Conclusion – Exclusive jurisdiction of the Industrial Magistrate's Court

Conclusion – Exclusive jurisdiction of the Industrial Magistrate's Court

90. 
    The current operative provisions of s 83 of the Act provides:
    

(a) the Registrar or a deputy registrar;

(b) an industrial inspector;

(c) in the case of an award or industrial agreement, any organisation or association named as a party to it;

(d) in the case of an award, industrial agreement or order, an employer bound by it;

(e) any person on his or her own behalf who is a party to the instrument or to whom it applies;

(f) if an employee under an employer‑employee agreement is a represented person, a representative acting on his or her behalf.

(2) In this section —

(a) an award; and

(b) an industrial agreement; and

(c) an employer‑employee agreement; and

(d) an order made by the Commission, other than an order made under section 23A, 32, 44(6) or 66.

(3) An application for the enforcement of an instrument to which this section applies shall not be made otherwise than under subsection (1).

(4) On the hearing of an application under subsection (1) the industrial magistrate’s court may, by order —

(a) if the contravention or failure to comply is proved —

(i) issue a caution; or

(ii) impose such penalty as the industrial magistrate’s court thinks just but not exceeding $2 000 in the case of an employer, organisation or association and $500 in any other case;

or

(b) dismiss the application.

(6) An order under subsection (5) —

(a) may be made subject to any terms and conditions the court thinks appropriate; and

(b) may be revoked at any time.

(7) An interim order may be made under subsection (5) pending final determination of an application under subsection (1).

(8) A person shall comply with an order made against him or her under subsection (5).

Penalty: $5 000 and a daily penalty of $500.

91. 
    The jurisdiction conferred under s 83(5), when read with the whole of s 83, is that the power of the Industrial Magistrate's Court to make an order against a person is injunctive in nature and consequential on a finding of a breach of an award, industrial agreement or order or consequential pending the final determination of proceedings for a breach of such instruments. The jurisdiction to make an order arises:
    

(b) pending the final determination of whether the person in question has contravened or failed to comply with a provision of an award, industrial agreement or order, an interim order can be made.

92. 
    However, any order made against the person under s 83(5) must be for the purpose of preventing any further contravention or failure to comply with the provisions of the award, industrial agreement or order.
    
93. 
    At the heart of the submission made on behalf of the Director General is a submission that the Full Bench, in determining whether proceedings before the Commission are proceedings that seek the enforcement of an award, must not confine its consideration of the matter to the relief sought, but must look at all of the relevant facts and matters upon which findings of fact and law are sought to be made in support of the remedy. I do not agree that this approach is correct.
    
94. 
    In my respectful opinion, the determination of this issue starts from a consideration of the nature of the relief sought and whether the Commission is called upon to exercise arbitral power.
    
95. 
    The difference between an exercise of judicial power and arbitral power was explained by Isaacs and Rich JJ in The Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434, 463 as:
    

96. 
    In Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656, 666 the High Court put the distinction more simply:
    

97. 
    Accordingly a judicial function arises when the resolution sought is ascertainment of legal rights and obligations as opposed to the creation of new rights and obligations. In reclassification proceedings the Commission usually is called upon to exercise arbitral power; that is to create a bundle of new rights and obligations. The Industrial Magistrate's Court acting under s 83(1) and s 83(4) of the Act is conferred with judicial power to determine whether an award, industrial agreement or order has been complied with.
    
98. 
    In Crewe and Sons the Full Bench quashed an order by the Commission that an employer pay three of its employees annual leave loading prescribed by the Metal Trades (General) Award No 13 of 1965. The order was made under s 44 of the Act. In a unanimous decision of the Full Bench they observed that:
    

(b) the power and duty to enforce orders and awards is conferred separately in the Act by separate express provisions upon the Full Bench (s 84A) and the Industrial Magistrate (s 83) (2626).

99. 
    The Full Bench in Crewe and Sons referred to the decision of the High Court in Re Cram; Ex parte The Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 in which the High Court held that the making of a binding declaration or right is the exercise of judicial power. The Full Bench then summarised the principles enunciated by Mason CJ, Brennan, Deane, Dawson and Toohey JJ in Re Cram as follows (2627):
    

(2) A claim for the enforcement of a provision in an award for the payment of wages to an employee is also a claim for the enforcement of an existing legal right.

