Western australian industrial relations commission

(b) Consideration

16. 
    In Cousins the appellant had filed two notices of application. The appellant in both applications sought an extension of time to lodge an appeal against the decision of the Commission, after the respondent had instituted an appeal against the decision. Therefore, the appellant desired to appeal by way of a cross-appeal. The two applications were dismissed. The appellant appealed the decision to dismiss to the Industrial Appeal Court. Kennedy J, with whom Scott and Parker JJ agreed, observed [45]:
    

17. 
    The point the Director General makes in this appeal is that the issue whether the Full Bench has power to make an order to extend time to institute an appeal was not an issue in contention in Cousins. Consequently, it appears to be argued on behalf of the Director General that the observations of Kennedy J in Cousins at [45] are obiter and thus not binding on the Full Bench.
    
18. 
    The issue whether the Full Bench has power to extend time in which to institute an appeal against a decision of an Industrial Magistrate was considered by the Full Bench in Arpad Security Agency Pty Ltd v The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous WA Branch (1989) 69 WAIG 1287. In that matter an application was made by a party for an order under s 27(1)(n) of the Act that the time within which an appeal against a decision of the Industrial Magistrate was to be instituted be extended. The application was opposed by the respondent on grounds that the Full Bench does not have jurisdiction to extend time. The limitation of time to bring an appeal in s 84(3) is expressed in the same terms as s 49(3) of the Act. In Arpad Security Agency counsel for the respondent, Mr Le Miere, submitted that:
    

(b) it is a precondition for the jurisdiction to exist that the appeal be filed in time;

(c) section 27(1)(n) of the Act is not a jurisdictional provision, but a section which confers procedural powers once jurisdiction exists; thus if the notice of appeal is not filed within 21 days, then the jurisdiction which potentially exists is gone and cannot be resuscitated; and

(d) within the meaning of s 27(1)(n), s 84(3) is a provision which 'otherwise provides', within the meaning of s 27(1). That is because it provides an appeal should be brought within 21 days.

19. 
    The Full Bench rejected the argument put on behalf of the respondent. It applied the unanimous reasoning of the High Court in Re Coldham; Ex parte The Australian Building Construction Employees’ and Builders Labourers’ Federation [1986] HCA 87; (1985) 159 CLR 522 in which a similar issue arose in respect of the power of the Australian Conciliation and Arbitration Commission to extend the time prescribed to lodge an appeal to the Full Bench of that Commission. In Re Coldham s 35(2) of the Conciliation and Arbitration Act 1904 (Cth) provided that an appeal shall be made within 21 days after the date of the award or decision appealed against. By s 41(1) of the Conciliation and Arbitration Act the Commission was given wide powers in relation to an industrial dispute and by s 41(2) a reference in s 41(1) to an industrial dispute was expressed as 'shall, unless the contrary intention appears, be read as including a reference to any other proceedings before the Commission'. Further, by s 41(1)(m) of the Conciliation and Arbitration Act the Commission had power to extend any prescribed time. Gibbs CJ, Wilson and Dawson JJ found that there was no apparent reason why the general provisions of s 41 should not apply to the hearing of an appeal at all its stages, including a hearing whether the appeal had been properly instituted (529). Their Honours then went on to find (529 - 530):
    

20. 
    After referring to part of this passage in Re Coldham, the Full Bench in Arpad Security Agency made the following findings (1288 - 1289):
    

(a) The Commission is a Court of Record (see section 12), so that the comments made at p. 220 of the report of the judgment in Coldham's Case (op. cit.) are applicable.

(b) Having regard to the objects of the Act set out in section 6 and section 27, section 84(3) cannot be regarded as being intended to place a technical impediment in the way of the Full Bench. Section 6(c) lends this emphasis to the provisions of the Act.

(c) Indeed, the words 'unless otherwise provided in this Act', contained in section 27(1), do not prevent the Commission extending time within which to file an appeal. Those words govern the exercise of the powers conferred upon the Commission by section 27. (Those powers exist 'in relation to any matter before it'. There is no limitation there). One of those powers is the power contained in section 27(1)(n) to extend 'any prescribed time'. Any prescribed time is as defined in Coldham's Case (op. cit.). The time of 21 days set out in section 84(3) is a 'prescribed time'. The time prescribed by regulation 78(3) is 'a prescribed time'.

However, those prescriptions do not 'otherwise provide', within the meaning of those words as they appear in section 27(1).

