unfair dismissal, had no application [11].
This court allowed the appeal in Matthews because the Full Bench, in the course of making the decision appealed against, made an error in the construction or determination of the Act. The Full Bench wrongly 'capped' the award made in favour of the appellant and the error arose from the Full Bench's misconstruction of the Act.

Conclusion

The respondent has established that this court does not have jurisdiction to hear the appeal. Its application for summary dismissal should be allowed. The appeal must be dismissed.

LE MIERE J: This appeal should be dismissed on the ground that this court does not have jurisdiction to hear the appeal for the reasons stated by Kenneth Martin J.
KENNETH MARTIN J:

Overview

On 14 February 2014 the appellant, Ms Landsheer, caused a notice of appeal to be filed in this court by which she seeks to reverse a decision of the Full Bench of the Industrial Relations Commission (see Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 34). The Full Bench had on the appeal to it, unanimously upheld a decision of Commissioner J L Harrison (see Landsheer v Morris Corporation (WA) Pty Ltd [2013] WAIRC 574) which had dismissed Ms Landsheer's money claim against her employer, the respondent.
Ms Landsheer's unsuccessful claim had been advanced before the Industrial Commission as a claim for contractual benefits, claimed as due to her under her contract of employment with the respondent.
The essence of Ms Landsheer's claim was she had been wrongly denied payment by her employer for the additional hours she had been required to work as a kitchen hand - when employed at the Cloudbreak mine, under circumstances where she was engaged under a fly-in/fly-out (FIFO) two weeks on / one week off, employment arrangement.
Shortly after appeal papers were lodged in this court, the respondent filed a motion seeking that Ms Landsheer's appeal be dismissed for want of jurisdiction in this court. In essence, the respondent contends the jurisdictional gateway that is necessary to be opened under s 90(1)(b) of the Industrial Relations Act 1979 (WA) (the IR Act) (as amended), is not open to Ms Landsheer, under her proposed appeal. Hence, it is contended there is no proper jurisdictional basis raised by Ms Landsheer to advance before this court her three proposed grounds of appeal which were filed on 14 February 2014.
On 18 June 2014, it was ordered that the respondent's motion seeking to have Ms Landsheer's appeal dismissed, be listed for a separate hearing. If the respondent's motion succeeds, it will have been shown there is no jurisdiction for this court under s 90(1) to proceed to determine the merits of Ms Landsheer's proposed appeal and, in that case, her attempted appeal must be dismissed.

Two key legislative provisions in the IR Act

The terms of s 90(1)(b) of the IR Act provide:
(1)Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session -
(a)…
(b)on the ground that the decision is erroneous in law in that there has been an error in the construction or interpretation of any Act, regulation, award, industrial agreement or order in the course of making the decision appealed against; or
(c)…
but upon no other ground.
There is no dispute that the appeal sought to be advanced by Ms Landsheer in this court is jurisdictionally grounded solely upon an attempted invocation of s 90(1)(b) of the IR Act. Annexure A to Ms Landsheer's notice of appeal, filed by her solicitors on 14 February 2014, displays three proposed grounds of appeal, and says:
1.This appeal is brought pursuant to s 90(1)(b) of the Industrial Relations Act 1979 (WA) (the Act).
Ms Landsheer contends that the legislation (for the purpose of her attempted identification under s 90(1)(b) of an 'Act', in respect of which it is argued that there has been some error by the Full Bench in relation to construction or interpretation, in the course of making the decision appealed against), is the IR Act itself. The asserted error of statutory construction is said to arise by reason of the Full Bench's contended misinterpretation of s 29(1)(b)(ii) of the IR Act. Paragraph 2 of annexure A to Ms Landsheer's notice of appeal, reads:
2.The decision of the Full Bench in Landsheer v Morris Corporation (WA) Pty Ltd [2014] WAIRC 35, is erroneous in law on the basis that there is an error in the interpretation by the Full Bench of s 29(1)(b)(ii) of the Act.
The character of the asserted error in statutory construction is somewhat obliquely raised at par 3 of annexure A:
3.The Full Bench erred in law by:
(a)failing to properly apply established principles relating to terms to be implied into a contract of employment; and
(b)taking into account irrelevant considerations.
As a result, it is necessary to examine immediately the terms of s 29(1)(b)(ii) of the IR Act. This is the key statutory provision said by Ms Landsheer to have been misinterpreted by the Full Bench and therefore, is at the heart of this application to dismiss for want of jurisdiction.
Section 29(1) of the IR Act provides:
(1)An industrial matter may be referred to the Commission -
(a)in any case, by -
(i)an employer with a sufficient interest in the industrial matter; or
(ii)an organisation in which persons to whom the industrial matter relates are eligible to be enrolled as members or an association that represents such an organisation; or
(iii)the Minister;
and
(b)in the case of a claim by an employee -
(i)that he has been harshly, oppressively or unfairly dismissed from his employment; or
(ii)that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment,
by the employee.
Ms Landsheer's proposed appeal asserts that the Full Bench erred in its interpretation of s 29(1)(b)(ii). As will be seen, it is not easy to see where in the reasons of the Full Bench such an error appears.

