2014 WAIRC 01361
Appeal against a decision of the Commission in Matter No. CR 51 of 2012 given on 18 July 2014
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
FULL BENCH
CITATION:2014 WAIRC 01361
CORAM / :The Honourable J H Smith, Acting PresidentChief Commissioner A R Beech
Commissioner S J Kenner
HEARD / : / Tuesday, 30 September 2014
DELIVERED:THURSDAY, 18 DECEMBER 2014
FILE NO:FBA 9 OF 2014
BETWEEN / : / United Voice WAAppellant
AND
The Director General, Department of Education
Respondent
ON APPEAL FROM:
2014 WAIRC 01361
Jurisdiction:Western Australian Industrial Relations Commission
Coram:Commissioner S M Mayman
Citation:[2014] WAIRC 00622; (2014) 94WAIG 1486
File No:CR 51 of 2012
CatchWords:Industrial Law (WA) - Appeal against decision of the Commission - Effect of non-compliance with time limit in s49(3) of the Industrial Relations Act 1979 (WA) - Whether power to extend time to insitute an appeal considered - Time limit in s49(3) procedural - Power to extend time expressly prescribed in s27(1)(n) of the Act - Time extended - Commission at first instance dismissed the application on grounds the relief sought by the union was for enforcement of an industrial instrument - Nature of exclusive jurisiction of the Industrial Magistrate's Court considered - Commission without power to make declarations sought by the union - Order sought by the union within power - Appeal allowed - Order made at first instance suspended and case remitted for further hearing and determination
Legislation:Industrial Relations Act 1979 (WA) s6, s6(c), s6(ca), s7(1), s22B, s23(1), s23A(4), s23A(6), s26, s26(1)(a), s26(1)(b), s27, s27(1), s27(1)(n), s27(1)(v), s29, s29(1)(b)(i), s29(2), s29(3), s44, s44(9), s49, s49(2), s49(3), s49(5)(b), s49(6), s83, s83(1), s83(3), s83(4), s83(5), s83(8), s84(3), s84(4), s84A, s90, s90(1), s90(2), s96K, s96J, s113, ptIV
Conciliation and Arbitration Act 1904 (Cth) s2(c), s35(2), s35(4), s39(1), s40(1)(a), s40(1)(b), s40(1)(c), s41, s41(1), s41(1)(m), s41(2)
Government and Related Employees Appeal Tribunal Act 1980 (NSW) s55(1)
Industrial Relations Act 1996 (NSW) s85(1), s85(3), s189(1), s189(2)
Industrial Relations Amendment Act 1993 (WA) s10
Labour Relations Reform Act 2002 (Act No20 of 2002) (WA) s155
Police Act 1990 (NSW)
School Education Act 1999(WA) s4, s64, s65, s235, s236, s236(2), s237
Supreme Court Act 1935 (NSW) s6
Teacher Registration Act 2012(WA) s7, s10, s10(2), s12, s17, s21, s124, pt3
Transport Appeal Boards Act 1980 (NSW) s 13
Western Australian College of Teaching Act 2004(WA) (repealed) s30, s31, s36, s37, pt4
Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 (WA) reg26
School Education Regulations 2000 (WA) reg127, reg127A
Teacher Registration (General) Regulations 2012(WA) reg12
Supreme Court Rules 1970 (NSW)
Result:Order made
Representation:
Appellant:Mr M Amati, as agent
Respondent:Mr D J Matthews (of counsel) and with him Ms JCO'Meara (of counsel)
Solicitors:
Respondent:State Solicitor's Office
Case(s) referred to in reasons:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239CLR 27
Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69WAIG 1287
Aurion Gold v Bilos [2004] WASCA 270; (2004) 84 WAIG 3759
Australian Glass Manufacturing Co Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 72WAIG 1499
Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108CLR 471
Bailey v Commissioner of Police [2014] NSWIRComm53
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248CLR 500; (2012) 86ALJR 1044
Buresti v Beveridge (1998) 88FCR 399, 401; (1998) 158ALR 445
Christies Sands Pty Ltd v City of Tea Tree Gully (1975) 11 SASR 255
Corporation of the City of Enfield v Development Assessment Commission (2000) 199CLR 135
Cousins v YMCA of Perth [2001] WASCA 374; (2002) 82 WAIG 5
Crewe and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69WAIG 2623
Esze v Layer (1993) 73WAIG 1222
Ex parte Redgrave; Re Bennett (1945) 46SR (NSW) 122
General Motors-Holden's Ltd v DiFazio [1979] HCA 43; (1979) 141CLR 659
Hocine v Minister for Immigration and Multicultural Affairs (2000) 99FCR269
J-Corp Pty Ltd v The Australian Builders’ Labourers’ Federated Union of Workers, Western Australian Branch (1993) 73WAIG 1185
Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training [2010] WAIRC 00089; (2010) 90WAIG 127
Matkevich v New South Wales Technical & Further Education Commission (NSW) (1995) 65IR46
Maxwell v Murphy [1957] HCA 7; (1957) 96CLR 261
