CITATION : BURSWOOD RESORT (MANAGEMENT) LTD -v- AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS’ UNION, WESTERN AUSTRALIAN BRANCH [2003] WASCA 102 CORAM : SCOTT J (DEPUTY PRESIDING JUDGE) HASLUCK J MCLURE J HEARD : 1 APRIL 2003 DELIVERED : 13 MAY 2003 FILE NO/S. : IAC 1 of 2003 BETWEEN : BURSWOOD RESORT (MANAGEMENT) LTD Appellant AND AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS’ UNION, WESTERN AUSTRALIAN BRANCH Respondent Catchwords— Industrial law - Western Australia - Industrial Relations Act 1979 (WA), s 41(6) - Clause 45 of Burswood International Resort Casino Employees’ Industrial Agreement 2001AG 169 of 2001 - Whether cl 45 is repugnant or inconsistent with s 41(6) - Whether 2001 Agreement continued in force after nominal expiry date - Whether Commission had jurisdiction to make award - Section 41(6) extends agreement to avoid a gap between expiry of agreement and replacement Legislation— Industrial Relations Act 1979 (WA), s 27(1)(a)(ii), s 41, s 41(6), s 41(7), s 41(8), s 41(9), s 42, s 83, s 90(1)(b), s 114 Labour Relations Reform Act 2002 (WA) Result— Application dismissed Category: B Representation— Counsel— Appellant : Mr R L Le Miere QC Respondent : Mr D H Schapper & Mr D J Kelly Solicitors— Appellant : Clayton Utz Respondent : Derek Schapper 1372 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. Case(s) referred to in judgment(s)— A v Hayden (1984) 156 CLR 532 ALHMWU v Burswood (No 1) [2002] WAIRC 05952; 82 WAIG 2112 Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch v Burswood Resort (Management) Ltd [2002] WAIRC 05952 Bond v Larobi Pty Ltd (1992) 6 WAR 489 Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch [2002] WASCA 354 Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch [2002] WASCA 355 Electrical Trades Union of Australia, New South Wales Branch v Nationwide News (1995) 92 IR 365 Felton v Mulligan (1971) 124 CLR 367 Gerraty v McGavin (1914) 18 CLR 152 Lieberman v Morris (1944) 69 CLR 69 Case(s) also cited— Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch v Burswood Resort (Management) Ltd [2002] WAIRC 06347; 82 WAIG 4994 Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch and the Hospital Salaried Officers Association of Western Australia (Union of Workers) v Activ Foundation (Inc) [2000] WAIRC 00472; 80 WAIG 4994 Griffin Coal Mining Co Ltd v The Coal Miners Industrial Union of Workers of Western Australia [2000] WASC 107 _________ 1 SCOTT J (DEPUTY PRESIDING JUDGE): This is an appeal from the Commission in Court Session of the Western Australian Industrial Relations Commission delivered on 17 December 2002. By that decision the Commission in Court Session made the Burswood International Resort Casino Employees Award 2002 (“the award”) in substitution for the Burswood International Resort Casino Employees Industrial Agreement 2001 (“the 2001 Agreement”) and the Burswood Island Resort Employees Award of 1985. 2 The legal proceedings between the appellant and respondent have a long and complex history. This is the third occasion upon which disputes between the parties have been considered by the Industrial Appeal Court. 3 The first of those appeals was the subject of decision in Burswood Catering and Entertainment Pty Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch [2002] WASCA 354. That decision involved a different appellant to the present. The appellant in that case was part of the Burswood Group. That case involved a challenge to the issue of an award to cover the employees of the appellant. The Industrial Appeal Court held that the Commission in Court Session was not in error in making that award. It is not necessary to revisit that matter in any detail for the purposes of this appeal. 4 The next appeal, which involved this appellant, concerned a challenge to the jurisdiction of the Industrial Relations Commission to hear an application for an award to replace the 2001 Agreement. The application for that award was lodged with the Industrial Relations Commission on 10 July 2002, 10 days after the expiry of the 2001 Agreement. That agreement provided for its expiry on 30 June 2002. That appeal was heard by Scott J (Deputy Presiding Judge), Hasluck and Heenan JJ and the Court decided that the Commission had jurisdiction to hear the application for the award. That decision in Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch [2002] WASCA 355 was delivered on 18 December 2002, the day after the award presently under consideration was made by the Commission in Court Session. I would comment in passing that it was surprising that the Commission in Court Session made the award at a time when a decision in relation to its jurisdiction to do so was being considered by the Industrial Appeal Court. That having been said, however, as the Industrial Appeal Court unanimously determined that the Commission had jurisdiction to consider the application for the new award, no injustice has been caused. As will become apparent in the course of these reasons, the manner in which the 2001 agreement was replaced by the award is a matter of controversy. 5 The notice of appeal to this Court appeals against the whole of the decision of the Commission in Court Session below on the ground that— The Commission in Court Session erred in law by wrongly construing or interpreting s 41(6) of the Industrial Relations Act 1979 (“the Act”) and cl 45 of the Burswood International Resort Casino Employees Industrial Agreement 2001 AG 169 of 2001 (“the 2001 Agreement”) by— (a) holding that cl 45 of the 2001 agreement is, in part, repugnant to and inconsistent with s 41(6) of the Act; and (b) concluding that cl 45 of the 2001 Agreement does not preclude a party from seeking a new award whilst the 2001 Agreement continues in force. 6 The appellant in this appeal seeks to have the decision of the Commission in Court Session quashed and the application for the award dismissed. 7 The appeal to this Court lies under s 90 of the Industrial Relations Act 1979 (“the Industrial Relations Act”) which provides— “90. Appeal to Court from Commission (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 on an industrial matter; (b) 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. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1373 (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. (3) On the hearing of the appeal the Court may confirm, reverse, vary, amend, rescind, set aside, or quash the decision the subject of appeal and may remit the matter to the President, the Full Bench, or the Commission in Court Session, as the case requires, for further hearing and determination according to law. (3a) If any ground of the appeal is made out but the Court is satisfied that no injustice has been suffered by the appellant or a person who is a member of or represented by the appellant, the Court shall confirm the decision the subject of appeal unless it considers that there is good reason not to do so. (4) The Court may at any time, if it considers that to do so will not prejudice any party to an appeal under this section— (a) correct clerical mistakes in its judgments or orders, or errors arising in its judgments or orders from accidental slips or omissions; and (b) generally correct any minor irregularities in its proceedings.” 