Jurisdictional limits set under s 90(1) of the IR Act limiting an appeal to the IAC

Section 90(1) of the IR Act has received consideration by this court in a series of earlier decisions. Appeals were taken to this court in the aftermath of amendments to s 90 which were implemented under the Labour Relations Reform Act 2002, taking effect from 1 August 2002.

In United Construction Pty Ltd v Birighitti [2003] WASCA 24, Hasluck J observed:
[99]Section 90(1) in its amended form clearly reflects a parliamentary intention to limit the jurisdiction of the Industrial Appeal Court to certain prescribed areas of disputation and that intention must be respected. For myself, I cannot see that the new phrase 'erroneous in law' represents any significant departure from the former concept of 'error in law'. The term 'erroneous in law' seems to have been used principally so that the grammar conforms to the structure of the provision.
[100]It follows from this view of the matter that the restriction intended to be imposed is to be found principally in the following words 'in that there has been an error in the construction or interpretation of any act …'This clearly suggests that it is not enough for the prospective appellant to point to some error of law according to common law principles. That which is said to be 'erroneous in law' must be linked to the presence of a statutory provision which purports to govern the situation.
Hasluck J (with Scott J) concluded this court held jurisdiction under s 90(1)(b).
In that appeal the statutory definition of 'employee' in the Long Service Leave Act1958 (WA) was highly material to the required exercise of ascertaining whether or not Mr Birighitti had successfully establish an employee's entitlement to long service leave under the Long Service Leave Act. A question of law had emerged, over the correct meaning of what was a technical legal term (ie, the word 'employee', used in the Long Service Leave Act: see [103] per Hasluck J).
Consequently, in that appeal the Industrial Appeal Court could exercise its appellate jurisdiction, under s 90(1)(b). The underlying issue was over the correct meaning of the term 'employee', wrongly interpreted, as it was held in the end, by the Full Bench: see [104] per Hasluck J (Anderson J dissenting).
Section 90(1) was the subject of further observations in Robertson v Civil Service Association of Western Australia Inc [2003] WASCA 284. An appeal was lodged against a decision of the President of the Industrial Relations Commission. In the end, the jurisdictional issue was resolved affirmatively, allowing the appeal to be evaluated on its merits: see [25] (Hasluck J) and [56] (EM Heenan J). EM Heenan J had considered the potential applicability of s 90(1)(b), from a jurisdictional perspective. Again in that appeal there had manifested an underlying argument about an asserted erroneous interpretation (by the President of the Industrial Relations Commission) of s 61 and s 66 of the IR Act, thereby raising asserted errors of law, properly to be determined in an appeal to this court: see [53] and [56].
The issue of this court's jurisdiction arose again in BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers [2006] WASCA 49, see the reasons of Le Miere J at [98] discussing s 90(1)(b) (with whom, in respect of appeal IAC 6 of 2005, Wheeler and Pullin JJ agreed, see [1] and [6]).
Argument arose in an aspect of that appeal (IAC 6 of 2005) over a contention the Full Bench had erred by concluding a Mr Brandis had not been employed under a contract of employment and was an independent contractor. It was argued the Full Bench wrongly construed the provisions of the IR Act, relating to the meaning of 'employer' and 'employee' and had wrongly determined arguments adverse to the employee when applying those statutory criteria: see [99].
Upholding the jurisdictional objection in IAC 6 of 2005, Le Miere J observed, after closely examining United Construction Pty Ltd v Birighitti at [101] and Personnel Contracting Pty Ltd T/As Tricord Personnel v The Construction Forestry Mining and Energy Union of Workers [2004] WASCA 312 at [102], that:
[109]Appealable questions of law may arise from the reasoning of the Full Bench on the way to its ultimate conclusion. If the Full Bench were, for example, to misinterpret the provisions of the Act, defining 'employee' or 'employer' in the course of deciding that Mr Brandis was not employed under a contract of employment with BHPB that would be an error of law in the construction or interpretation of the Act and would be appealable under s 90(1)(b).
[110]An appeal cannot be made, however, on the ground that there has been an error in the construction or interpretation of the Act where the Full Bench has merely applied law which it has correctly understood to the facts of an individual case. It is for the Full Bench to weigh the relevant facts in the light of the applicable law.
See also [120], [126] and [127].
A further decision of this court touching upon s 90, Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114, is discussed later in these reasons.
The law concerning the limited jurisdiction of this court as established by these decisions now needs to be applied to the underlying facts, to which I turn.