Metal and Engineering Workers' Union – Western Australia v AOC Australia Pty Ltd (1994) 74WAIG 2641
Mt Newman Mining Co Pty Ltd v Transport Workers Union of Australia, Industrial Union of Workers, Western Australian Branch (1984) 64WAIG 1075
Parisienne Basket Shoes Proprietary Limited v Whyte (1938) 59 CLR 369
Patterson v Public Service Board of NSW (1984) 1NSWLR 237
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194CLR 355
R v The Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Limited (1978) 142CLR 113
Rail Corp (NSW) v Brown (2012) 219IR67
Re Coldham and Others; Ex parte The Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 159CLR 522
Re Cram; Ex parte The Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140
Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163CLR 656
Re The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch (2000) 106 IR 13
Rebelo v Coles New World Pty Ltd (1989) 69WAIG 1294, Esze v Layer (1993) 73WAIG 1222
Richardson v Cecil Bros Pty Ltd (1994) 74WAIG 1017
Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315
Saldanha v Fujitsu Australia Ltd [2009] WASCA 119; (2009) 89WAIG 875
Secretary of Department of Health (NSW) v Harvey (1990) 34IR58
Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) (1986) 67 WAIG 325
St Michael’s School v The Independent Schools Salaried Officers’ Association of Western Australia, Industrial Union of Workers [2000] WAIRC 00002; (2000) 80WAIG 2839
The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00534; (2014) 94WAIG 800
The Colonial Sugar Refining Company, Limited v Irving [1905] AC 369
The Waterside Workers' Federation of Australia v JWAlexander Ltd (1918) 25CLR 434
Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386
Case(s) also cited:
BGC Contracting Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2004] FCA 569
BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and EnergyUnion of Workers [2006] WASCA 49
Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2003] WAIRC 09968; (2003) 83 WAIG 3556
Gadeke v Allison Pty Ltd [2006] WAIRC 03608; (2006) 86WAIG 397
Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 990
The Independent Schools Salaried Officers' Association of Western Australia,Industrial Union of Workers v St Michael's School (2000) 80WAIG 1668
The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Roman Catholic Bishop of Bunbury Chancery Office [2007] WAIRC 00559; (2007) 87WAIG 1148
Reasons for Decision
SMITH AP:
Introduction
1United Voice WA seeks to institute an appeal under s49(2) of the Industrial Relations Act 1979 (WA) (the Act) against the decision given by the Commission, constituted by a single Commissioner, dismissing application CR51 of 2012.
2Application CR51 of 2012 was an industrial matter referred by United Voice WA and initiated as an application for a compulsory conference under s44 of the Act. United Voice WA raised a matter on behalf of one of its members, MsWendy Spence, who is employed as an education assistant by the Director General, Department of Education (the Director General). As the industrial matter was not settled it was referred for hearing and determination. The matter referred was set out in a scheduleas follows:
1.The applicant union will lead evidence to support our contentions that:
(a)The duties carried out by MsSpence are teaching duties in that these are intrinsically part of the educational services for students with disabilities in government schools as provided by the respondent.
(b)Further, MsSpence's duties and responsibilities - such as planning, assessing and reporting, as well as the managerial structure at the school - on specific activities, have been customarily differentiated from those pertaining to swimming instructors (orVacSwim), as these are provided for in the School Education Act Employees' (Teachers and Administrators) General Agreement 2011 due to essentially the substantive differences between such roles.
(c)The activities carried out by Ms Spence are consistent with the tenets of inclusivity' [sic] in educational services found in the curriculum, as framed by the School Curriculum and Standards Authority; as well as embodied in the Schools Plus program of the respondent.
(d)The specific terms of employment - as an education assistant - of MsSpence at Burbridge School are an anomaly, when compared with the past and present employing practices of the respondent in respect of swimming teachers in education support centres.
