The Public Transport Authority of Western Australia v The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch
[2015] WASCA 150
•4 AUGUST 2015
THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA -v- THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH [2015] WASCA 150
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [2015] WASCA 150 | |
| Case No: | IAC:4/2014 | 13 FEBRUARY 2015 | |
| Coram: | BUSS J LE MIERE J MURPHY J | 4/08/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Full Bench of the Industrial Relations Commission of Western Australia made no error of construction or interpretation | ||
| B | |||
| PDF Version |
| Parties: | THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH |
Catchwords: | Industrial Appeal Court Appeals from Western Australian Industrial Relations Commission Jurisdiction of Industrial Appeal Court No error in construction |
Legislation: | Industrial Relations Act 1979 (WA) |
Case References: | BHP Billiton Iron Ore Pty Ltd v CFMEU [2006] WASCA 49; (2006) 151 IR 389 Personnel Contracting Pty Ltd T/as Tricord Personnel v CMFEU [2004] WASCA 312; (2004) 141 IR 31 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : THE PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA -v- THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH [2015] WASCA 150 CORAM : BUSS J
- MURPHY J
LE MIERE J
- Appellant
AND
THE AUSTRALIAN RAIL, TRAM AND BUS INDUSTRY UNION OF EMPLOYEES, WEST AUSTRALIAN BRANCH
Respondent
ON APPEAL FROM:
Jurisdiction : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Coram : J H SMITH ACTING PRESIDENT
- A R BEECH CHIEF COMMISSIONER
S M MAYMAN COMMISSIONER
Citation : [2014] WAIRC 00535
File No : FBA 12 of 2013
Catchwords:
Industrial Appeal Court - Appeals from Western Australian Industrial Relations Commission - Jurisdiction of Industrial Appeal Court - No error in construction
Legislation:
Industrial Relations Act 1979 (WA)
Result:
Full Bench of the Industrial Relations Commission of Western Australia made no error of construction or interpretation
Category: B
Representation:
Counsel:
Appellant : Mr D J Matthews
Respondent : Mr T R Kucera & Ms R Young
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : W G McNally Jones Staff Lawyers
Case(s) referred to in judgment(s):
BHP Billiton Iron Ore Pty Ltd v CFMEU [2006] WASCA 49; (2006) 151 IR 389
Personnel Contracting Pty Ltd T/as Tricord Personnel v CMFEU [2004] WASCA 312; (2004) 141 IR 31
1 BUSS J: I agree with Le Miere J.
2 MURPHY J: I agree with Le Miere J.
3 LE MIERE J: Mr M was employed by the appellant, the Public Transport Authority of Western Australia (PTA) as a transit officer. In the course of his duties Mr M assaulted a patron of the PTA at a train station as a result of which he was charged with three counts of common assault contrary to Criminal Code (WA) s 313(1). Mr M was convicted of the charges in the Magistrates Court and fined. Mr M filed an appeal to the Supreme Court against his conviction and penalty. The PTA terminated Mr M's employment. The respondent, The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch (Union) filed an application for a conference in the Industrial Relations Commission of Western Australia (Commission) claiming that the dismissal was unfair. The hearing was vacated until after the delivery of the decision in Mr M's appeal in the Supreme Court. After the hearing in the Commission had been vacated, Mr M amended his grounds of appeal in the Supreme Court to remove his appeal against conviction. The appeal proceeded on the ground that there had been a miscarriage of justice occasioned by the failure of Mr M's counsel to apply to the Magistrates Court for a spent conviction order. Justice McKechnie upheld the appeal and granted a spent conviction order.
4 The PTA then applied under Industrial Relations Act 1979 (WA) (IR Act) s 27(1)(a) for an order that the Commission dismiss the union's application on the ground that further proceedings are not desirable in the public interest. Commissioner Kenner found that further proceedings were not desirable in the public interest and dismissed the union's application. The union appealed to the Full Bench of the Commission. The Full Bench allowed the appeal, suspended the decision of Commissioner Kenner, dismissed the PTA's application under IR Act s 27(1)(a) and remitted the matter to the Commission for further hearing and determination.
Grounds of appeal
5 The PTA now appeals to this court against the decision of the Full Bench on the ground that the Full Bench erred in interpreting the term 'public interest' in IR Act s 27(1)(a)(ii). In its particulars of its ground of appeal the PTA says that the Full Bench erred in the interpretation of the term 'public interest' by failing to properly consider the potential for conflict between the decision of his Honour McKechnie J in granting Mr M a spent conviction order and the continuation of the unfair dismissal claim brought on Mr M's behalf in circumstances where potential for conflict arose out of matters specified by the PTA in its further particulars.