(3) Claims for the enforcement of existing legal rights necessarily invoke the exercise of judicial power.

(4) The Court held that there was no jurisdiction in the Board to determine or enforce a legal right to payment of wages on the part of employees in respect of a past period during which they had been stood down or refused work or to enforce the provisions of an award regulating the right to payment of wages for such a period.

(5) Thus, the authority was denied the power of judicial determination which included, to use the words of Kitto J. in Aberdare Collieries Case (op. cit.) 'the giving of decisions in the nature of adjudications upon disputes as to rights or obligations arising from the operation of the law upon past events or conduct'.

(6) The making of a binding declaration of right is an instance of the exercise of judicial power.

It stands outside the arbitral function.

But there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation. The formation of views and opinions on matters of interpretation in arbitral proceedings does not of itself amount to a usurpation of judicial power (see Cessnock Collieries Case (op. cit.) and Australian Coal and Shale Employees' Federation Case (op. cit.) at page 174 and R. v. Gough; ex parte Key Meats Pty Ltd (1982) 148 CLR 582 at 596-597) (our underlining).

[Put in the context of the Industrial Relations Act (W.A.) it would not necessarily amount to an intrusion on the section 46 power].

(7) Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties [see Aberdare Collieries Case (op. cit.)]. Of course, the formation of such an opinion does not bind the parties and cannot operate as a binding declaration of rights.

(8) Despite the reference by Kitto J. in Aberdare Collieries Case (op. cit.) to 'the distinction between a power of arbitral decision in respect of the future and a power of judicial determination of existing rights and obligations', the arbitral function includes the determination of a dispute relating to past transactions, events and conduct. Commercial arbitration often involves the determination of such a dispute and so does industrial arbitration.

100. 
     Thus, it is clear that the Commission when exercising an arbitral function is not prohibited from interpreting industrial instruments. It necessarily follows that whilst a Commissioner may not make a binding declaration of the rights and obligations of parties under an industrial instrument, it is open to the Commission to make a binding determination of future rights and obligations.
     
101. 
     In J-Corp an application was made under s 44 of the Act over the alleged refusal of right of entry to two union officials by J-Corp Pty Ltd. The parties were bound by the Building Trades (Construction) Award 1987 (the Construction Award) which contained a right of entry clause. The matter was referred for hearing and determination and after hearing from the parties an order was made requiring J-Corp Pty Ltd to produce and provide copies of particular documents relating to the terms of contracts with sub-contractors and the names of apprentices employed by sub-contractors to the union. On appeal, J-Corp Pty Ltd argued the true purpose of the application was to enforce the right of entry conferred upon J-Corp Pty Ltd by the Construction Award. The Full Bench rejected the argument. It found (1188 - 1189):
     

As the Full Bench observed in Registrar v. CSA 69 WAIG 2937 at 2938, proceedings under s.84A of the Act, which are referred to as 'enforcement proceedings', are the subject of something of a misnomer. In fact, no 'enforcement' occurs under s.83 or s.84A, except insofar as there can be payments of amounts 'underpaid' in breach of an award under s.83. But in the sense that enforcement means that an order can be made requiring a person to comply with his/her obligations under the award, no such order can be made. In that sense then, there is no power to 'enforce', in the case of s.83, any order or any award. There is no power to order a right of entry either in this particular case. The powers, too, are mainly to impose a penalty for non-compliance with the award if the matter comes to the Industrial Magistrate, and a similar observation can be made that 'enforcement' is a misnomer for the proceedings.

Nothing in s.44(9) of the Act says that what it prescribes must be purely an arbitral decision. S.44(9) reads as follows:-

'Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.'