8 Counsel for the appellant contends that this Court has jurisdiction to deal with the matter because it is said that the decision of the Commission in Court Session was erroneous in law in that there had been an error in the construction or interpretation of s 41(6) of the Industrial Relations Act and also cl 45 of the 2001 Agreement. 9 It should also be mentioned as part of the history of this application that on 8 March 2002 the respondent applied for a new award during the term of the 2001 Agreement. A preliminary point was taken in the Industrial Relations Commission that the Commission had no jurisdiction to determine the claim because of the operation of cl 45 of the 2001 Agreement which is set out later in these reasons. The Commission in Court Session determined that whilst it had jurisdiction to hear and determine the claim, it should not do so in the public interest whilst the 2001 Agreement was still in its term. It is not necessary to refer in any greater detail to that decision of the Commission in Court Session: ALHMWU v Burswood (No 1) [2002] WAIRC 05952; 82 WAIG 2112. 10 As I have already indicated, shortly after the 2001 Agreement expired the respondent to this appeal lodged a second application for a new award which resulted in the decision of the Commission in Court Session which is the subject of the present appeal. 11 As can be seen from these reasons already, central to the appeal is the construction of s 41 of the Industrial Relations Act and, in particular, s 41(5) s 41(6), s 41(7), s 41(8) and s 41(9). Those sections provide— “(5) An industrial agreement shall operate— (a) in the area specified therein; and (b) for the term specified therein. (6) Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first-mentioned agreement has been made. (7) At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement. (8) When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (‘the first agreement’), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement. (9) To the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise.” 12 The other matter central to the appeal is cl 45 of the 2001 Agreement which provides— “45. NO EXTRA CLAIMS The company and the union agree that there will be no extra claims for the term of this agreement and whilst it continues in force.” 13 Counsel for the appellant contends that by reason of the provisions of s 41(6) of the Industrial Relations Act the 2001 Agreement continued in force notwithstanding its expiry so that cl 45 of the 2001 Agreement prevented any extra claims from being made until such time as a party or parties retired from it. It was submitted that, as no party had retired from the 2001 Agreement, s 41(6) continued the agreement in force. It follows, so counsel said, that the Commission had no jurisdiction to make the award the subject of the present appeal. 14 In support of that contention, senior counsel for the appellant referred to the majority judgment of Hasluck and Heenan JJ in Burswood Resort (Management) Ltd v ALHMWU (supra) and in particular the judgment of Hasluck J (with whom Heenan J agreed) at [58] and [59]— “58 I see considerable force in the submissions made by counsel for the appellant. In my view, the effect of s 41(6) of the Act is to keep in force the 2001 Agreement until such time as a party to it retires from the agreement in the manner provided for by s 41(7) of the Act. It follows from earlier discussion that such a construction appears to be consistent with the scheme of the legislation. 59 When an award or an industrial agreement comes into effect both parties should be able to assume that the relevant arrangements will continue to apply until new arrangements are made in accordance with the prescribed procedure. In many cases, a new agreement will have been negotiated before the former agreement expires. In such a case, upon retirement from the existing agreement, the new agreement will come into effect immediately. If a new agreement cannot be negotiated, as in the present case, the relationship between the parties will be controlled by an underlying award. This will protect the position 1374 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. of the employee if it becomes necessary to retire from the existing agreement in the manner contemplated by s 41(7) of the Act in order to apply for a new award.” 15 The first thing that should be said about that passage is that it was not necessary for the decision. As I have said, each of the Judges in that matter agreed that the Commission had jurisdiction to deal with the application for the award. 16 One question that falls for consideration in this appeal is whether there is any inconsistency between cl 45 of the 2001 Agreement and s 41(6) of the Industrial Relations Act. In my view, there is no inconsistency. As I said in Burswood Resort (Management) Ltd v ALHMWU (supra)— “In my opinion, s 41(6) of the Industrial Relations Act serves two purposes, namely— (1) that it extends the operation of an industrial agreement beyond its expiry date in circumstances where the parties have not retired therefrom until a new agreement or award has been made. In other words, the agreement does not expire on its termination, but continues until it is replaced by any one of the methods contemplated by the section. (2) To act as a transitional provision governing the parties’ relationship between the expiration of the agreement and the time when a new agreement or award is made. The section acts as a transitional provision which is reflected in s 41(8) set out earlier in these reasons. The effect of that subsection is, that once either the new industrial agreement, new award, or new enterprise order replaces the existing industrial agreement, then the earlier agreement is taken to be cancelled, except to the extent that the new agreement, award or order preserves any of the provisions of the earlier agreement.” 17 The way in which the argument for the appellant was advanced, there is no reason for a fixed term in the agreement. The submission is that the agreement runs on indefinitely until one of the parties retires therefrom pursuant to s 41(6) of the Industrial Relations Act. In my view, such a construction is untenable. It should be borne in mind that the 2001 Agreement provided for such things as rates of remuneration and hours and conditions of work. In the context of Industrial Relations legislation it is difficult to accept that the parties would tie themselves to an agreement on an indefinite basis. As I said in the judgment to which I have just referred, it is consistent with the underlying philosophy of the Act that the parties enter into an agreement only for a fixed term. The reason why s 41(6) extends the term is to avoid any gap between the expiry of the agreement and its replacement either with a new agreement or an award. In this case the respondent pursued an award to replace the 2001 Agreement. Upon the coming into operation of that award pursuant to s 41(8) of the Industrial Relations Act set out earlier in these reasons, the 2001 Agreement was thereby cancelled. 18 Although it is not necessary to reach any concluded view as to the correct construction of cl 45 of the 2001 Agreement, it may be possible to construe that clause by reference to the underlying intention of the parties. 19 One possibility is that the clause may be construed to mean that during the term of the agreement and any statutory extension thereof, the parties agree to be bound by, and abide by, the provisions of the agreement. In that sense the clause would mean that the parties would be unable to seek any variation of, or additions to, the agreement whilst it is in force either during its term or during any statutory extension. 