In other words, section 84(3) contains no provision which prevents the exercise of the power conferred by section 27(1)(n). Regulation 78(3) could not 'otherwise provide' for the purposes of section 27, because it is a regulation. Regulation 78(3) is not 'in this Act', in the words of section 27(1). It merely contains a prescribed time, and requires filing of the notice of appeal within that time. There is no exclusion of the power under section 27(1)(n), either express or implied. In fact, the expression a 'prescribed time' provides the basis for the exercise of that power. If that were not so, one would expect to find words such as, for example, 'and this time shall not be extended or otherwise altered'. Those words do not appear in section 84(3).

(d) Further, Coldham's Case (op. cit.) which deals with the then applicable Commonwealth legislation, legislation which is on all fours with this legislation, in its essential features, is authority for the proposition:-

(i) that the power to extend time can be exercised after the expiry of the prescribed time;

(ii) that the Commission as a Court of Record has power to govern its own procedure in any event and extend time;

(iii) that, that power exists and the appeal is not dead for that purpose, even though sought to be filed, as provided, out of time:

(iv) that statutorily, that power to extend exists in section 27(1) of the Act.

(e) That is fortified by the necessity to construe the Act according to its objects. Section 26(1) supports what we say, as does section 6(c).

(f) There is some distinction between section 41 of the Conciliation and Arbitration Act which contained the words 'any proceedings before the Commission', and section 27 of the State Act, which contains the words 'any matter before it'. In Coldham's Case (op. cit.) it was submitted, in a similar manner to what was submitted here, that since no appeal had been instituted there were no proceedings in those matters in which the powers of section 41 could be exercised, and further, that the power to extend time could not be invoked after the relevant time had expired.

The High Court held (see pp. 219-220) that:-

The word 'proceedings' has frequently been said to have a wide and general application, and it would certainly include both an appeal and an application for an amendment or an extension of time. If a notice of appeal has been given, and, when the matter comes before a Full Bench, it appears that notice is so defective in substance that it fails to institute the desired appeal, an application for an order allowing an amendment, or correcting the defect, or extending the time for lodging the notice of appeal, either forms part of, or in itself constitutes, proceedings before the Commission in which the powers given by section 41 to make an order of those kinds can be exercised, unless some other section of the Act indicates that the provisions of section 41 are inapplicable to the particular proceedings in question. There is no apparent reason why the general provisions of section 41 should not apply to the hearing of an appeal at all its stages, including a hearing of the question whether the appeal has been properly instituted.

Similarly in section 27 the word 'matter' is, it seems to us, even wider than the word 'proceedings', and thus, a fortiori, the same power exists even after time has run out, for the Commission to extend time, on application. In our opinion, the word 'matter(s)', in this context, means 'a controversy come before a Court of Justice', (see South Australia v. Victoria [1911] 12 CLR 667 per Griffith CJ. at p. 674-675). Thus, Coldham's Case (op. cit.) is still a most apposite authority.

There is clearly power in the Commission here, to extend the time within which a notice of appeal can be filed. That power extends to the prescribed time also for filing an application to extend time, which appears in regulation 78(3). Regulation 78(3), as a regulation could not be read as inhibiting the exercise of that power, and in fact, may attract the exercise of that power conferred by section 27(1)(n). The power exists, therefore, after the time prescribed has expired.

21. 
    Whilst Arpad Security Agency concerned an appeal sought to be instituted against a decision of an Industrial Magistrate under s 84(4) of the Act, it has been accepted since the decision was made that the Full Bench has power to extend time to institute an appeal under s 49 of the Act against a decision of the Commission: see, for example, Rebelo v Coles New World Pty Ltd (1989) 69 WAIG 1294, Esze v Layer (1993) 73 WAIG 1222 and Metal and Engineering Workers' Union – Western Australia v AOC Australia Pty Ltd (1994) 74 WAIG 2641.
    
22. 
    The contentions raised on behalf of the Director General in this matter are similar to the arguments raised in Arpad Security Agency.
    
23. 
    The first matter the Full Bench must turn its mind to in this appeal is whether the reasoning of the Full Bench in Arpad Security Agency should not be followed. In Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Director General, Department of Education and Training [2010] WAIRC 00089; (2010) 90 WAIG 127 I considered the principles that apply when an appellate body considers whether to overturn an earlier decision. At [12] - [13] I observed:
    

Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability [sic] of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 at 620 per Aickin J.