In the absence of the dichotomy between judicial and arbitral powers which exist because of the Constitution in the Federal area, there is no reason why decisions, which are to some extent judicial, cannot be made under s.44, provided that the decision made resolves the question or dispute or disagreement before the Commission. S.44(9) supports that view in its words, as does s.44(12). Of course, they cannot be decisions which purport to enforce an order or award in terms of s.83 or s.84A of the Act, or which are the subject of other specific provisions of the Act (eg s.66 of the Act).

Insofar as there is no power in the Industrial Magistrate to order re-entry, as was sought here, and insofar as the Commission is empowered under s.44(6) to make orders of a wide ranging nature for the reasons set out therein, and insofar as the Commission is empowered to deal with questions in dispute, etc, under s.44(9), and, in fact, to hear and determine a question, dispute or disagreement, there is no reason why it should not make orders in relation to the right of entry under an award when no provision exists for the making of any order remedying the situation in the Industrial Magistrate. That was the point made by the Full Bench in Springdale Comfort Pty Ltd v. BTA and Others (op cit) to which we have just referred.

In short, these proceedings were not enforcement proceedings. They were proceedings directed to providing a remedy which did not exist under s.83 of the Act, namely of permitting or authorising entry to the site. In so holding, we apply the decision of the Full Bench in Springdale Comfort Pty Ltd v. BTA and Others (op cit), which in substance is not distinguishable. However, even were there no such decision, it is quite clear, for the reasons we have expressed, that these were not enforcement proceedings.

There was therefore jurisdiction in the Commission to make the orders which it made, and we apply Springdale Comfort Pty Ltd v. BTA and Others (op cit) (FB) at page 468 per O'Dea P, with whom Martin and Negus CC agreed.

102. 
     If the facts found in J-Corp were applied to proceedings brought prior to the amendments made to s 83 in 2002 in the Industrial Magistrate's Court for breach of the Construction Award, the Industrial Magistrate could only impose a penalty on J-Corp Pty Ltd if it were found that the company had breached the Construction Award. The Industrial Magistrate could not, however, provide the remedy provided by the Commission at first instance; that is it could not order production of the documents the union officials were seeking.
     
103. 
     In St Michael’s School the union sought an order that one of its members be classified at level 4 within the classification of the Independent Schools Administrative and Technical Officers Award. The Full Bench identified the dispute as a dispute about what classification should apply to the duties of the employee. At [41] - [44] the Full Bench found:
     

Its resolution required a finding of fact as to her duties and the application of the terms of the award (perhaps involving its interpretation) to those duties, to determine whether her classification should be as a Level 4, not a Level 3, employee, and whether the order sought should therefore issue.

There was clearly no attempt to enforce an order to pay the monies or indeed to enforce the award. The matter involved a determination of what classification under the award applied to an employee. The order, as the Commissioner correctly observed, did not seek to compel the employer to do anything. Clearly, if the respondent was successful in obtaining the order and Mrs Murray was not paid what a Level 4 employee should be paid under the award, then the award would be enforceable in the Industrial Magistrate’s Court, pursuant to s.83 of the Act.

Quite plainly, therefore, the order sought was not an order for enforcement because it does not seek the enforcement of existing rights, it did not allege a breach of an award, it was not a claim for a liquidated amount said to be due under the award and to be determined according to existing legal rights. The nature of the order sought was a decision as to the future rights, conduct and obligations of the parties and of an employee and that is the essence of arbitration. Further, which is the essence of industrial arbitration, the question ultimately was what was right and fair, particularly to the employee (see Crewe and Sons v AMWSU (FB)(op cit) at page 2627 and Re Cram and Others; Ex parte Newcastle Wallsend Coal Co Pty Ltd 163 CLR 140, see also Health Services Union of Australia v Dorevitch Pathology (unreported) (No C32827 of 1999) delivered 8 February 2000 (AIRC)).

104. 
     The Full Bench in St Michael’s School characterised what was within the jurisdiction of the Commission, as the remedy sought by the applicant at first instance. The Director General in this matter is critical of this approach. The effect of the Director General's argument is that all of the arguments put in support of a claim made under s 44 of the Act must be matters that are within the jurisdiction of the Commission. I do not, however, agree that this approach to the construction of the jurisdiction of the Commission is correct.
     