20 As I have already said, it is not necessary to reach any concluded view on the proper construction of the clause in these proceedings. If the view which I have just expressed is the correct construction of the clause, then it would preclude any of the parties from seeking a variation of or addition to the agreement during its term. It would not, however, prevent negotiations for a new award or agreement during the term of the agreement. 21 In expressing these views as to the possible construction of cl 45, I accept that it involves straining the language of the clause. However, bearing in mind that counsel have said that the agreement was drawn up by lay parties, it is at least possible that the clause, although inelegantly worded, could ultimately be determined to have that meaning. 22 The effect of construing the Act and the agreement in this way is that the terms and conditions of the employees governed by the 2001 Agreement would continue to be governed either by the 2001 Agreement or the new award. Those employees would not be forced to return to any underlying award even if such an award continued to exist. 23 It is also to be noted that under s 41(5) set out earlier in these reasons the two essential matters required for every industrial agreement are that— 1. There is an area specified; and 2. There is a term specified. 24 In my opinion, it is clear from that provision that the legislation did not contemplate that there should be an agreement of indefinite term. It would be inconsistent with the underlying philosophy of the Industrial Relations Act that workers should be tied to agreements without recourse to the Industrial Arbitration Commission for indefinite periods. For that reason, in my opinion, the legislature provided that an industrial agreement could only be for a finite term. As I have also said, to avoid any gap between the expiration of that term and the coming into operation of the new arrangement to replace the industrial agreement, s 41(6) operates so as to continue the agreement in force, notwithstanding its expiry, until such time as it is replaced by one of the methods referred to in that subsection. 25 Counsel for the appellant also contended that the word “claims” in cl 45 should be construed so as to mean a formal claim made in the Industrial Relations Commission. It was contended that negotiations between the appellant and respondent would not breach the clause because those negotiations would not constitute “claims” within the meaning of that clause. In support of that contention counsel for the appellant referred to Electrical Trades Union of Australia, New South Wales Branch v Nationwide News (1995) 92 IR 365 (“ETU”). That case involved an industrial agreement which provided for various wage increases throughout its life and ultimately with an expiry date of 1 July 1996. The no extra claims clause in that agreement provided— “During the period of this agreement from 1 January 1995 to 1 July 1996 it is agreed that neither party will pursue additional claims outside the terms of this agreement.” 26 It is to be noted that there is a distinction to be drawn between the clause in that case and the clause in this. In this case there is no reference to “pursuing” additional claims, although that distinction may be of little importance. 27 In the ETU case the New South Wales Industrial Relations Commission held— “The ETU argues that the no extra claims commitment contained in the various accord Mark VII agreements only restricts claims to subject matters which are provided for, in terms, in those agreements. It is argued that the issue of changed rosters of ETU members at Chullora is a local matter extraneous to the Accord agreements and is not prohibited by the commitment from being pursued. In support of its argument the ETU refers to a willingness of the employer to discuss with the unions, during the currency of the Accord agreements, various industrial matters and to implement agreements consequently reached. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1375 This argument cannot be accepted, if for no other reason than that the commitment is not directed towards stifling discussion and agreement as to industrial matters, but rather to prohibiting the pressing of unauthorised claims against the will of the other party. In our view, perusal of the terms of the agreements discloses the clear intention of the parties that claims as to matters not specifically authorised by those agreements as being available for further negotiation are prohibited from being pressed against an unwilling party either in the context of industrial action or in arbitral proceedings.” 28 In that case the Industrial Relations Commission held that the agreements prevented the pursuit of the claims that were then being sought during the currency of the agreement. In my view, that decision is of no help to the appellants. The parties in this case selected a term for the 2001 Agreement. That term, as I have already indicated, expired on 30 June 2002. I accept that it was not possible for the respondent to have made further claims against the appellant in relation to matters covered by the agreement until its expiry. I express no view, because it is unnecessary to do so, as to whether claims for matters falling outside the agreement could be pursued during its term. 29 Importantly, in my opinion, the application for the present award was made by the respondent after the expiry of the term. 30 As McLure J said in the course of argument, the correct approach to this problem is to construe the Act first and then consider the agreement. I agree with that approach. 31 In this case, in my opinion, s 41(6) of the Industrial Relations Act is, as I said in the previous judgment in this matter, is designed to avoid a gap between the expiry of an agreement and the coming into existence of a new industrial agreement, award or order to replace it. If there was no such provision, then there would be a real possibility that employees could be paid lower rates of pay and enjoy different terms of employment during the period between the expiry of the agreement and the coming into operation of the replacement award, order or industrial agreement. That is a possibility which, in my view, this legislation was drafted to avoid. The mechanism by which that was achieved was to extend the operation of the industrial agreement until such time as it was replaced in one of the three methods contemplated by s 41(6) of the Act, that is, by— 1. The coming into operation of a new agreement; 2. The coming into operation of a new award; or 3. By retirement of a party from the agreement after its termination. 32 In my view, s 41(8) set out earlier in these reasons is consistent with that view. The effect of the coming into operation of the award in this case was to cancel the 2001 Agreement from the date of the operation of the award. That in turn meant that the employees governed by the new award would move from the agreement to the new award from the date of coming into operation of that award. 