The respondent's jurisdictional objection

The failed claim by Ms Landsheer, in the Commission at first instance, later rejected by the Full Bench, had sought payment from the respondent on the basis of the additional hours of work performed by her as a kitchen hand. It was not controversial that Ms Landsheer:
(a)advanced a claim as an employee;
(b)advanced a claim which fell within the jurisdiction of the Industrial Relations Commission as an industrial matter for determination; and
(c)sought payment from her employer for a contractual benefit (wrongly) claimed to have been denied to Ms Landsheer, who argued that she held an entitlement to receive remuneration for additional hours which she had been required to work by her employer under her contract of employment.
Furthermore, as is apparent from her proposed grounds of appeal, it was, and remains, accepted as being common ground that Ms Landsheer had been employed 'pursuant to a common law contract of employment': see particulars (b) to grounds 1 and 2 of the proposed appeal. Each ground expressly refers to Ms Landsheer's 'common law contract of employment', as being the 'subject of this dispute'.
As indicated, it is also apparent that the asserted 'decision erroneous in law' now contended for by Ms Landsheer (to ground the appellate jurisdiction of this court) under s 90(1)(b) - is asserted to have been made by the Full Bench under its (contended as erroneous) construction of s 29(1)(b)(ii) of the IR Act.
The respondent's jurisdictional challenge may now be seen to distil to an evaluation of whether the decision of the Full Bench (by Acting President J H Smith, with whose reasons Scott ASC and Mayman C agreed) does arguably manifest some element(s) of an erroneous statutory interpretation towards the phrase 'contract of employment' - as used within s 29(1)(b)(ii) of the IR Act.
To that end, I turn to examine the reasons of the Full Bench of the Industrial Relations Commission in ultimately rejecting Ms Landsheer's claim.