105. 
     This application is a claim in part for a personal reclassification of Ms Spence. Determination of this issue should turn on an assessment of relevant, reliable and probative evidence of the work performed by Ms Spence at Burbridge School and whether the work performed by her qualifies her to be employed as an untrained teacher, in particular an untrained swimming instructor by the Director General.
     
106. 
     United Voice WA is seeking declarations that the duties and responsibilities of Ms Spence are teaching functions which are beyond the scope of the duties and responsibilities of an education assistant. United Voice WA is not, however, seeking bare declarations. The second part of its claim is that it seeks an order to compel the Director General to take steps as a nominee pursuant to Part 3 of the Teacher Registration Act 2012 (WA) to enable Ms Spence to obtain limited registration as a teacher.
     
107. 
     In considering whether to make the declarations sought by United Voice WA, the Commission is required to interpret the provisions of the 2011 General Agreement and the 1993 Teachers Public Sector Award and may be required to interpret s 64 and s 65 of the School Education Act 1999 (WA) which set out the functions of a teacher. Leaving aside the issue whether it is open to the Commission to make the declarations in the form sought by United Voice WA, such a task of interpretation of this legislation and industrial instruments is not beyond power: Re Cram Mason CJ, Brennan, Deane, Dawson and Toohey JJ (149).
     
108. 
     In Re Cram the Local Coal Authority found an employer had been wrong in standing down employees and that the employees were entitled to payment of wages. The majority of the High Court found that the Authority was engaged in determining the rights of parties which it had no jurisdiction to do, because such an exercise was part of the judicial power of the Commonwealth. Their Honours made it plain in their reasoning that ascertainment of whether the resolution of a dispute required the exercise of judicial power depended upon the nature of the dispute and not the arguments used to support the claim or the source of the claim. At (155) Mason CJ, Brennan, Deane, Dawson and Toohey JJ found:
     

109. 
     In determining whether the Director General should take steps to in effect reclassify Ms Spence by making an application to nominate her for limited registration as a teacher, it is necessary to prima facie determine whether Ms Spence has the necessary skills and experience which will provide her with some realistic prospects of success of obtaining limited registration as a teacher.
     
110. 
     If the Commission, after considering all relevant and logically probative evidence, forms the opinion, by having regard to any relevant provisions of the School Education Act, the 1993 Teachers Public Sector Award and the 2011 General Agreement, that Ms Spence has over the period of time in question acquired the skills necessary to enable her to adequately carry out teaching duties and responsibilities of a teacher, it would be open to the Commission to make the findings of fact sought by United Voice WA but not the declarations sought by United Voice WA. The declarations sought could constitute a finding that the Director General is in breach of the 2011 General Agreement, in particular the declarations in the form sought could be said to constitute binding declarations of right as to past events and thus an exercise of judicial power which are matters within the exclusive jurisdiction of the Industrial Magistrate's Court. However, it is doubtful whether a prosecution for breach of the 2011 General Agreement in the Industrial Magistrate's Court could succeed.
     
111. 
     Unless Ms Spence has limited registration as a teacher, if an application for breach of the 2011 General Agreement is brought before the Industrial Magistrate's Court, the Director General would be able to plead as a defence that since the Teacher Registration Act became operative on 3 July 2012, Ms Spence has not been registered as a teacher as required by Part 3 of the Teacher Registration Act. Nor was Ms Spence at any material time prior to 3 July 2012 registered as a teacher as required by Part 4 of the Western Australian College of Teaching Act 2004 (WA) (repealed).
     
112. 
     Section 30, s 31, s 36 and s 37 of the Western Australian College of Teaching Act, which were operative prior to 3 July 2012, provided:
     

A person must not teach in a school unless the person —

(a) is a registered teacher; or

(b) holds a limited authority to teach and is teaching in accordance with that authority.

Penalty:

(a) for a first offence, $5 000;

(b) for a second or subsequent offence, $10 000.

31. Persons who may be employed, engaged or given permission to teach in schools

A person must not employ, engage or give permission to a person to teach in a school unless the person who is employed, engaged or given permission —

(a) is a registered teacher; or

(b) holds a limited authority to teach and is employed, engaged or given permission to teach in accordance with that authority.