33 Whilst, in my view, there is nothing inconsistent between cl 45 and s 41(6), in case I be wrong in that view, in my opinion, cl 45 would have to be read down to the extent of any inconsistency: Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch v Burswood Resort (Management) Ltd [2002] WAIRC 05952, at [14]. 34 For these reasons I am of the opinion that the grounds of appeal have not been made out and that the Commission in Court Session was not in error in making the award the subject of the appeal. The appellant’s argument, if successful, would result in the award being quashed. If that was to happen, then the agreement would continue in force until such time as one of the parties to the agreement replaced it in one of the ways available under s 41(6), that is, by a new agreement or award. To negotiate such an agreement or award may take considerable time after the retirement from the agreement. In my opinion, the legislature could not be taken to have intended such an anomaly. 35 For these reasons I am of the view that the appeal should be dismissed. 36 HASLUCK J: I have had the advantage of reading in draft the reasons for judgment of the Deputy Presiding Judge. His Honour has set out the history of the proceedings and the terms of the relevant statutory provisions. It will therefore be sufficient for me to refer to the facts and matters underlying the present appeal in a summary form. 37 It is apparent from the narrative that the parties have been involved in two previous appeals, the first of which may now be disregarded. I accept that the observations I made (with which Heenan J agreed) in the second appeal, Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch [2002] WASCA 355 at par 58 and par 59 were obiter dicta, with the result that the issues raised in this, the third appeal are not in any sense foreclosed by the prior ruling. For ease of reference, I will call the case I have just cited, the “second Burswood appeal”. 38 The 1985 Burswood Award commenced on 24 February 1987. Subsequently, between 1993 and 2001, a number of industrial agreements were made between the parties. Clause 4 of the 2001 Burswood Agreement provided that the term of the agreement shall be from the date of registration of the agreement to 30 June 2002. By cl 45 of the agreement “the Company and the Union agree that there will be no extra claims for the term of this agreement and whilst it continues in force”. 39 It is common ground that negotiations between the parties prior to expiry of the term prescribed by cl 4 were unsuccessful. The areas of disagreement included wage rates and journey cover. Accordingly, on 10 July 2002, shortly after the term of the 2001 Burswood Agreement expired, the Union applied to the Commission in Court Session for a new award. The appellant company contended that the application did not raise an industrial matter and hence the Commission had no jurisdiction. However, on 28 August 2002 the Commission ruled that it had jurisdiction. On 17 December 2002 the Commission determined that it would make a new award largely in terms sought by the respondent Union. A day later the Industrial Appeal Court handed down a ruling in the second Burswood appeal in which it affirmed that the Commission had jurisdiction in respect of the application for a new award. 40 At the substantive hearing concerning the proposed new award the appellant had contended that the Union’s claim should be dismissed pursuant to s 27(1)(a)(ii) of the Industrial Relations Act 1979 on the ground that making the new award was not desirable in the public interest because the application for a new award infringed cl 45 of the 2001 Burswood Agreement which was kept in force by s 41(6) of the Industrial Relations Act. 41 The Commission in Court Session ruled against the appellant. It determined that it would not exercise its discretion to dismiss the Union’s application on two related grounds; first, cl 45 does not prevent the Union from making claims after the term of the 2001 Burswood Agreement had expired because the words “and whilst it continues in force” in cl 45 were repugnant to and inconsistent with s 41(6) of the Act and were invalid; second, a no extra claims clause should not be interpreted to bar proceedings for a new award when the terms of such a clause are inconsistent with s 42 of the Act. 42 In this, the third Burswood appeal, the appellant renews its contention that cl 45 of the 2001 Burswood Agreement precludes the Union from applying for a new award. The appellant contends that the Commission in Court Session erred in law by wrongly interpreting the statutory provisions bearing upon the application of cl 45 to the circumstances of the present case. 43 In the course of my judgment in the second Burswood appeal, I observed that the Industrial Relations Act makes provision for the creation and enforcement of awards and industrial agreements affecting employers and employees with a view to removing 1376 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. or minimising disputes between the interested parties. The statutory provisions are designed to ensure that rights and duties are defined with certainty and not disputed unless and until the terms of the operative instrument and the relevant statutory procedures have been complied with. 44 In my view, cl 45 of the 2001 Burswood Agreement which precludes “extra claims for the term of this agreement and whilst it continues in force” is entirely consistent with the scheme of the legislation. Both parties should be able to assume that the arrangements made between them will continue to apply until new arrangements are made in accordance with the prescribed procedures. 45 These precepts are reflected in s 41 of the Industrial Relations Act which deals with industrial agreements. By s 41(5) an industrial agreement shall operate for the term specified therein. However, by s 41(6) provision is made for an agreement to continue in force in certain circumstances notwithstanding expiry of the term. This suggests that in circumstances where the agreement is working smoothly it is open to the parties to do nothing in which case the agreement will simply run on. The words “continue in force” strongly suggest that in a typical case all the provisions of the agreement will remain operative including a provision such as cl 45 whereby the parties agree that no extra claims shall be made. 46 I pause to say that, in my view, the term “claims” in this context refers to a formal claim for relief presented to a court or tribunal such as the Commission with jurisdiction to resolve any dispute underlying the claim: Electrical Trades Union of Australia, New South Wales Branch v Nationwide News (1995) 92 IR 365 (the “ETU case”). The term therefore covers an application to the Commission to arbitrate a new award. However, the clause does not preclude the parties from entering into negotiations with a view to resolving some difference of opinion or with a view to reaching agreement as to what arrangements are to be made by way of a new agreement or an award when the existing agreement comes to an end. A clause of this kind should generally be construed in a manner which is consistent with the scheme of the related legislation and, in this case, the relevant statutory provisions including s 41 and s 42 clearly contemplate that the parties will be at liberty to initiate bargaining for a new agreement towards the end or after the term of the current agreement subject to certain procedural constraints. 