2.The applicant seeks relief as follows:
(a)A declaration that the duties and responsibilities of Ms Spence are teaching functions.
(b)A declaration that such duties are beyond the scope of the duties and responsibilities of an education assistant, as per MsSpence [sic] terms of employment.
(c)An order that the respondent make an application to the Teacher Registration Board for a limited authority to teach; where MsSpence is the nominee of that application.
3.The respondent says Ms Spence is, and at all times has been, employed pursuant to a contract of employment under which she is an education assistant and not a teacher.
4.The respondent opposes an order being made that it make or support an application for MsSpence to have limited registration pursuant to section 17 Teacher Registration Act 2012 because the respondent says Ms Spence has never held a teaching position (the term used within section 17(a)) within the Department and the respondent does not wish to offer MsSpence a teaching position.
5.The respondent considers that any duties Ms Spence has carried out pursuant to her contract of employment in relation to the pool at Burbridge School were not sufficient for it to be said that she has ever held a teaching position and says that to be the holder of a teaching position within the Department, even pursuant to section 17 Teachers Registration Act 2012, a person must be capable of discharging the full duties of a teacher as set out in section 64(1) School Education Act 1999 and clause 12(1) Teachers (Public Sector Primary and Secondary Education) Award 1993.
6.The respondent says that Ms Spence has at all times performed duties within her contract of employment as an education assistant, even when performing duties in relation to the pool at Burbridge School.
7.The respondent says, with particular relevance to this matter, that the job description form for a Level 3 education assistant makes it clear that Level 3 education assistants assist teachers in the delivery of education prograrmnes [sic] which may include designing, implementing and maintaining behaviour management plans for students (which Ms Spence did) and that Level 3 education assistants undertake tasks with students within or outside the school that involve supervision of students without the presence of a teacher (which Ms Spence did). That is, the respondent says that Ms Spence has always acted within her contract of employment as an education assistant and has never carried out the duties of a teaching position.
8.Even if, which is not admitted, Ms Spence may have, alone, performed duties in relation to the pool at Burbridge School at some times which would normally have been performed by a teacher the respondent says:
(a)this should not have occurred;
(b)the performance of those duties did not make Ms Spence a teacher or make it accurate to say she was performing the duties of a teaching position to the extent or in the way that she was, or should be, a teacher; and
(c)Ms Spence will not in the future performthose duties alone as the current principal of Burbridge School, unlike some principals of Burbridge School in the past, insists that a teacher be present when students are in the pool.
9.The respondent opposes a declaration being made that the duties Ms Spence has performed in relation to the pool at Burbridge School are properly described as being those of a teaching position.
10.The respondent opposes a declaration being made that the duties Ms Spence performed in relation to the pool at Burbridge School were outside of her contract of employment as an education assistant.
11.The respondent says that the past employment of education assistants as untrained swimming teachers is not relevant to the present application for reasons in relation to which evidence will be led at hearing.
12.The respondent says that the position of swimming instructor under the School Education Act Employees' (Teachers and Administrators) General Agreement 2011 is not relevant to the present application for reasons in relation to which evidence will be led at hearing.
13.The respondent opposes an order being made that it make or support an application to the Teacher Registration Board that Ms Spence have limited registration as a teacher because:
(a)the respondent has never employed Ms Spence as anything other than an education assistant and there is a contract in place between the respondent and Ms Spence under which she is an education assistant;
(b)the respondent wishes to continue to employ Ms Spence as an education assistant pursuant to the contract of employment;
(c)the respondent has not used Ms Spence in a teaching position and, even if it had, which is denied, does not wish to use her in a teaching position in the future;
(d)the respondent does not wish to, using the language in section 17(a) TeachersRegistration Act 2012, offer [Ms Spence] a teaching position becauseMs Spence is, in the opinion of the respondent, not qualified to be employed ina teaching position; and
(e)there is nothing unfair about the respondent not making or supporting such anapplication.
3The decision dismissing CR51 of 2012 was delivered on 18July 2014 and a notice of appeal was accepted in the registry against the decision on 11August 2014. Consequently, the appeal was filed three days out of time. United Voice WA filed an application on the same day it filed the notice of appeal seeking an order that the Full Bench grant leave to allow it to file an appeal against the decision out oftime.
4On behalf of the DirectorGeneral, it is contended that the Full Bench has no power to extend time within which to lodge an appeal. However, it is conceded on behalf of the Director General that if the Full Bench finds that it does have power to extend time within which to lodge an appeal it does not oppose the granting of an extension of time.