This Court has never regarded itself as bound by its own decisions, which is all the more appropriate now that it is a court of last resort for all purposes. There is a point of view that different considerations should govern the situation of an intermediate court of appeal: see Young v Bristol Aeroplane Co Ltd [1944] KB 718; Davis v Johnson [1979] AC 264; Miliangos v Frank (Textiles) Ltd [1976] AC 443. But even if that view were correct, now that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes. There is no equivalent of s 12 of the Administration of Justice Act 1969 (UK) to authorize 'leap-frog' appeals which would by-pass those courts as the Court of Appeal may be by-passed in the United Kingdom. See, however, Sanofi v Parke Davis Pty Ltd [No 1] (1982) 149 CLR 147. In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this Court, rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty (269 - 270).

This reasoning was applied by the Full Bench in Hanssen Pty Ltd v Construction, Forestry, Mining and Energy Union (Western Australian Branch) [2004] WAIRC 10828; (2003-2004) 84 WAIG 694.

Unlike other courts of appeal, the High Court has power to review and depart from its previous decisions. However, such a course is not lightly undertaken. In The Commonwealth v Hospital Contribution Fund (1982) 150 CLR 49 Stephen J (59) with whom Aickin J agreed (66) specified the following four matters that will justify departure by the High Court from earlier decisions. These are:

(a) The earlier decisions do not rest on a principle carefully worked out in a significant succession of cases;

(b) There was a difference between the reasons of the justices constituting the majority in one of the earlier decisions;

(c) The earlier decisions have achieved no useful result but to the contrary have led to considerable inconvenience;

(d) The earlier decisions have not been independently acted on in a manner which militates against reconsideration.

This criteria was applied in John v Commissioner of Taxation of the Commonwealth of Australia (1989) 166 CLR 417, by Mason CJ, Wilson, Dawson Toohey and Gaudron JJ (438 - 439). Whilst it is the case that the Full Bench can overrule its own decisions it is my view that it should only do so when an earlier decision is patently wrong in law and when at least one of criteria set out by Stephen J in Hospital Contribution Fund is made out.

24. 
    Thus, the first question that must be answered is whether the decision in Arpad Security Agency is patently wrong in law.
    
25. 
    I do not agree that the observations made by Wheeler JA in Saldanha, with whom Pullin JA and Le Miere J agreed, supports the Director General's submission that the Full Bench has no power to extend time to an applicant to institute an appeal. At [5] of her Honour's reasons for decision, Wheeler JA observed:
    

26. 
    As her Honour observed, the Industrial Appeal Court is a statutory court which has a limited jurisdiction. Whilst the judges who sit on the Industrial Appeal Court are judges of the Supreme Court (see the definition of 'judge' in s 7(1) of the Act), the Industrial Appeal Court exercises no powers of the Supreme Court and has no inherent jurisdiction of the Supreme Court. The jurisdiction, powers and functions of the Industrial Appeal Court are solely found in Part IV of the Act and in s 96K of the Act. Section 96K confers jurisdiction on the Industrial Appeal Court to hear and determine an appeal against a decision made under s 96J by the Industrial Magistrate's Court. Section 96K prescribes a different scheme of the limits imposed on the time to bring an appeal than the right to appeal a decision of the Commission prescribed by s 90. Section 90(1) and s 90(2) provide as follows:
    

(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; or

(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.

(2) An appeal under this section shall be instituted within 21 days from the date of the decision against which the appeal is brought and may be instituted —

(a) by any party to the proceedings wherein the decision was made; or

(b) by any other person who was an intervener in those proceedings.

27. 
    Of importance, the Court is not the Commission. Thus, in the exercise of its jurisdiction the Court cannot invoke the powers conferred upon the Commission in s 26 or s 27 of the Act.
    
28. 
    In Saldanha the observations made by Wheeler JA are essentially that the scheme in Patterson that provided for a right of appeal from a decision of the Government and Related Employees Appeal Tribunal (the Tribunal) to the Court of Appeal of New South Wales was analogous to the statutory scheme of appeal to the Industrial Appeal Court established by the provisions of the Act.
    