Penalty:

(a) for a first offence, $5 000;

(b) for a second or subsequent offence, $10 000.

36. Limited authority to teach

(1) If satisfied that an applicant has —

(a) met the requirements regarding a limited authority to teach referred to in section 37; and

(b) paid the fee, if any, prescribed by the regulations in respect of a limited authority to teach,

then the College is to issue the applicant with a limited authority to teach.

(2) A limited authority to teach —

(a) may be issued for a period of up to 2 years after the day on which it commences, as is approved by the College and specified in the authority;

(b) is to specify —

(i) the school, or schools, at which the holder of the authority is authorised to teach; and

(ii) any limitations on the subject areas or teaching duties that apply to the holder of the authority;

and

(c) may be renewed.

(1) The requirements for a limited authority to teach are that the applicant —

(a) has specialist knowledge, training, skills or qualifications;

(b) unless the College determines otherwise in a particular case, is proficient in the English language both written and oral;

(c) has been offered a teaching position, or positions, at a school or schools —

(i) for which position, or positions, a suitable registered teacher is, or teachers are, not available; and

(ii) subject to the applicant being the holder of a limited authority to teach;

(d) has not been convicted of an offence the nature of which renders the person unfit to be the holder of a limited authority to teach; and

(e) meets any other requirements prescribed by the regulations for the purposes of this section.

(2) On the application of the holder of a limited authority to teach the College may vary the information specified on a limited authority to teach under section 36(2)(b).

113. 
     This scheme is substantially repeated in the provisions of the Teacher Registration Act. Pursuant to s 31 of the Western Australian College of Teaching Act and s 7 of the Teacher Registration Act, the Director General was and is prohibited from employing a person as a teacher unless they are registered. For reasons that follow, I am of the opinion that the terms of the 2011 General Agreement do not apply to the employment of persons who are not registered as a teacher as the terms of the 2011 General Agreement must be construed by regard to the scheme of employment of teachers employed in the public sector pursuant to the provisions of the School Education Act and the Teacher Registration Act.
     
114. 
     However, in any event, the order sought is in my opinion severable from the declarations sought. Consequently, even if the Commission has no jurisdiction to make the declarations sought it may be within the jurisdiction of the Commission in this matter to make the order sought.
     
115. 
     It was argued by United Voice WA, in the proceedings at first instance, that Ms Spence has the qualifications for and has carried out the duties for some time of the work of an untrained swimming teacher. The order sought is not an order that Ms Spence be paid as an untrained teacher in accordance with the provisions of the 2011 General Agreement. The order sought is that the Director General make an application to the Teacher Registration Board for a limited authority to teach, whereby Ms Spence is the nominee of that application.
     
116. 
     It is notable that cl 7 of the 2011 General Agreement defines an 'untrained teacher' to mean a person who does not have a teacher training qualification as determined by the employer. In table 1, table 2 and table 3 of Schedule A of the 2011 General Agreement salaries, internal relief rates and casual rates of pay are prescribed for untrained teachers.
     
117. 
     Part 10 of the 2011 General Agreement sets out the qualifications necessary for swimming instructors. The relevant provisions of Part 10 provide:
     

Where a provision in this clause is inconsistent with any other provision contained within this Agreement, the provisions of this clause will apply.

Employees are not prevented from also being engaged as Swimming Instructors and Swimming Supervisors over student vacation periods.

38 SWIMMING INSTRUCTORS

38.1 Definitions

'Centre Supervisor' means a person employed by the employer to instruct or supervise swimming classes, who is responsible for the supervision of staff and who holds an approved qualification;

'Level 1 Instructor' means a person employed by the employer to instruct or supervise swimming classes, who holds an approved qualification and who has satisfactorily instructed fewer than 360 swimming lessons;

'Level 2 Instructor' means a person employed by the employer to instruct or supervise swimming classes, who holds an approved qualification and who has satisfactorily instructed more than 360, but fewer than 1500 swimming lessons;

'Level 3 Instructor' means a person employed by the employer to instruct or supervise swimming classes, who holds an approved qualification and who has satisfactorily instructed 1500 or more swimming lessons;

An 'in-term' lesson rate is 55/60 of an hourly rate and includes instructional time, changeover and other duties;

A 'vacation' rate is comprised of an hourly rate consisting of instructional time, changeover and other duties.