Whether power to extend time – relevant provisions of the Act
5Section 49(2) of the Act provides:
Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.
6Section 49(3) of the Act provides:
An appeal under this section shall be instituted within 21days of the date of the decision against which the appeal is brought and may be instituted by—
(a)any party to the proceedings wherein the decision was made; or
(b)any person who was an intervener in those proceedings.
7Section 27(1)(n) of the Act 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;
Does the Full Bench have power to extend time to a party or intervener to institute an appeal against a decision of the Commission?
(a)The Director General's submissions
8On behalf of the Director General it is said that the Full Bench of the Commission has consistently relied upon the decision of KennedyJ in Cousins v YMCA of Perth [2001] WASCA 374; (2002) 82 WAIG 5, in finding that it has power to extend the time within which an appealto it may be instituted. It is also pointed out, however, that the appeal in Cousins focused on the issues of whether a 'cross-appeal' to the Full Bench was competent and, it having been found that itwas not, whether the Full Bench had erred in not exercising its discretion to extend the time within which an appeal may be instituted. Thus, it is said the issue of whether the Full Bench has power to extend the time within which an appeal to it may be instituted does not appear to have been the subject of contest before the Industrial Appeal Court.
9It is submitted on behalf of the Director General that s27(1)(n) of the Act cannot be relied upon by the Full Bench to extend the time within which an appeal to it may be instituted. The Director General also points out that s27(1) of the Act commences with the words 'Except as otherwise provided in this Act' which means that the powers in s27(1) are subject to express exclusion or exclusion by necessary intendment.
10Insupport of the Director General's argument that the Full Bench has no power to extend time, the Director General relies upon two decisions.
11Thefirst is the decision of FieldingC in Richardson v Cecil Bros Pty Ltd (1994) 74WAIG 1017 in which the Commissioner found s27(1)(n) of the Act was excluded by necessary intendmentand thus could not empower the Commission at first instance to extend time to an employee to refer a claim of harsh, oppressive and unfair dismissal to the Commission.
12The second is the decision of the Industrial Appeal Court in Saldanha v Fujitsu Australia Ltd [2009] WASCA 119; (2009) 89WAIG 875. In Saldanha the Industrial Appeal Court found there was no power to extend the time within which an appeal to the Industrial Appeal Court may be instituted. The language in s90(2) of the Act (which was considered by the Industrial Appeal Court) is in identical terms to s49(3) of the Act. It is contended that the Industrial Appeal Court held that the language in s90(2) is such that it is clear there is no ability to extend time, whether or not there is a power that allowed for extensions of time once jurisdiction had been established. The Industrial Appeal Court in Saldanha applied the reasoning in Patterson v Public Service Board of NSW (1984) 1NSWLR 237 in which the Court of Appeal of the Supreme Court of New South Wales held that a power to extend time only applies in the absence of express words to the contrary or of reasonably plain intendment otherwise and that a contrary intention would be shown by providing a condition precedent to the exercise of the jurisdiction conferred or to the right to invoke it, such as a condition which makes a mandatory provision that some step shall be taken by a party (239). The reasoning in Patterson, the Director General says, is essentially the same reasoning as that of FieldingC in Richardson.
13Whilst it is said that the Director General accepts that the Industrial Appeal Court did not have available to it the powers under s27(1) of the Act and so did not expressly consider s27(1), reading s27(1)(n) and s90(2) of the Act together, there is no reason, other than exclusion by necessary intendment, why the Court could not extend time under s90(2) of the Act. In any event, it is said that it is clear that the Industrial Appeal Court considered that a power such as that found in s27(1)(n) of the Act was not exercisable in the face of the language 'shall be instituted within 21 days from the date of the decision against which the appeal is brought' for two reasons relevant to the current matter. These reasons are as follows:
(a)the Industrial Appeal Court expressly relied upon the decision of Patterson and James where there was such a power but the Supreme Court of New South Wales held that its exercise was excluded by the contrary intention revealed by language which imported a condition precedent to its exercise, namely, as here, a mandatory provision that a step shall be taken by a party within time (see [6] of the decision in Saldahna where the Industrial Appeal Court applied Patterson and James while noting that the Court in that case had considered and rejected reliance on an extension of time power which, it is submitted, was materially alike the power in section 27(l)(n)); and