The Full Bench's reasons

Acting President Smith's reasons commence by recounting some factual background underlying Ms Landsheer's claim. It was observed at par 2:
It is common ground that Ms Landsheer entered into a written common law contract of employment. However, Ms Landsheer claims that the written agreement did not contain all the terms and conditions of her employment.
It was next observed Ms Landsheer (see par 3) had been employed by the respondent as a kitchen hand under FIFO arrangements. Her place of employment was the Cloudbreak mine site in the north-west of Western Australia.
Smith AP then set out what were comprehensive terms within the written contract. There is an extensive quotation from those written terms under par 10.
At par 13 Smith AP observed:
Though the written common law contract was described in its terms as an Australian Workplace Agreement, the agreement between the parties was not formally registered as an Australian Workplace Agreement. Thus, the agreement could only have effect as a common law contract of employment.
(As I have already observed, there is no controversy over that proposition raised before this court.)
Smith AP summarised the reasons for decision of the Commissioner at first instance. She noted the Commissioner had said ([15](e)):
At all material times, Ms Landsheer was an employee of Morris Corporation and she was employed under a contract of service. This claim is an industrial matter for the purposes of s 7 of the Act as it relates to wages Ms Landsheer claims are due to her arising out of her employment with Morris Corporation. The benefit that Ms Landsheer is claiming does not arise under an award or order of this Commission. The issue to be determined, therefore, is what were the terms of Ms Landsheer's contract of employment with Morris Corporation and whether it was a term of the contract of employment that Ms Landsheer is entitled to the payment for the additional hours worked by her since March 2009 and superannuation entitlements on the amount claimed.
Smith AP noted ([15](k)) Ms Landsheer's argument in the Commission was that it was:
... necessary to imply additional terms into the contract as there is no express term allowing Morris Corporation to unilaterally vary a fundamental term of the contract, that is, increasing the hours to be worked by Ms Landsheer without her being paid additional remuneration, is rejected. The written contract contains term which allow and contemplate her working up to 12 hours in each shift for the same rate of pay as when she worked a 10-hour shift, without a review of her remuneration being required.
And at [16]:
On behalf of Ms Landsheer, counsel put to the Full Bench that at the heart of the appeal is the question whether the term implied by law into almost every contract of service as a matter of course, which is the right to be paid for service performed, was a term that was breached by Morris Corporation.
Ms Landsheer's submissions to the Full Bench were then summarised (pars 16(a) through 16(n)). It was observed that if Ms Landsheer's contractual benefit claim were accepted, her claim for payment for her working of increased hours, with no increase in salary, would have entitled her to $62,907.76 in wages, plus $5,571.70 in superannuation entitlements: see par 17.
Commencing at par 18, Smith AP identified the two significant issues she considered arose before the Full Bench: see 'Principles ‑ Ascertainment of the terms of the contract of employment'. She observed (par 18):
The first issue to be determined in this appeal is whether the terms of employment were partly oral or wholly in writing. The second issue is whether a term or terms can be implied into the contract as a matter of fact to the effect that Ms Landsheer is entitled to be paid reasonable remuneration for each hour of work in a shift that is in addition to 10 hours of work.
As regards that first issue, the Acting President identified in orthodox fashion (par 29) two leading contractual interpretation decisions of the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40] and Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 [22].
Concerning the second issue identified, Smith AP observed (at par 30):
As to the second issue raised on behalf of Ms Landsheer which is whether a term or terms can be implied into the contract, the circumstances which a court or tribunal will imply a term on grounds of fact are well settled.
Smith AP proceeded to address what are the well-established contractual principles governing the criteria for the implication of a term on an ad hoc basis, from leading decisions, namely BP Refinery (Westernport) Pty Ltdv Shire of Hastings (1977) 180 CLR 266, as endorsed by Mason J's reasons in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337. In those respects, Smith AP's reasons again recounted the underlying case law in a completely orthodox fashion. She also observed as regards terms that are implied into a contract, at par 31:
Terms can also be implied as part of the legal relationship of employment.
Smith AP's observations proceeded to mention a decision of the Full Court of the Federal Court, University of Western Australia v Gray [2009] FCAFC 116; (2009) 259 ALR 224 [136] (Lindgren, Finn and Bennett JJ), then of the High Court, Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 452 (McHugh and Gummow JJ). In that respect, once again the Acting President's observations as to contractual terms implied by law were, with respect, entirely orthodox. And see now the recent decision of the High Court, Commonwealth Bank of Australia v Barker [2014] HCA 32 [19] ‑ [29] (French CJ, Bell & Keane JJ).
Smith AP concluded at the heading 'What were the material terms of the employment contract?':
36.When the principles set out above are applied to the facts of this matter, the first question that must be asked is from the words 'we will be working 10-hour days' did the parties intend to be bound by a warranty that the salary rate of $1,561.63 including superannuation for each week was to be paid for work to be performed in 10-hour shifts worked each day for two weeks in a three week cycle? If that proposition is accepted, then can it be inferred that an hourly rate for work performed should be calculated on the basis that for 14 days of work in a three week cycle, 140 hours of work should be performed, which equated to an hourly rate of $30.70 per hour.
37.In my opinion, I cannot make those implications from the evidence. The evidence was that 'we will be working 10-hour days'. There was no discussion about how remuneration for work would be calculated … Nor could such a term be inferred from the vague statement made to Ms Landsheer at the interview.
And:
47.Whether a right to be paid for each hour of work in this matter depends upon the construction of the agreed terms of the contract of employment. Ms Landsheer's entitlement to wages arose expressly under the terms of the written agreement. The terms of cl 3, cl 7 and cl 9 when read together provided that the 'wages‑work' bargain in the contract was that Ms Landsheer was to be paid an annualised salary calculated as pay for each week (or put another way, an 'all up' rate of pay), for working rostered shifts of hours up to 12 hours each day and that she was to be paid the same rate of pay each week including for the time she was rostered off work.