29. 
    In Patterson s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) provided that an appeal from the Tribunal 'shall be made within 21 days after the date of the Tribunal's decision on the question of law the subject of the appeal and shall be made in accordance with the rules of the Supreme Court'. The question arose whether the power to enlarge time for appeal provided by the New South Wales Supreme Court rules applied to an appeal from the Tribunal. However, the rule which dealt with appeals to the Court of Appeal provided that 'an appeal must be instituted within 28 days after the material date or within such extended time as the court below or the Court of Appeal may fix'. It was argued that this rule could be relied upon to empower the court to enlarge time by applying the well-known principle that when the legislature confers jurisdiction on a court to hear and determine a matter it imports the ordinary incidents and procedures of the court including its relevant rules and cases cited therein (239). Moffitt P, with whom Glass and Priestley JJA agreed, held that the principle relied on was no more than a rule of construction and only applies in the absence of express words to the contrary or of reasonably plain intendment and that a contrary intendment was found in s 55(1) of the Government and Related Employees Appeal Tribunal Act which provided for a time limit of 21 days whereas the rule of court provided for 28 days. It was also found that as s 55(1) was the later statutory provision, s 6 of the Supreme Court Act 1935 (NSW) did not apply (239).
    
30. 
    Wheeler JA in Saldanha, after having regard to the facts in Patterson, found there was a significant difference between the legislation in Patterson and the provisions of the Act. She also found that there is not a reference in the Act to the Supreme Court or Court of Appeal Rules (which provide for extensions of time) [6].
    
31. 
    Her Honour drew from Patterson two principles. The first is that an appeal is a creature of statute. The second is that the subject matter and legislative policy of the Act is an important factor to be considered when determining whether the court has power to extend time. In [8] her Honour observed:
    

32. 
    Her Honour also observed that there is no indication in the Court's regulation making power, conferred by s 113 of the Act to make regulations providing for the extension of time for the doing of any act [9]. She also rejected the appellant's argument that reg 26 of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations could be relied upon to empower the Court to extend time. Regulation 26 provides:
    

(2) Non‑compliance with any of these regulations shall not render void any proceedings before the Court, or the Presiding Judge, but the proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court, or the Presiding Judge, as the case may be, thinks fit.

33. 
    After referring to reg 26, her Honour found that the requirement under s 90 of the Act to institute an appeal to the Court within time is not a procedural requirement, but a precondition to the competence of the appeal.
    
34. 
    In any event (although Wheeler JA did not so find), reg 26 only empowers the Court to waive procedural requirements found in the Industrial Relations (Western Australian Industrial Appeal Court) Regulations, whereas the limit for appeals to the Court is found in s 90 of the Act.
    
35. 
    I agree that the reasoning applied by Wheeler JA in Saldanha is in part the same as applied by Fielding C in Richardson. However, I do not agree that it necessarily follows that s 27(1)(n) of the Act does not provide the Full Bench with power to make an order to enlarge the time for a party or an intervener to institute an appeal.
    
36. 
    In Richardson Fielding C found the Commission had no power to extend the time to the applicant to refer a claim under s 29(1)(b)(i) of the Act that she was harshly, oppressively and unfairly dismissed by her employer on 2 December 1993. The decision of Fielding C was delivered on 14 March 1994. The day before the applicant was dismissed an amendment to s 29(2) of the Act came into effect on 1 December 1993 which provided that (s 10 of the Industrial Relations Amendment Act 1993 (WA)):
    

37. 
    Commissioner Fielding observed that power to extend time in s 27(1)(n) of the Act is conditioned by the caveat, '(e)xcept as otherwise provided in this Act' (1017). He then found (1017 - 1018):
    

There is a marked difference between the way in which the Act deals with time limits for other proceedings instituted in the Commission as, for example, proceedings under sections 48, 49 and 84. In those cases, the Act merely stipulates that such proceedings (i.e. appeals) 'shall' be instituted within a given time, not that they 'shall not' or 'cannot' be dealt with after a given time, as is the case in respect of proceedings instituted under section 29(1)(b)(i). Thus, the decision of the Full Bench in Arpad Security Agency Pty Ltd v. The Federated Miscellaneous Workers Union of Australia, Hospital, Service & Miscellaneous, WA Branch (1989) 69 WAIG 1287 which held that the Commission was empowered by section 27(1)(n) to extend the time limit imposed by section 84, even out of time, is distinguishable. For the same reasons, section 64 of the Interpretation Act 1984, which authorises a power to extend time to be exercised out of time, is of no assistance to the Applicant, if, which is doubtful, it has any application to section 27(1)(n) of the Industrial Relations Act 1979.

