Western australian industrial relations commission

Power to extend time

142. 
     A number of statutory provisions are relevant to the discussion of this issue. It is convenient to refer to them now. First, are ss 27(1)(n) and 49(2) and (3) which relevantly provide:
     

27. Powers of Commission

(1) 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; and

…

49. Appeal from Commission’s decision

…

(2) Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of the Commission.

…

(3) An appeal under this section shall be instituted within 21 days 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.

143. 
     Further, as the respondent relied heavily on a decision of the Industrial Appeal Court in Saldanha v Fujitsu Australia Ltd (2009) 89 WAIG 875, appeals to the Court arise under s 90(2) of the Act which is in these terms:
     

90. Appeal from Commission to Court

(1) Subject to this section, an appeal lies to the Court in the manner prescribed from any decision of the President, the Full Bench, or the Commission in Court Session —

(a) 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.

144. 
     At the outset, the parties referred to consistent reference being made in the past to the decision of the Industrial Appeal Court in Cousins v YMCA of Perth (2001) 82 WAIG 5. It was common ground however, that in Cousins, the matter of the power to extend time for instituting an appeal to the Full Bench was not in contest in those proceedings. Rather, the focus in the case was the existence or otherwise, of a power to institute a cross-appeal to the Full Bench.
     
145. 
     The right to commence an appeal to the Full Bench of the Commission under s 49 of the Act, as with appeals generally, is a substantive right, and is not merely a procedural step: The Colonial Sugar Refining Company, Limited v Irving [1905] AC 369.
     
146. 
     In Saldanha the issue was the competency of the appeal, it being filed outside of the 21 day time limit in s 90(2) of the Act. Wheeler JA (Pullin JA and Le Miere J agreeing) concluded that the Court is a statutory court with limited jurisdiction. The right of appeal is a creature of statute and the Court found no express power to extend time. The Court concluded, in considering and applying the decision of the New South Wales Court of Appeal in Patterson and James v Public Service Board of NSW (1984) 1 NSWLR 237, that the terms of s 90(2) are mandatory, and there is no basis to imply a power to extend time. Provisions of the Industrial Relations (Western Australian Industrial Appeal Court) Regulations 1980 were of no assistance. The Court also noted the relevant objects of the Act in s 6 and referred to the focus in the objects on negotiated outcomes and finality of proceedings, in particular in light of the restricted right of access to the Court on appeal.
     
147. 
     In Patterson, the New South Wales Court of Appeal concluded that the terms of s 55(1) of the Government and Related Employees Appeal Tribunal Act 1980 (NSW) was mandatory and compliance with the time limit of 21 days to lodge an appeal, was a jurisdictional fact. Whilst the Supreme Court Rules 1970 (NSW) had application to appeals to the Court, they contained inconsistent provisions for time limits and the specific and mandatory terms of s 55(1) prevailed over the general provisions of the Rules. Thus, an appeal lodged outside of this time limit, was incompetent.
     
148. 
     A “jurisdictional fact”, is a criterion, satisfaction of which enlivens the exercise of a statutory power or discretion: The Laws of Australia, vol 2 [2.4.2170]. A jurisdictional fact identifies a criterion, satisfaction of which mandates a particular outcome: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135. The ascertainment of a jurisdictional fact involves the proper construction of a statute, in terms of the language used and the scope of the jurisdiction concerned: Ex parte Redgrave; Re Bennett (1945) 46 SR (NSW) 122 at 125. It is more likely that a tribunal, rather than a superior court, will have its jurisdiction conditioned by the existence of a jurisdictional fact in this way: R v The Judges of the Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Limited (1978) 142 CLR 113 per Mason J at 124-127. There also is a tendency by courts not to treat facts as jurisdictional unless the legislative scheme clearly suggests it: Parisienne Basket Shoes Proprietary Limited v Whyte (1938) 59 CLR 369.
     
149. 
     There have been a number of cases where it has been held that compliance with time limits is a jurisdictional fact, for example: Bailey v Commissioner of Police [2014] NSWIRComm 53; Rail Corp (NSW) v Brown (2012) 219 IR 67; Patterson; Secretary of Department of Health (NSW) v Harvey (1990) 34 IR 58; Matkevich v New South Wales Technical & Further Education Commission (NSW) (1995) 65 IR 46; Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269.
     