Union says appeal beyond jurisdiction
6 In its written outline of submissions the Union submitted that the PTA's single ground of appeal is incompetent because it does not disclose or refer to any obvious error by the Full Bench in the construction or interpretation of IR Act s 27(1)(a)(ii) and hence the appellant's single ground of appeal should be struck out as incompetent and the appeal dismissed.
7 The IR Act s 90(1) provides that an appeal lies to this court from any decision of the Full Bench on the grounds set out in (a), (b) and (c) but upon no other ground. The PTA says that its appeal falls within s 90(1)(b) which provides that an appeal lies:
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 … in the course of making the decision appealed against.
PTA says appeal within jurisdiction
8 The PTA advances three arguments why the appeal is within the right of appeal provided by IR Act s 90(1)(b). The three arguments are as follows:
(1) The decision of the Full Bench involved the determination and application of the meaning of the term 'public interest' as that term is employed in the Act. This involved the proper construction or interpretation of section 27(1)(a)(ii) and the Full Bench erred in its construction or interpretation of the subparagraph;
(2) In deciding where the public interest lay, it is evident from a consideration of the reasons for decision of the Full Bench that the Full Bench acted on a wrong principle of law applying to section 27(1)(a)(ii) or, put another way, did not correctly understand the applicable law and thus erred in the construction or interpretation of section 27(1)(a)(ii);
(3) There was only one conclusion reasonably open in relation to the matter of public interest and that as the Full Bench reached a different conclusion it must have misunderstood the statutory criterion imported by section 27(1)(a)(ii) and thereby erred in the construction or interpretation of section 27(1)(a)(ii).
PTA's first argument
9 In oral submissions counsel for the PTA elaborated upon those arguments. The first argument is based on the proposition that the determination of whether or not further proceedings are desirable in the public interest involves the determination and application of the meaning of 'public interest' in IR Act s 27(1)(a)(ii) and therefore it is open to this court to look at the evidence and decide whether the Full Bench came to the right conclusion in deciding whether or not further proceedings were desirable in the public interest. The PTA says that its argument is supported by the judgment of E M Heenan J in Personnel Contracting Pty Ltd T/as Tricord Personnel v CMFEU [2004] WASCA 312; (2004) 141 IR 31. His Honour dissented in that case.
10 An appeal lies under IR Act s 90(1)(b) on the ground that the decision is erroneous in law in thatthere has been an error in the construction or interpretation of any Act. Not all appeals on the ground that the Full Bench erred in not finding that further proceedings are not desirable in the public interest are appeals on the ground that there has been an error in the construction or interpretation of IR Act s 27(1)(a)(ii). The dissenting judgment of E M Heenan J in Personnel Contracting is not authority for that proposition and if it is, then in my respectful opinion it is wrong. It is not sufficient for the PTA to establish that the Full Bench was wrong in not finding that further proceedings are not desirable in the public interest. The PTA must additionally establish that the error made by the Full Bench is an error of law in that there has been an error in the construction or interpretation of the statutory provision in the course of making the decision.
PTA's second argument
11 Counsel for the PTA explained the difference between the PTA's second and third jurisdictional arguments. The second argument is that the reasons of the Full Bench disclose that they erred in interpreting the phrase 'public interest'. The third argument is that the reasons do not expressly disclose the error of interpretation but it is to be inferred that the Full Bench erred in its interpretation of 'public interest' because the only decision reasonably open to it was that further proceedings are not desirable in the public interest.
12 The PTA's second argument is that it is evident from the reasons for decision of the Full Bench that the Full Bench incorrectly construed or interpreted the term 'public interest' in IR Act s 27(1)(a)(ii). The PTA starts from the proposition that it is not in the public interest for there to be potential or actual conflict between the decision of the Commission and the decision of the Supreme Court. The PTA says that the applicable correct principle is that a conflicting judgment includes a judgment that contradicts an assumption fundamental to an earlier decision in the sense that if the assumption had not been made, the decision would have been different. The PTA submits that it is clear from [61] to [74] of the reasons for decision the Acting President and [82] to [84] of the reasons for decision of the Chief Commissioner that they did not apply the correct principle referred to. That is, the PTA submitted, the Full Bench did not properly understand that in deciding the 'public interest' regard had to be had to whether success in the unfair dismissal proceedings would contradict assumptions fundamental to the decision of McKechnie J granting the employee a spent conviction order.