47 The terms of s 41(6) suggest also that if the parties are not prepared to let the agreement run on because they are in dispute then certain proactive or positive steps must be taken by one or both parties to signify that the existing arrangements are no longer satisfactory and are not to continue in force. The relevant procedure is designed to ensure, presumably, that the parties are not left in a state of doubt or ambiguity as to whether the existing agreement is to remain in force. 48 This view of the matter is inherent in the nature of an agreement based upon consensus, for it would be inimical to the spirit of such an agreement that it could be kept in place after expiry of the term contrary to the wishes of one party. It is inherent also in the structure of s 41 of the Act, for s 41(7) prescribes the positive step which is to be taken in order to bring the existing agreement to an end. In effect, it provides that at any time after, or not more than 30 days before, the expiry of an industrial agreement, any party may file a notice signifying his intention to retire from the agreement at the expiration of 30 days and “such party shall on the expiration of that period cease to be a party to the agreement”. In other words, within a framework of statutory provisions which allow for the agreement to run on after the term has expired, s 41(7) requires that a specific step be taken, namely, the giving of notice of intention to retire, in order to bring the agreement to an end. 49 I have already observed that there is nothing in these and related provisions to prevent one or both parties commencing negotiations for a new agreement prior to the expiry of the prescribed term of the existing agreement. If the parties have negotiated a new agreement shortly before the term expires, then, absent a no extra claims clause, the new agreement can take effect immediately after the current term expires. Section 41(6) envisages that where an existing agreement is kept in force after expiry of the term it will be brought to an end either by the making of a new agreement or by the giving of notice of intention to retire. Section 41(8) provides that when a new agreement is made the prior agreement is cancelled. On the other hand, if the negotiations have not been brought to a conclusion within the current term, s 41(6) will keep the existing agreement in force, without any hiatus, until the negotiations are completed. 50 Put shortly, the scheme of the legislation appears to be that in a case where consensus can be achieved, the former regime will be brought to a clear and decisive end by the making of the new agreement. To that extent, I agree with Scott J that s 41(6) can be regarded as a transitional provision which is designed to avert the unwanted consequence of there being a hiatus between one regime and another simply because negotiations were not completed prior to expiry of the term. I agree also with the view that there are essentially three ways in which an agreement will be brought to an end, being either the making of a new agreement (when consensus can be achieved) or the giving of notice of intention to retire (when consensus cannot be achieved) or the making of an award (provided the prior agreement did not contain a no extra claims clause which has been kept in force by s 41(6) of the Act). 51 This brings me to the situation in which consensus cannot be achieved. If, as the end of the term approaches, the parties are in dispute and there is obviously no prospect of any fresh agreement or award being negotiated it is quite clear from the statutory provisions that either party is at liberty to file notice of intention to retire and thus to ensure that the agreement does not continue in force after the term has expired in the manner allowed for by s 41(6) of the Act. In that event, the dispute will probably be brought before the Commission by one party or the other as an industrial matter. It is immediately obvious, on this scenario, that there may indeed be a period of hiatus between the existing agreement and the taking effect of new arrangements either as an award approved by the Commission in the course of resolving the industrial matter or as a new agreement arrived at after a fresh round of negotiations. 52 To my mind, it should not be thought surprising that a hiatus may occur between the ending of one set of arrangements and the commencement of new arrangements. An industrial agreement, like any agreement, depends upon consensus. If consensus cannot be achieved when the term expires then the parties are inevitably at risk that a period of hiatus will occur. 53 To a certain extent, the statutory provisions seek to ameliorate the possibility of hiatus. Thus, as I have noted, s 41(6) provides for the existing agreement to continue in force unless a positive step is taken to bring it to an end by way of notice of intention to retire. Further, in circumstances where one or both parties conclude as the end of the term approaches that no consensus can be achieved, s 41(7) allows for notice of intention to retire to be given 30 days prior to expiry of the term, so that the party principally at risk will have at least 30 days within which to take remedial action to safeguard its position. It will also often be the case that the practical consequences of any hiatus will be ameliorated by the presence of an underlying award. 54 Nonetheless, as an industrial agreement ultimately depends upon consensus there must inevitably be a risk of hiatus. If the legislature had been absolutely determined that no hiatus should (or could) occur then it would not have made provision in s 41(7) for a party to bring an existing agreement to an end by the giving of notice of intention to retire. 55 In my view, it follows from these observations that the need to avoid a hiatus should not be adopted as an overriding principle governing the way in which s 41 of the Act is to be interpreted. It is at this point, with respect, that I part company with the learned Deputy Presiding Judge. To my mind, the prospect that a hiatus could occur, which might, in turn, lead to applications for relief or legal proceedings, is likely to create an incentive for the parties to negotiate constructively with a view to bringing new arrangements into existence. I am not persuaded that the interpretation contended for by the appellant raises the 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1377 disconcerting spectre of the parties being committed to an agreement for an indefinite term because, after the prescribed term expires, it is always open to a disaffected party to bring the agreement to an end by giving notice of intention to retire. 56 These general observations are reinforced by a consideration of the various provisions comprising s 42 of the Industrial Relations Act. These provisions deal with the initiation of bargaining for industrial agreements. They presume that the rights and duties defined by an existing agreement will be observed until positive steps are taken to introduce new arrangements in accordance with a prescribed procedure. Thus, s 42(5) provides that if there is an applicable industrial agreement in force, bargaining must not be initiated for an industrial agreement in the manner contemplated by s 42(1) earlier than 90 days before the nominal expiry date of the existing agreement. 