150. 
     In Bailey an application was made to the Industrial Relations Commission of New South Wales by a police officer, challenging his removal from the Police Force. Provisions of the Police Act 1990 (NSW) adopt and apply with some modifications, relevant provisions of the Industrial Relations Act 1996 (NSW) to such claims. Instead of 21 days, applications “must” be made within a time limit of 14 days. Further, the terms of s 85(3) of the IR Act (NSW), which enables the Industrial Relations Commission to “accept an application that is made out of time”, which is in very similar terms to s 29(3) of the Act, has no application to police claims. Walton J, on a challenge to the competency of a claim brought out of time, held at par 21 that the reference to “must” in s 85(1) of the IR Act (NSW) indicated a legislative intention to make the filing of a claim within the specified time limit obligatory. Having regard to the legislative intention, his Honour concluded that, in applying the principles set out in Patterson compliance with the time limit was a condition precedent to the institution of a valid appeal. There is no general procedural power to extend time in the IR Act (NSW).
     
151. 
     Of note for present purposes, by s 189(1) of the IR Act (NSW), appeals to the Full Bench of the New South Wales Commission must be made within 21 days after the date of the decision appealed against “or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows”. Section 189(2) expressly enables an extension of time, either before or after the time limit has expired. Thus the power to extend time in this legislation, resides in the substantive power to appeal itself. No such provision is contained in s 49 of the Act. Had the Parliament intended s 49 to operate the same way, it could simply have inserted words to this effect.
     
152. 
     In Rail Corp an appeal was brought by a former employee under s 13 of the Transport Appeal Boards Act 1980 (NSW), which provided that such an appeal “shall be lodged with the secretary within 21 days after notice in writing of the decision to be appealed against is given to the appellant”. The Full Bench of the Industrial Relations Court of New South Wales held that it could read into the legislation a power to extend the time limit. On appeal, the Court of Appeal held (per Bathurst CJ; Beazley and Basten JJA agreeing) that this was not permissible, and that the language of the provision, in the context of the statute as a whole, and having regard to the mischief addressed in the statute, found that the time limit was a precondition to a valid appeal. Similar conclusions were reached in Matkevich and in Hocine (see too: Christies Sands Pty Ltd v City of Tea Tree Gully (1975) 11 SASR 255; Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386).
     
153. 
     Undistracted by s 27(1)(n) of the Act, in my view, s 49(3) is similarly, as was the case in Patterson, and the other cases referred to in pars 149 and 152 above, a jurisdictional fact. Compliance with the time limit is a precondition to the institution of a valid appeal to the Full Bench. The language of s 49(3) is almost identical to the language used in s 90(2) of the Act, prescribing the time limit for an appeal to the Court. In both cases, the language is expressed in mandatory terms. An appeal “shall be instituted within 21 days”. This conclusion is fortified by reference to the objects of the Act in s 6, as discussed in Saldanha, referred to below.
     
154. 
     Does then s 27(1)(n) of the Act have application to s 49(3)? It has been held by the Industrial Appeal Court in the past, that s 27(1) is comprised of largely machinery type provisions, prescribing the way the Commission deals with matters already properly before it, and does not enlarge or confer jurisdiction on the Commission, that it does not otherwise have: Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315. In Robe River, the Court came to consider the use by the Commission of the power in s 27(1)(v) of the Act, purportedly used to support interim orders compelling the employer to maintain a minimum level of manning on machinery, pending the determination of the dispute by arbitration. On appeal to the Court, it was held that s 27(1)(v) could not support such an order. As to the scope of the powers available to the Commission under s 27(1) of the Act, Brinsden J said at 317:
     

Under section 27(1)(v) the only things that may be done are giving of directions and doing all such things as are necessary or expedient “for the expeditious and just hearing and determination of the matter”. All the other items of power provided by section 27 with possibly two or three exceptions are particular matters of procedure relevant to the hearing and determination of the matter. Three of the items are concerned with entry upon a manufactory or similar type of building, inspection of work and machinery and other items in any such manufactory or building, and questioning any person who may be in or upon any such manufactory or building, all of which items might be regarded as items giving the Commission power to better inform itself in respect of the subject matter of a dispute. The interim order is one which directly deals with an industrial procedure in the industry in respect of which the parties are engaged. The respondent contends that section 27(1)(v) supports such an order but for that to be so then the subsection must be given a very wide interpretation beyond being merely a dragnet clause to cover any other form of direction or order or action of a procedural nature not covered specifically by the foregoing items. The Commonwealth Conciliation and Arbitration Act 1904 and Amendments has a similar provision to section 27 in section 41 and it contains in section 41(1)(o) an identical provision to section 27(1)(v). That subsection in the Commonwealth Act, when it was section 40(1)(p), was considered in the case of Gas Employees (Victoria) Award and Ors. (1948) 61 CAR 200 when it was held that it amounted to a machinery provision only. As the Court held, a section like section 40 or 41 is a section which enables the Court to deal with matters which have been properly brought before it. They do not confer substantive jurisdiction but merely legislate for the method by which the Court may exercise the jurisdiction already conferred upon it by other sections. I see no significant difference between the Commonwealth Act and the Act to justify us in giving to section 27(1)(v) any wider construction other than as a machinery provision. It would not support an order which is in the nature of an interlocutory injunction directly dealing with the manner in which the parties to an industrial dispute are to continue to conduct a facet of the industrial enterprise in which they are jointly engaged upon.