13 I am not persuaded that the reasons for decision of the Acting President or of the Chief Commissioner disclose that they misunderstood the meaning of 'public interest' in IR Act s 27(1)(a)(ii). In [49] to [57] the Acting President, with whom Commissioner Mayman agreed, discussed the meaning of 'public interest'. The PTA does not say that that discussion discloses any error. In [58] of her reasons the Acting President said that when all the principles she had discussed are considered, it is clear that Commissioner Kenner was obliged to have regard to certain matters. One such matter is:
If it could be established that the continuation of the unfair dismissal claim had the potential to undermine the decision given by McKechnie J, the competing matter of public interest that was to be weighed and balanced is that the Commission is part of the hierarchy of courts of the State, and it should not act in such a way which may undermine the due administration of justice in the State.
14 The PTA does not say that that statement by the Acting President discloses any error. To the contrary, the PTA argues that further proceedings are not in the public interest because the continuation of the unfair dismissal claim has the potential to undermine the decision given by McKechnie J. At [74] the Acting President said:
In the event that the Commission was to find that Mr M had been unfairly dismissed and concluded that Mr M should be reinstated, that finding would [be] unlikely to be inconsistent with the findings made by McKechnie J as his Honour left open the issue whether Mr M should be re-employed as a transit officer in the future. Thus, this is a matter that would be open to the Commission to consider if a finding is made that the dismissal of Mr M was harsh, oppressive or unfair.
- It was for that reason that the Acting President upheld the appeal.
15 The Chief Commissioner said at [82] that a finding that Mr M's dismissal was unfair would not undermine the reasons why he was granted a spent conviction because reinstatement is not the only remedy open if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair. The Chief Commissioner further held that in any event he was not persuaded that an order of reinstatement would have the potential to undermine the decision of McKechnie J because the conclusion of McKechnie J was not that Mr M's employment would not be recovered but that it is unlikely that he will obtain employment where he is in a position to exercise lawful force over others for some time, if ever, and that conclusion leaves open whether or not Mr M would obtain employment in a position where he is able to exercise lawful force over others.
16 Neither the reasons of the Acting President nor those of the Chief Commissioner disclose any error in the interpretation of 'public interest'. The PTA says that the Acting President and the Chief Commissioner mischaracterised the reasons for decision of McKechnie J or made errors in finding what were the relevant reasons of McKechnie J. Those are not errors of interpretation or construction of the term 'public interest'.
PTA's third argument
17 The PTA's third argument is said to be based on my statement in BHP Billiton Iron Ore Pty Ltd v CFMEU [2006] WASCA 49; (2006) 151 IR 389:
… Where only one conclusion is reasonably open and the Full Bench reaches a different conclusion it may be open to infer that the Full Bench misunderstood the statutory criteria and thereby erred in law in the construction or interpretation of the Act [107].
18 Judicial reasons for decision should not be construed as if they were a statute. In any event, the relevant statement is that 'where only one conclusion is reasonably open and the Full Bench reaches a different conclusion it may be open to infer that the Full Bench misunderstood the statutory criteria' (emphasis added). Whether or not that inference is open will depend upon the circumstances of the case. The inference is not open in this case for two reasons. First, I am not persuaded that the only conclusion reasonably open to the Full Bench was that further proceedings are not desirable in the public interest.
19 Secondly, if the only conclusion reasonably open to the Full Bench was that further proceedings are not desirable in the public interest and the Full Bench reached a contrary conclusion, it may have done so because it made incorrect findings of fact or it incorrectly applied the facts to the law which it correctly understood. The crucial finding of the Acting President and the Chief Commissioner is that if the Commission was to find that Mr M had been unfairly dismissed and should be reinstated that finding is unlikely to be inconsistent with the findings made by McKechnie J and would not undermine the decision of McKechnie J. If the Full Bench was wrong in those findings, and I am not persuaded that it was, it is not an error in the construction or interpretation of 'public interest'.
Full Bench made no error of construction or interpretation
20 The Full Bench correctly identified the principles to be applied to an exercise of the power conferred by IR Act s 27(1)(a)(ii). Those principles are set out in [49] - [58] of the Acting President's reasons for decision. The Full Bench made no error in the construction or interpretation of IR Act s 27(1)(a)(ii) in the course of making the decision to uphold the appeal before it.
21 It is not open to this court to review the findings of fact by the Full Bench or its application of the law which it correctly understood to the facts which it found. It is not open to this court to review the conclusion of the Acting President and of the Chief Commissioner in applying the facts as found by them to the law which they correctly understood. The PTA's appeal to this court does not disclose any ground that the Full Bench made an error in the construction or interpretation of the IR Act in the course of making the decision to allow the appeal from Commissioner Kenner. The appeal to this court is incompetent and must be dismissed.
2
3
1