57 Again, cl 45 of the 2001 Burswood Agreement appears to be entirely compatible with the credo reflected in these provisions. In both cases, the objective is to ensure that the parties will not be caught up in an endless round of negotiations throughout the term of the agreement. The expectation is that once an agreement is made it will be complied with until the expiry of the term approaches. 58 Against the background of these general observations, let me now return to the circumstances of the present case. It will be useful at this stage to look at s 41(6) and (7) in detail. These provisions read as follows— “(6) Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first-mentioned agreement has been made. (7) At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement.” 59 It was common ground at the hearing of the present appeal that the term of the 2001 Burswood Agreement expired on 30 June 2002. Consensus could not be achieved, but neither party gave notice of intention to retire either shortly before or after the expiry of the term in the manner allowed for by s 41(7). This inevitably meant, in order to give proper effect to the relevant provisions, that the agreement continued in force, notwithstanding expiry of the term. 60 It follows from my general observations that even if notice of intention to retire had been given by one or other of the parties after expiry of the term, the hiatus that would then have occurred could not be regarded as an arbitrary outcome because it is specifically allowed for by the scheme of the legislation. On that scenario, in circumstances where consensus could not be achieved, it would have been open to the respondent Union to apply for relief by way of a new award, as it has in fact done. If the underlying award, namely the 1987 Award, was thought to be not sufficient to safeguard the position of the employees represented by the Union, then presumably orders for interim relief or expedition would be sought. I note in passing that it was always open to the respondent to have ameliorated the risk of any unwanted consequences arising from a hiatus by giving notice of intention to retire 30 days prior to expiry of the term in the manner expressly allowed for by s 41(7) of the Act. 61 However, as it turns out, no notice of intention to retire was given by either side with the result that, on any view of the matter, as a consequence of s 41(6), the existing agreement continued in force. 62 In the case of an agreement which did not contain a clause such as cl 45, it would have been open to the respondent Union, in circumstances of acute disputation, to commence proceedings for a new award without delay. The effect of s 41(6) is that in the absence of any notice of intention to retire the existing agreements continue in force until it is replaced by a new agreement or an award. 63 In the present case, however, the presence of cl 45 gives rise to a complication. The conclusion that the 2001 Burswood Agreement continued in force after expiry of the term under and by virtue of s 41(6) of the Act leads inevitably to the further conclusion that cl 45 (precluding extra claims) continued in force also, and was in force as at 10 July 2002 when the respondent Union commenced proceedings for a new award. This, in turn, leads to a conclusion that the respondent Union was acting in breach of the agreement in applying to the Commission in court session for a new award. 64 The respondent sought to dispose of this bar to relief by contending that cl 45 upon its proper interpretation does not operate after the expiry of the term and, in any event, to the extent that it does operate beyond expiry of the term, it should be characterised as invalid on the grounds that it is inconsistent with and repugnant to the relevant statutory provisions, especially s 42. 65 It follows from my earlier general observations that, prima facie, a clause precluding extra claims while an agreement is in force is not inconsistent with or repugnant to the scheme of the legislation. It is inherent in the statutory provisions that the parties will comply with the terms of the agreement they have made until the agreement is brought to an end or replaced in accordance with a prescribed procedure which cannot be activated until the end of the term approaches. However, my provisional conclusion that the Commission erred in concluding that cl 45 is inconsistent with or repugnant to the statutory provisions has to be examined in more detail in the light of certain submissions made by counsel for the respondent Union as to the proper interpretation of cl 45. 66 Counsel for the respondent Union contended that on the proper construction of the no extra claims clause the word “and” is used cumulatively. That is, no extra claims can be made while the agreement is both in term and in force. If, as in the present case, the first of the two constituents of the clause is no longer present (in that the term has expired) then the clause precluding extra claims is no longer operative. On that view of the matter, it is not necessary to address any issue of inconsistency or repugnancy because cl 45 simply ceased to apply after 30 June 2002, and was therefore not a bar to the commencement of proceedings as at 10 July 2002. 67 I am not persuaded by this line of argument. To my mind, the word “and” in the sentence “that there will be no extra claims for the term of this agreement and whilst it continues in force” is a word connecting two discrete constituents of time. The term of the agreement defines a first limit of time, namely, the term of the agreement, and to that is added a further or outer boundary, namely, that the clause will operate while the agreement continues in force. Hence, as at 10 July 2002, when the respondent Union advanced a claim for a new award the prohibition reflected in the clause remained effective because the agreement as a whole was kept in force under and by virtue of s 41(6) of the Act. 68 The respondent Union went on to submit that upon a literal interpretation of cl 45 it would not be open to the parties to negotiate any future arrangements. On this reading, the term “claim” is said to be wide enough to embrace demands or discussion points of any kind in the context of negotiations for a new agreement as the end of the term approaches. Viewed in this light, cl 45 was said to be inconsistent with and repugnant to the scheme of the statutory provisions (as held by the Commission in court session) in that the statutory provisions clearly contemplate that the parties will be at liberty, subject to certain constraints, to initiate bargaining for industrial agreements. 1378 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 69 The short answer to this contention, as I indicated in earlier discussion, is that the term “claims” in this context is not concerned with the stifling of discussion or negotiations. It should be construed harmoniously with the related statutory provisions. As the Court indicated in the ETU case (supra), the cl 45 prohibition is of a more limited kind than that contended for by the respondent in the present case. Clause 45 restricts only the pressing of unauthorised claims against the will of the other party with a view to obtaining relief in legal proceedings. Thus, if a formal claim for relief is presented to the Commission (such as the respondent Union’s claim for a new award) whilst the no extra claims provision remains in force, the appellant is entitled to rely upon cl 45 as a basis upon which relief should be refused. 