118. 
     Clause 38.1 of the 2011 General Agreement provides for the classification of level 1, level 2 and level 3 instructors as persons who hold an 'approved qualification' and who have satisfactorily instructed a certain number of swimming lessons. 'Approved' in cl 7 of the 2011 General Agreement means approved by the employer. Clause 6 of the 2011 General Agreement applies to employees employed by the Director General pursuant to s 235 of the School Education Act in the classifications outlined in s 237 of the School Education Act and reg 127 and reg 127A of the School Education Regulations 2000 (WA) who are members or are eligible to be members of the State School Teachers' Union of WA Incorporated.
     
119. 
     A 'teacher' is defined in cl 7 of the 2011 General Agreement as a person defined in the School Education Act, and unless otherwise specified, the term is used to include the classifications identified in cl 15 of the 1993 Teachers Public Sector Award. Section 4 of the School Education Act defines a teacher, in relation to a government school, as a member of the 'teaching staff' who is appointed under s 236(2) of the School Education Act.
     
120. 
     Section 235, s 236 and s 237 of the School Education Act provides:
     

(1) To enable the functions of the department to be performed persons are to be employed in the department —

(a) as public service officers appointed or made available under Part 3 of the PSMA; or

(b) as members of the teaching staff; or

(c) as other officers; or

(d) as wages staff.

(2) A person is not to be employed as a member of the teaching staff unless the person holds a qualification recognized by the chief executive officer as being an appropriate qualification.

(3) Subsection (1) does not affect the power of the chief executive officer to engage a person under a contract for services under section 100 of the PSMA.

(1) Part 3 of the PSMA does not apply to the teaching staff, other officers and wages staff.

(2) The powers to engage, transfer, promote and otherwise manage the members of the teaching staff, other officers and wages staff are vested in the chief executive officer.

(3) The terms and conditions of service of members of the teaching staff, other officers and wages staff are to be —

(a) in accordance with any relevant industrial award, order or agreement; and

(b) not less than those provided for by the Minimum Conditions of Employment Act 1993.

(4) Members of the teaching staff and other officers may be engaged —

(a) on a full‑time or part‑time basis; and

(b) for an indefinite period as permanent officers, or for a period not exceeding 5 years.

(5) Nothing in this section affects the operation of Part VID of the Industrial Relations Act 1979.

(6) For the avoidance of doubt it is declared that members of the teaching staff, other officers and wages staff are employed for and on behalf of the Crown.

237. Teaching staff, classes of

Without limiting section 29(1)(h) of the PSMA the teaching staff is to consist of the following classes —

(a) school administrators, that is —

(i) principals; and

(ii) any other office or position, or class of office or position, prescribed by the regulations;

and

(c) any other class prescribed by the regulations.

121. 
     Section 64 and s 65 of the School Education Act prescribe the functions of a teacher as follows:
     

(1) The functions of a teacher in a government school are —

(a) to foster and facilitate learning in students; and

(b) to give competent instruction to students in accordance with —

(i) the curriculum; and

(ii) standards determined by the chief executive officer; and

(iii) the school’s plan referred to in section 63(1)(e),

and to undertake the preparation necessary to do so; and

(c) to undertake regular evaluation and reporting of the progress of students within the terms of the school plan referred to in section 63(1)(e); and

(d) to be answerable to the principal for the educational achievement of students under his or her instruction; and

(e) to supervise students and to maintain proper order and discipline on their part; and

(f) to carry out administrative duties to meet organizational requirements relevant to the teacher’s functions; and

(g) perform any other prescribed function assigned by the chief executive officer.

(2) The functions set out in subsection (1) have effect subject to —

(a) this Act; and

(b) the instructions of the chief executive officer; and

(c) the direction and control of the principal.