Evaluation of Ms Landsheer's argued error of statutory misconstruction by the Full Bench concerning s 29(1)(b)

When the reasons of the Full Bench by Smith AP (agreed with by Scott ASC and Mayman C) are closely examined, it emerges:
(a)there is no identifiable reference at any point within the reasons to a consideration by the Full Bench as to the meaning of s 29(1)(b)(ii) at any point;
(b)there has been no discernible exercise in statutory construction by the Full Bench undertaken towards the phrase 'contract of employment', within s 29(1)(b)(ii);
(c)that appeal to the Full Bench can ultimately be seen to have been argued on the basis of both parties accepting there was a common law contract of employment applicable to Ms Landsheer;
(d)the task undertaken by the Full Bench essentially involved an evaluation of arguments over the content or otherwise of Ms Landsheer's bespoken contract of employment (ie, its express terms) or, over an exercise in attempting to find within her written contract of employment once ascertained, some additional terms that were to be implied by law or fact.
(e)The exercise undertaken in the Full Bench was primarily directed at evaluating Ms Landsheer's arguments contending for the payment alleged as due to her, on the basis of being a 'contractual benefit' she asserted she held - under the terms of her employment contract (ie, by the force of express or implied terms) and seeking a payment for the additional hours she claimed to have been required to work, but without receiving the remuneration she argued was due under her contract. This became an exercise of the Full Bench applying well settled legal principles concerning common law contracts and their terms, against the presenting factual circumstances of Ms Landsheer's unique contract of employment.
(f)What transpired before the Full Bench is precisely the kind of application of the law to facts exercise that was explained by Le Miere J at [110] in BHP Billiton v CFMEU (quoted earlier at [51]) as not meeting s 90(1)(b)'s jurisdictional threshold;
(g)no part of the Full Bench's reasons displays any misinterpretation of the word 'benefit', or of the phrase 'contract of employment', as those terms are used within s 29(1)(b)(ii), such as would suggest the making of an error of law by the Full Bench that arose by reason of a misinterpretation of the statute.