38. 
    Importantly, Fielding C distinguished the way in which the Act deals with time limits for appeals instituted under s 49 of the Act and the decision of the Full Bench in Arpad Security Agency.
    
39. 
    In Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Fullagar J explained the distinction between statutes dealing with procedure and statutes of a procedural character, is that (286):
    

40. 
    His Honour then went on to observe that statutes of limitation which are traditionally regarded as procedural which impose a time limit are concerned with remedies as distinct from rights (286): see also General Motors-Holden's Ltd v Di Fazio [1979] HCA 43; (1979) 141 CLR 659.
    
41. 
    The effect of non-compliance with a procedural provision that does not erect a bar to the enforcement of a right to bring an action (as found in Richardson), is that compliance can be waived or an opposing party can be estopped from raising non-compliance in certain circumstances.
    
42. 
    The effect of time limits that impose a condition of a new right was explained by Windeyer J in Australian Iron & Steel Ltd v Hoogland [1962] HCA 13; (1962) 108 CLR 471. At (488 - 489) his Honour said:
    

43. 
    In some decisions legislative provisions that abolish substantive rights or liabilities are referred to as substantive or jurisdictional, or as creating an essential condition which forms part of a statutory right.
    
44. 
    After the decision in Richardson was delivered, s 29 was amended to provide in s 29(3) of the Act an express power to extend time to an employee to refer a claim under s 29(1)(b)(i) of the Act. In Aurion Gold v Bilos [2004] WASCA 270; (2004) 84 WAIG 3759 McLure J, with whom Steytler J agreed, characterised the effect of s 29(3) as a substantive provision and found the power to extend time in s 29(3) was to extend the jurisdiction of the Commission to deal with a matter rather than create an exercise of a power in relation to a matter already within jurisdiction. At [18] - [28] her Honour observed:
    

'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'.

Under the Interpretation Act 1984 (WA), 'prescribed' means prescribed by or under the written law in which the word occurs.

In a series of decisions the Commission and Full Bench, relying on the plainly prohibitive language in the former s 29(2), held that compliance with the time limit was an essential condition of the right to refer to the Commission an unfair dismissal claim and failure to comply rendered proceedings a nullity: Satie v Swan Television and Radio Broadcasters Ltd (1999) 79 WAIG 955 at 955 - 956; Old Ferry Co Pty Ltd v Mario Gino Bertelli (1999) 79 WAIG 3547 at 3549 - 3550; E J Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 107 [sic] at 1017 - 1018; Westrail v Durham (1994) 74 WAIG 1882.

Thus, the prevailing view was that under the former s 29(2) referral within 28 days was an essential preliminary to the exercise of the Commission's power or authority and went to the jurisdiction of the Commission (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 389).

There is also authority that the general provision giving the Commission the power to extend time did not apply to the time limit in the former s 29(2), either because the Act otherwise provided in s 29(2) or because the general power does not apply to extend the jurisdiction of the Commission but, rather, gives it power incidental to the exercise of its established jurisdiction: E J Richardson v Cecil Bros Pty Ltd (supra) at 1017 - 1018.

It appears this Court was never called on to rule on the proper construction of s 29(2) before it was amended. There is authority in this Court that s 29(1)(b) does not expand the Commission's jurisdiction: Coles Myer Ltd (supra). However, it does not follow from the reasoning or result in that case that the time limit in s 29(2) is procedural rather than substantive and jurisdictional. Section 23 is to be read subject to the Act. The language of the former s 29(2) was peremptory and prohibitive. Further, the legislature clearly intended to treat employees differently from other applicants. In my view, the conclusion that compliance with the time limit in the former s 29(2) was an essential condition of the right and the Commission did not have power to extend time was correct. It is consistent with the approach and analysis taken by the High Court in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265.

It was in the context of the decisions to which I have referred that the legislature acted to ameliorate the position. In the second reading speech for the Amendment Act, the relevant Minister said:

'The present 28-day time limit for lodging claims is considered too inflexible and has denied just outcomes in cases of genuine need in the past. Accordingly, the commission will have the ability to hear claims lodged out of time if it considers it would be unfair not to do so.'