70 When I draw these various observations together I find no reason to depart from the views I expressed in the second Burswood appeal. I acknowledged in earlier discussion that these views were not necessary for the resolution of that appeal. Nonetheless, they are consistent with the conclusion I have arrived at in the circumstances of the present case in which consensus could not be achieved and the agreement contained a no extra claims clause. I refer in particular to the following observations at par 58 and par 59 of my reasons for decision in the second Burswood appeal— “58. I see considerable force in the submissions made by counsel for the appellant. In my view, the effect of s 41(6) of the Act is to keep in force the 2001 Agreement until such time as a party to it retires from the agreement in the manner provided for by s 41(7) of the Act. It follows from earlier discussion that such a construction appears to be consistent with the scheme of the legislation. 59. When an award or an industrial agreement comes into effect both parties should be able to assume that the relevant arrangements will continue to apply until new arrangements are made in accordance with the prescribed procedure. In many cases, a new agreement will have been negotiated before the former agreement expires. In such a case, upon retirement from the existing agreement, the new agreement will come into effect immediately. If a new agreement cannot be negotiated, as in the present case, the relationship between the parties will be controlled by an underlying award. This will protect the position of the employee if it becomes necessary to retire from the existing agreement in the manner contemplated by s 41(7) of the Act in order to apply for a new award.” 71 It follows from these and my earlier observations that, in my view, in the absence of any notice of intention to retire on either side in the manner allowed for by s 41(7) or the making of any new agreement, the 2001 Burswood Agreement continued in force after expiry of the term on 30 June 2002. This meant that cl 45 continued in force and was in force when the respondent Union presented and pursued a claim for a new award. Upon its proper interpretation, cl 45 precluded the bringing of a formal claim for relief whilst the agreement continued in force, notwithstanding expiry of the term. For the reasons I have given, a no extra claims clause of this kind cannot be regarded as inconsistent with or repugnant to the scheme of the legislation in the circumstances of the present case. 72 Thus, in my view, the Commission in Court Session erred in holding that cl 45 was invalid. Further, it erred in failing to take account of and give proper weight to the fact that the respondent Union as the applicant for a new award was apparently acting in a manner that infringed cl 45 of the existing agreement, being an agreement that was kept in force in the circumstances of the present case by the combined effect of s 41(6) and (7) of the Act. For present purposes, there is no need for me to go further and to make a determination as to how the Commission should have proceeded if it had taken proper account of and given weight to cl 45. 73 I consider that the appeal should be allowed and that orders should be made providing for the matter to be referred back to the Commission to resolve the application for a new award having regard to the reasons of the Industrial Appeal Court in this appeal. I am conscious that, by s 90(3a) of the Act, if any ground of appeal is made out but the Court is satisfied that no injustice has been suffered by the appellant, the Court shall confirm the decision the subject of the appeal unless it considers that there is good reason not to do so. However, in the circumstances of the present case, I consider that the appellant has succeeded on appeal in respect of a significant issue and this constitutes a good reason why the decision below should not be confirmed. MCLURE J: Introduction 74 This is an appeal under s 90(1)(b) of the Industrial Relations Act 1979 (WA) (“Act”) from the decision of the Commission in Court Session to make a new award entitled the Burswood International Resort Casino Employees Award 2002 (“the 2002 Award”). The 2002 Award was made, on the application of the respondent, in substitution for the Burswood International Resort Casino Employees Industrial Agreement 2001 (“the 2001 Agreement”). 75 The 2001 Agreement was registered and its term expired on 30 June 2002 (the nominal expiry date). Clause 45 of the 2001 Agreement provides— “The Company and the Union agree that there will be no extra claims for the term of this agreement and whilst it continues in force.” 76 The Commission in Court Session rejected the appellant’s submission that the claim before the Commission should be dismissed under s 27(1)(a)(ii) of the Act on the ground that making a new award was not desirable in the public interest because the application was in breach of cl 45 of the 2001 Agreement. 77 The Commission determined that it would not exercise its discretion to dismiss the application for a new award on the grounds that— (a) clause 45 did not prevent the union from making claims after the term of the 2001 Agreement had expired because the words “and whilst it continues in force” are repugnant to and inconsistent with s 41(6) of the Act and are invalid; and (b) a no extra claims clause should not be interpreted to bar proceedings for a new award when its terms are inconsistent with s 42(1), (5) – (8) of the Act. 78 The appellant appeals to this Court against the whole of the decision of the Commission on the ground that— The Commission in Court Session erred in law by wrongly construing or interpreting s 41(6) of the Act and cl 45 of the 2001 Agreement by— (a) holding that cl 45 of the 2001 Agreement is, in part, repugnant to and inconsistent with s 41(6) of the Act; and (b) concluding that cl 45 of the 2001 Agreement does not preclude a party from seeking a new award whilst the 2001 Agreement continues in force. 79 The appellant seeks to have the decision of the Commission quashed and the application for the award dismissed. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1379 80 The resolution of this appeal depends upon the proper construction of the provisions of the Act concerning industrial agreements and of cl 45 of the 2001 Agreement. History of Applications 81 Following unsuccessful negotiations between the appellant and the respondent, the respondent filed an application for a new award on 8 March 2002, more than three months before the expiration of the term of the 2001 Agreement (first award application). It was proposed that the term of the new award commence on and from the first pay period after 1 July 2002, that is, after the nominal expiry date of the 2001 Agreement. 82 The Commission determined that it had jurisdiction to hear the application but dismissed it on the ground that in bringing the claim for an award and seeking arbitration, the union was in breach of cl 45 of the 2001 Agreement. The Commission construed cl 45 as prohibiting an application for any award before the expiry of the term of the 2001 Agreement but not after it had expired. 