65. Assigned function etc. not to be inconsistent with industrial arrangements

Nothing in section 63(1)(i) or 64(1)(g) or section 64(2)(b) or (c) enables the chief executive officer or a principal to assign a function or give an instruction or direction that is inconsistent with a term or condition of service referred to in section 236(3).

122. 
     Consequently, the 2011 General Agreement only applies to persons employed as principals, teachers and other offices or classes prescribed by the School Education Regulations. The offices prescribed to be school administrators and classes of teaching staff under s 237 of the School Education Act are prescribed in reg 127 and reg 127A of the School Education Regulations. None of these offices and classes are relevant to the appeal in this matter.
     
123. 
     It follows therefore for the 2011 General Agreement to apply to the employment of a person such as Ms Spence, the person must be employed by the Director General as a teacher. To be employed as a teacher the person must first be registered as a teacher. To obtain limited registration as a teacher a person must not only be offered a teaching position, but must satisfy the Teacher Registration Board that they meet the prescribed requirements for registration.
     
124. 
     Thus, it appears that the 2011 General Agreement is silent about the qualifications required for employment as an untrained teacher. A determination whether a particular person should be employed as an unqualified teacher is regulated by the provisions of the Teacher Registration Act which prohibits a person being employed as a teacher, including an untrained teacher, unless they are registered as a teacher pursuant to the provisions of the Teacher Registration Act. Under s 6 of that Act it constitutes an offence for a person to teach in an educational venue unless they are a registered teacher. Under s 7 of the Teacher Registration Act it is an offence to appoint, employ, engage or give permission to another person to teach in an educational venue unless the other person is a registered teacher.
     
125. 
     If a person such as Ms Spence wishes to be employed as an untrained teacher they can obtain limited registration under s 10(2) of the Teacher Registration Act. Section 10 of the Teacher Registration Act contemplates that a person can be nominated for limited registration by the Director General. The requirements for limited registration are prescribed by s 17 of the Teacher Registration Act. Section 17 provides:
     

(a) has been offered a teaching position in an educational venue by a person or entity; and

(b) is a fit and proper person to be a registered teacher; and

(c) has the English language skills, both written and oral, prescribed as suitable for limited registration as a teacher; and

(d) meets any other requirements for limited registration as are prescribed.

126. 
     Section 12 of the Teacher Registration Act also relevantly provides:
     

127. 
     It is apparent that a person cannot obtain limited registration unless they fulfil the requirements of reg 12 of the Teacher Registration (General) Regulations 2012 (WA). Regulation 12 of the Teacher Registration (General) Regulations provides:
     

(2) For the purposes of section 17(d) of the Act, a nominee offered a teaching position is to meet one of the following requirements —

(a) the nominee —

(i) holds a qualification that is, in the Board’s opinion, a teaching qualification; and

(ii) meets the professional standards approved by the Board for full or provisional registration, or has done so within the previous 5 years;

(b) the nominee holds a qualification from an Australian university or an overseas university that is, in the Board’s opinion, relevant to the teaching position;

(c) the nominee has, in the opinion of the Board, expertise or skills in a subject relevant to the teaching position;

(d) the nominee is currently enrolled in an accredited initial teacher education programme delivered in a manner approved by the Board for the purposes of this paragraph;

128. 
     Consequently, a person such as Ms Spence cannot obtain limited registration to teach as an untrained teacher unless she is offered a teaching position by the Director General.
     
129. 
     The remedy sought by United Voice WA is in effect to compel the Director General to offer Ms Spence a teaching position and make an application to nominate Ms Spence in an application to the Teacher Registration Board for limited registration. The Commission would be firstly required to determine whether the Director General should be compelled to offer Ms Spence a teaching position. However, unless Ms Spence is able to meet the requirements in reg 12 of the Teacher Registration (General) Regulations, it would be futile to compel the Director General to offer Ms Spence a teaching position and to make an application to nominate her for limited registration by an order made by the Commission.
     