The first sentence is an acknowledgment of the decisions to the effect that the time limit was jurisdictional and could not be extended. The central question is whether in enacting s 29(2) and (3) in their current form the legislature intended to change the character of the time limit from one which forms part of a statutory right (and thus is substantive and, in context, jurisdictional) to one which is merely procedural and only bars the remedy. In construing the legislation, regard must be had to the consequences that flow from its characterisation.

The appellant contends that the Commission has jurisdiction to hear a referral by an employee of an unfair dismissal claim only if the referral is made within the prescribed time or at a later time if the referral is accepted by the Commission after making a finding that it would be unfair not to accept the referral. The consequences if the referral is not made within time or the Commission does not accept the referral under subs (3) are that the proceedings would be a nullity; the conditions (being, in effect, conditions precedent to the exercise of jurisdiction) cannot be waived, even if they are imposed for the benefit of the party said to have waived it; and the proceedings cannot be subsequently validated with retrospective effect, that is, on a nunc pro tunc basis: Commonwealth v Verwayen (1990) 170 CLR 394 at 422 - 428; Re Monger; Ex parte Cross [2004] WASCA 176 at [178].

On the other hand, if the requirements in subs (2) and (3) are procedural, the proceedings would not be a nullity, the requirements could be waived and the proceedings validated subsequently on a nunc pro tunc basis: Emanuele v Australian Securities Commission (1997) 188 CLR 114; Re Monger; Ex parte Cross (supra) at [165].

There are strong indications that compliance with subs (2) or (3) constitute an essential preliminary to the exercise of the Commission's jurisdiction. Firstly, if the legislature intended to alter the character of the time limit in subs (2) from substantive to procedural, it is to be expected that the general provision in s 27(n) to extend time would apply, in which event subs (3) would be unnecessary. Secondly, subs (3) gives the Commission an entitlement to 'accept a referral', which language is indicative of an extension to the Commission's jurisdiction rather than the exercise of a power in relation to a matter already within jurisdiction. Thirdly, there is nothing in the second reading speech to the Amendment Act to suggest the legislature intended to alter the existing character of the time limit as a condition of the exercise of the right but merely to increase the flexibility of its application.

45. 
    When construing legislation the provisions of the Act must be read in its entirety in context and may require consideration of the general purpose and policy of the provisions: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] (McHugh, Gummow, Kirby and Hayne JJ); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044 [41] (French CJ and Crennan J). In construing a power to extend time for compliance, the policy revealed in the legislation must be analysed: Saldanha [8].
    
46. 
    In Re Coldham Gibbs CJ, Wilson and Dawson JJ construed the provisions of the Conciliation and Arbitration Act (which provided for the power to extend any prescribed time and the time limit on appeals to the Full Bench) by finding (526 - 527):
    

'(a) the procedure of the Commission is, subject to this Act and the regulations, within the discretion of the Commission;

(b) the Commission is not bound to act in a formal manner and is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks just; and

(c) the Commission shall act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms.'

47. 
    At (529) their Honours held that these provisions reveal a clear and understandable intention that proceedings before the Commission should be directed to the merits and that technicalities and legal forms should not be regarded. They then found that there was nothing in the Conciliation and Arbitration Act that suggests that the power given by s 41(1)(m) cannot be exercised after the prescribed time, which is sought to be extended, has expired, if the circumstances justify that course (529).
    
48. 
    It is notable that in substance, equivalent legislative objects and commands found in s 2(c), s 39(1), s 40(1)(a), s 40(1)(b) and s 40(1)(c) of the Conciliation and Arbitration Act are to be found in the Act. In particular:
    

(b) it is a principal object of the Act to 'provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality' (s 6(c));

(c) in the performance of its functions the Commission is to act with as much speed as the requirements of the Act and a proper consideration of the matter before it permit (s 22B);

(d) in the exercise of its jurisdiction under the Act the Commission shall:

(i) act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms (s 26(1)(a)); and

(ii) not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just (s 26(1)(b)); and

49. 
    When the provisions of the Act referred to in [48] of these reasons are read together with s 49(3) of the Act there is nothing in those provisions that prohibit the power in s 27(1)(n) being exercised by the Full Bench to extend time to institute an appeal against a decision of the Commission. In particular, there is nothing 'otherwise provided' in the Act which would exclude the operation by the Full Bench of the power to extend time in s 27(1)(n) of the Act.
    
50. 
    Other than the principal objects of the Act, these provisions have no application to the jurisdiction conferred upon the Industrial Appeal Court who can only hear appeals in limited circumstances and is not empowered with any of the powers and functions of the Commission in s 27(1) of the Act.
    