155. 
     Further consideration was given to s 27(1) by Kennedy J. After setting out the section, and stating that the order under challenge was not able to be supported by s 27(1), his Honour said at 319:
     

With the exception of the powers contained in paragraphs (a) and (c), each of the paragraphs prior to paragraph (v) deals with evidentiary or interlocutory procedural matters, and it is with respect to such matters that paragraph (v), in my opinion, also deals. The present order bears no relation to the ‘hearing’ of the matter as such. Nor does it, in my view, relate to the determination of the matter, “determination” representing the final disposition of a matter. (Compare the use of the words ‘hear’ and ‘determine’ in section 44(9) of the Act). To hold otherwise would be to give the Commission a very great scope for making coercive interim orders without any firm criteria and without the special procedures required by section 32(4) in the case of orders under section 32(3)(c)(i).

What the Commission was seeking to do here was to make such an order as would have been authorised by the terms of section 32(3)(c)(i), in the absence, however, of any express power. The present order, in my view, requires an express power if it is to be sustained. Section 27(1) is concerned with the method by which the Commission exercises jurisdiction already conferred on it, and does not confer substantive jurisdiction – see the Gas Employees Awards and Agreements Case (1948) 61 CAR 200.

156. 
     (See too: Re The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch (2000) 106 IR 13).
     
157. 
     Reference was also made in argument to the decision of Fielding C in Richardson v Cecil Bros Pty Ltd (1994) 74 WAIG 1017. In that case, the Commission held that the then s 29(2) of the Act, prior to the enactment of the present s 29(2) and (3), which provided that unfair dismissal claims “cannot” be made more than 28 days after the date of dismissal, was mandatory, and the general power to extend time in s 27(1)(n) was incidental to jurisdiction already established (see the consideration of this issue in Aurion Gold v Bilos (2004) 84 WAIG 3759 per McLure J, (Steytler J agreeing) at pars 22-23). In Aurion Gold too, McLure J said at par 28, that the terms of s 27(1)(n), would be expected to apply to a time limit that was procedural, and not substantive. In my view, in the context of Saldanha, Patterson, and Aurion Gold, the conclusion is compelling that the line of reasoning adopted in Richardson, applies to the present circumstances.
     
158. 
     Consideration needs to be given to an earlier decision of 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 Arpad, an appeal was lodged under s 84(3) of the Act, out of time. A challenge was made by the respondent to the effect that the power in s 27(1)(n) was procedural, and could not resuscitate an appeal that was not brought within time. In rejecting that contention, the Full Bench referred to and relied upon a decision of the High Court in Re Coldham and Others; Ex parte The Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 159 CLR 522. In that case, it was held by the Court that the terms of the then s 41(1)(m) of the Conciliation and Arbitration Act 1904 (Cth) enabled the Australian Conciliation and Arbitration Commission to extend time for lodging an appeal under s 35(4) of the federal legislation. Notably, whilst s 41(1) of the federal legislation was similar to s 27(1), it was not the same. It was expressed in wider terms to s 27(1)(n). It did not contain the important phrase “Except as otherwise provided in this Act” as appears in the preliminary part of s 27(1).
     
159. 
     Further, the consideration of the objects in the Act by the Court in Saldanha, stands in contrast to the consideration of the objects of the then federal legislation in Re Coldham. Given that the consideration of s 6 of the Act by the Court in Saldanha is a recent exposition of the terms of the legislation by the Industrial Appeal Court directly applicable in this State, then in my view, when read with Aurion Gold, the approach adopted by the Court in Saldanha should be adopted by the Full Bench. Therefore having regard to these points of distinction, I consider that the decision of the Full Bench in Arpad Security should be regarded as now having been overtaken by the combined effect of both Saldanha and Aurion Gold.
     
160. 
     For the foregoing reasons, I would conclude that the appeal is incompetent and must be dismissed.
     

Grounds of appeal

161. 
     In the alternative, if I am incorrect on the extension of time issue, as to the grounds of appeal, for the reasons expressed by Smith AP, I agree that the appeal should be upheld. I agree that the decision of the learned Commissioner at first instance should be suspended, and the matter be remitted to the Commission for further hearing and determination.
     

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