130. 
     In determining whether this relief should be granted the Commission is required to consider and make findings of fact whether Ms Spence has the necessary skills and experience so that it would be right and fair that she be offered a teaching position and that the Director General be compelled to make an application to nominate Ms Spence. It should also consider whether in all of the circumstances it is fair that the Director General be required to offer her a teaching position. Whether, in fact, Ms Spence should be granted limited registration as a teacher is not a matter the Commission can determine. It is a matter for the Teacher Registration Board and is reviewable by the State Administrative Tribunal pursuant to s 21 and s 124 of the Teacher Registration Act.
     
131. 
     Leaving aside the declarations sought by United Voice WA, I do not agree that the order sought is an attempt to enforce the 2011 General Agreement. It is clear that the Commission is empowered with the jurisdiction to make the order.
     
132. 
     Until registered, a person cannot be classified within the meaning of the 2011 General Agreement as an 'unregistered teacher'. Consequently, any application to the Industrial Magistrate's Court for enforcement of the 2011 General Agreement in these circumstances would fail. In any event, what is sought by United Voice WA is the creation of a new right and obligation in respect of the employment of Ms Spence; that is the right to seek limited registration as a teacher, which is a preliminary step to the 2011 General Agreement operating to cover the terms and conditions of employment of Ms Spence. Even if the Commission grants the order sought by United Voice WA, and I make no observations as to whether it should grant this relief, unless the Teacher Registration Board grants Ms Spence limited registration the provisions of the 2011 General Agreement will not apply to the employment of Ms Spence.
     
133. 
     Turning now to the grounds of appeal, I am of the opinion that with the exception of paragraph 1(c) of ground 1 of the appeal, this ground has been made out.
     
134. 
     I am not satisfied that ground 2 of the appeal is made out. The Director General raised the issue of jurisdiction in paragraph 14 of closing submissions filed on 10 December 2013. United Voice WA then had an opportunity of considering the Director General's submissions, including the jurisdiction issue raised in paragraph 14 before it filed its closing submissions some 10 days later on 20 December 2013.
     
135. 
     In light of my findings in respect of ground 1 of the appeal, I do not find it necessary to deal with ground 3 of the appeal.
     
136. 
     For these reasons, I am of the opinion that an order should be made to allow the appeal, suspend the operation of the decision in CR 51 of 2012 and remit the case to the Commission for further hearing and determination.
     

137. 
     I have had the advantage of reading in draft form the Reasons for Decision of Her Honour the Acting President. I agree for the reasons she has given that the decision of the Full Bench in Arpad Security Agency v FMWU (1989) 69 WAIG 1287 should not be overruled. I agree 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.
     
138. 
     I also agree for the reasons given by Her Honour that the appeal should be allowed and agree with the order proposed.
     

139. 
     A dispute came before the Commission under s 44 of the Act, in which, the appellant, as applicant at first instance, claimed that its member Ms Spence had been incorrectly classified. The appellant contended that Ms Spence had been working as an untrained swimming teacher for many years. The appellant contended that Ms Spence was incorrectly classified as an education assistant. She should have been classified, according to the appellant, as an untrained teacher. The dispute was not resolved by conciliation. The matter was referred for determination. The appellant sought declarations that the work performed by Ms Spence was comprised of teaching functions and beyond the scope of the duties of an education assistant. The appellant also sought an order that the respondent be required to make an application to the Teacher Registration Board, for Ms Spence to obtain a “limited authority to teach”. This is apparently a prerequisite to a person being classified as an untrained teacher under the terms of the relevant industrial agreement.
     
140. 
     The Commission at first instance upheld the submission of the respondent that the effect of the declaration sought by the appellant, was to enforce the terms of the industrial agreement, contrary to s 83(3) of the Act. Accordingly the application was dismissed. The appellant now appeals.
     
141. 
     As the appeal was filed three days out of time, the appellant also sought an order to extend time, purportedly by the exercise of the power under s 27(1)(n) of the Act. This was opposed by the respondent, on the basis that it contended that the Full Bench has no power to extend time. The contentions raised by the parties as to this preliminary issue, and the grounds of appeal generally, are set out in the reasons of Smith AP and it is not necessary to repeat them.