51. 
    Importantly, the subject matter of appeals to the Full Bench from any decision of the Commission is unrestricted. Whilst the Full Bench is required pursuant to s 22B of the Act to act with as much speed as the requirements of the Act and a proper consideration of the matter before it permit, there is nothing in the Act that provides for a legislative policy of ensuring certainty in relation to decisions of the Commission. Patterson concerned a right of appeal from dismissal from the public service. Moffitt P discerned that there was a policy in the provisions of the Government and Related Employees Appeal Tribunal Act that replacement appointment of a dismissed officer could be made if there was certainty of no appeal after the time for filing an appeal had expired (240).
    
52. 
    Appeals against decisions of the Commission are not confined to dismissals, but the Full Bench is called upon to hear appeals in respect of a myriad of industrial matters, including resolving whether particular matters are industrial matters. Even when determining a claim of harsh, oppressive or unfair dismissal referred under s 29(1)(b)(i) of the Act, the Commission and the Full Bench on appeal (pursuant to s 49(5)(b) and s 49(6) of the Act) is not required to order reinstatement but can order re-employment in another position or compensation for loss and injury (s 23A(4) and s 23A(6)). Pursuant to s 49(5)(b) and s 49(6) of the Act the Full Bench can vary a decision of the Commission and if so varies the decision shall be in the terms which could have been awarded by the Commission that gave the decision.
    
53. 
    Thus, it is apparent that as in 1989 when Arpad Security Agency was decided by the Full Bench, the relevant provisions of the Act remain on all fours with the legislation considered by the High Court in Re Coldham.
    
54. 
    I do not, however, agree that the reasoning of Sharkey P in Arpad Security Agency is without error. I do not agree with the observation that the Commission as a court of record has power to govern its own procedure in any event and extend time. The Commission is not a superior court of record and as such it has no inherent jurisdiction. Its jurisdiction is limited to that expressly provided in the Act: Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315; Australian Glass Manufacturing Co Pty Ltd v Transport Workers' Union of Australia, Industrial Union of Workers, Western Australian Branch (1992) 72 WAIG 1499; see also the recent observations of the Full Bench in The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00534; (2014) 94 WAIG 800 [9] - [10].
    
55. 
    Whilst I do not agree that the Commission has any inherent or implied power to extend time, the observation of Sharkey P in Arpad Security Agency was obiter, as it was found in that case that the Full Bench was expressly authorised to extend time to institute an appeal by operation of s 27(1)(n) of the Act.
    
56. 
    I also do not agree that the characterisation of the amended and now repealed s 29(2) of the Act considered in Richardson and Aurion Gold can be applied to s 49(3) and s 27(1)(n) of the Act. Firstly, as McLure J pointed out in Aurion Gold the language in the former s 29(2) was peremptory and prohibitive and the legislature clearly intended employees to be treated differently from other applicants [23].
    
57. 
    Secondly, the former s 29(2) of the Act was enacted subsequent to s 27(1)(n). In Richardson the former s 29(2) had come into effect one day prior to the termination of Ms Richardson's employment. However, the same cannot be said about s 49(3) and s 27(1)(n) of the Act. Section 27(1)(n) stands unamended since the Act was passed in 1989 and s 49(3) has not been amended in a way that is material to this appeal. The only amendment made to s 49(3) was to repeal a specific right of appeal that was vested in the Attorney General.
    
58. 
    Section 49(2) of the Act creates a right of appeal; thus its effect is substantive and jurisdictional. Whilst s 49(2) creates the right by its terms, the way in which the right is to be exercised is in the manner prescribed. There are two provisions that prescribe the manner in which a right of appeal may be instituted. The first provision is s 49(3) which prescribes not only the time limit for instituting an appeal, but also provides standing to parties and interveners to bring an appeal. When s 49(3) and s 27(1)(n) are read together with principal object s 6(c), s 22B, s 26(1)(a) and s 26(1)(b) of the Act, it is clear that the time limit in s 49(3) is procedural and only bars the remedy (the right to institute an appeal) unless the Full Bench exercises its discretion to extend time.
    
59. 
    For these reasons, I am of the opinion that Arpad Security Agency should not be overruled. I am also of the opinion that the Full Bench should make an order to extend time to United Voice WA to institute an appeal against the decision of the Commission in CR 51 of 2012.