Contentions by applicant responding to jurisdictional objections

An absence of any discernible component of the Full Bench's reasons that might arguably be said as manifesting an error in the construction or interpretation of s 29(1)(b)(ii), was a deficiency that became highlighted under the grounds (albeit they are essentially submissions) of the notice of motion,filed by the respondent on 7 March 2014. The respondent said:
7.In respect of ground 1 of the Appeal, the assertion that the Full Bench failed to take into account relevant surrounding circumstances in determining the material terms of the contract of employment has no relationship or relevance to s 29(1)(b)(ii).
8.In respect of ground 2 of the Appeal, the assertion that the Full Bench failed to apply particular principles of evidence again has no relationship or relevance to s 29(1)(b)(ii).
9.In respect of ground 3 of the Appeal, the complaint that the Full Bench reached a conclusion about all up rates of pay in the absence of evidence is odd, considering the duty imposed on members of the Commission by s 19 of the Act and the fact that the conclusion is manifestly correct, but more importantly that this again has no relationship or relevance to s 29(1)(b)(ii).
The essence of the jurisdictional challenge raised the respondent, was:
10.In summary, the Appeal asserts that there has been an error in the interpretation of s 29(1)(b)(ii) but nothing in the grounds of appeal even vaguely relates to such an assertion.
Confronted with that basal difficulty, counsel for Ms Landsheer during oral argument, sought to find some belated assistance in from an earlier decision of this court in Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114 (Steytler, Pullin & EM Heenan JJ), where an appeal had been successfully advanced in the Industrial Appeal Court, pursuant to s 90(1)(b). However, as was manifest in Matthews, the argument had been about an error in the interpretation by the Full Bench of s 23, s 23A and s 29 of the IR Act. It was argued the error had inhibited recourse by that appellant to advancing a contractual benefit claim, on a basis of being denied reasonable notice of the termination of his employment. Accordingly, an error of law in relation to the construction of or the interpretation of the provisions of an Act (for the purposes of meeting s 90(2)(b)) was demonstrably shown in Matthews. Steytler J observed at [30]:
Consequently, in my respectful opinion, what should have been done in this case is that the Full Bench should first have dealt with the claim in respect of the denial of a contractual benefit, in the form of reasonable notice, then having done so, gone on to consider what, if any, compensation should be ordered under s 23A(1)(ba). Because it failed to deal with the former claim, the appeal should be allowed and the orders made by the Full Bench set aside.
I note as well, observations of Pullin J at [43], [44] and [56]. His Honour concluded:
The Full Bench implicitly assumed it had no jurisdiction to award damages in relation to the claim under s 29(1)9b)(ii), and it thereby erred in law in its interpretation of the Act …

And, as well, see EM Heenan J at [63], [67] and [73].
Matthews manifested a ground that was ultimately accepted as showing a constructional error of law by the Full Bench, in failing to recognise the extent of its jurisdiction to grant the relief sought by the appellant. The Full Bench's error arose by a misinterpretation of the underlying statutory provisions of the Act which, correctly construed, did not inhibit the contractual benefit claim being advanced under s 29(1)(b)(ii), in that matter.
Plainly then, upon the presenting facts of Matthews a decision of the Full Bench which was erroneous in law by reference to a misinterpretation of provisions within the IR Act, was made out.

Jurisdictional determination

The jurisdictional objection pressed by this respondent is correctly raised. The reasons of the Full Bench disclose no erroneous construction or interpretation of s 29(1)(b)(ii). Rather, what manifests is merely an orthodox application of established legal principle to the underlying factual circumstances as raised by Ms Landsheer's contractual benefit claim, seeking payment for additional hours worked. What unfolded before the Full Bench, essentially, saw an application of uncontroversial contractual law principles to the particular presenting facts before the Industrial Commissioner and then before the Full Bench.
Jurisdictional constraints inhibiting appeals to this court under s 90(1), do not allow a wholesale reventilation of what are, in essence, arguments of fact over the underlying circumstances of an individual claim. It is necessary for a would-be appellant to go further, to show an error of law in meeting the criteria of s 90(1)(a), (b) or (c) ‑ and on no other ground.
In the present matter, the arguments of Ms Landsheer are said to be directed at the meaning of s 90(1)(b), but under scrutiny, can be seen only to advance her particular entitlements to a contractual benefit. Such arguments are not in truth, directed at the required identification of an error in the interpretation of legislation, or of an industrial instrument. They do not satisfy the jurisdictional standard of s 90(1)(b).
There is no worthwhile parallel here to the issues that presented in Matthews. The arguments Ms Landsheer would seek to advance under her three proposed grounds of appeal to this court, do not at any level meet the required jurisdictional threshold of showing error of law by the Full Bench in the construction or interpretation of a statutory provision.
Accordingly, the respondent's motion to dismiss for want of jurisdiction must be allowed.
Orders in this court should issue in terms of the respondent's motion of 7 March 2014 dismissing this appeal for want of jurisdiction.