83 On 10 July 2002, shortly after the expiry of the term of the 2001 Agreement, the respondent filed a second application for a new award. The appellant’s submissions on jurisdiction were heard by the Commission as a preliminary matter. The Commission ruled that it had jurisdiction. The appellant appealed that ruling to this Court which dismissed the appeal: Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch [2002] WASCA 355. It is accepted that the observations made by Hasluck J in that appeal at par 58 and 59 (with which Heenan J agreed) were obiter dicta and thus not binding on this Court. Scheme of the Act 84 The 2001 Agreement was executed on 16 August 2001 and registered by the Commission on 24 August 2001. Shortly after the respondent made its second (and successful) application for a new award, the Act was amended by the Labour Relations Reform Act 2002 (WA) (“Reform Act”). The Reform Act amended s 41 (by, inter alia, the addition of subsections (8) and (9)) and inserted s 41A (which prohibits registration of an agreement for a term longer than three years) and s 42 (referred to by the Commission in its reasons). These amendments came into effect on 1 August 2002. 85 Under the Act, an industrial agreement shall operate for the term specified therein: s 41(5). Subsections (6), (7) and (8) of s 41 provide— “(6) Notwithstanding the expiry of the term of an industrial agreement, it shall, subject to this Act, continue in force in respect of all parties thereto, except those who retire therefrom, until a new agreement or an award in substitution for the first-mentioned agreement has been made. (7) At any time after, or not more than 30 days before, the expiry of an industrial agreement any party thereto may file in the office of the Registrar a notice in the prescribed form signifying his intention to retire therefrom at the expiration of 30 days from the date of such filing, and such party shall on the expiration of that period cease to be a party to the agreement. (8) When a new industrial agreement is made and registered, or an award or enterprise order is made, in substitution for an industrial agreement (‘the first agreement’), the first agreement is taken to be cancelled, except to the extent that the new industrial agreement, award or order saves the provisions of the first agreement.” 86 Section 42 deals with the initiation of bargaining for an industrial agreement. Bargaining for an industrial agreement may be initiated by an organisation or association of employees or an employer or an organisation or association of employers giving an intended party to the agreement a written notice containing specified matters: s 42(1). However, if there is an applicable industrial agreement in force, bargaining must not be initiated earlier than 90 days before the nominal expiry date (being the expiry date specified in the agreement): s 42(5). 87 Section 41(6) of the Act provides for the statutory extension of the term of an industrial agreement and three ways to bring the statutory extension to an end. Firstly, by the parties entering into a new agreement. Secondly, by the Commission making an award in substitution for the agreement. Thirdly, a party can retire from the agreement which then ceases to apply to that party. 88 Further, the purpose and effect of subsections (6), (7) and (8) of s 41 of the Act is to avoid any interregnum after the nominal expiry date of an agreement. That is achieved by— (a) the statutory continuation in force of the expired agreement until such time as a new industrial agreement is registered or an award (or enterprise order) is made in substitution for the expired agreement; (b) alternatively, requiring any party who wishes to retire from the agreement after the nominal expiry date to give 30 days notice of an intention to retire. The retirement only takes effect at the end of the notice period, thereby giving the other parties to the statutorily extended agreement an opportunity to take steps to cover the gap that would or may arise as a result of the retirement. 89 It is clear from the scheme of the Act that the legislative intention is to permit fixed term agreements and to avoid a vacuum or alternatively an unacceptable fallback position, such as the reactivation of an outdated award in any transitional period, pending replacement of the agreement after its nominal expiry date. 90 Although s 41(6) in effect allows the agreement to continue to regulate the industrial relationship beyond the agreed term without limitation, that outcome can only be achieved with the consent and co-operation of the parties and does not alter the characterisation of the statutory purpose. 91 Further, before the Reform Act amendment, the Act did not prevent claims for a new agreement or award being made before the nominal expiry date of an agreement. After s 42 of the Act was inserted by the Reform Act, bargaining for a new agreement cannot be initiated earlier than 90 days before the nominal expiry date. The 2001 Agreement 92 I turn now to the proper construction of cl 45 of the 2001 Agreement, starting with the word “claims”. The broader its scope the greater the apparent inconsistencies with the purpose and effect of the Act. The respondent’s case is that it includes all claims whether made in the course of negotiations between the parties or by way of formal application to the Commission. The appellant’s position is that claims are confined to demands that are being pressed, whether by application to the Commission or by industrial action. It was conceded by the appellant that a notice under s 42(1) of the Act would be a prohibited claim under cl 45 of the 2001 Agreement. 93 However, it is unnecessary to determine the scope of the term. It was common cause that the respondent’s application for a new award under the Act was a claim for the purposes of cl 45 of the 2001 Agreement. The appellant says that on its proper construction, cl 45 narrows the statutory avenues for bringing the statutory extension of the 2001 Agreement to an end from 1380 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. three to two. That is, the respondent had by agreement confined itself to two theoretical options, being either to retire from the 2001 Agreement or enter into a new agreement with the appellant. As negotiations for a new agreement had failed, the respondent was left with only one option if it wished to apply for a new award and that was to retire from the 2001 Agreement. 94 Thus, a consequence of the appellant’s construction of cl 45 is that the 2001 Agreement cannot be terminated by a substitute award. A further consequence of the appellant’s construction of cl 45 is that the respondent could not make any application to the Commission for a new award until after its retirement from the 2001 Agreement took effect. These outcomes are inconsistent with the policy, purpose and effect of the Act. 95 My preliminary view was, and my considered view remains that on its proper construction cl 45 does not prohibit a claim for the substitution of the 2001 Agreement by a new agreement or an award to take effect after the nominal expiry date of the 2001 Agreement and that is so whether the claim is made before or after the nominal expiry date of the 2001 Agreement. 96 The reference in cl 45 to “extra” claims connotes a claim for entitlements that are in addition to that provided for by, and during the currency of, the 2001 Agreement. Thus, cl 45 only prohibits claims for extra (that is, additional) entitlements beyond those provided for in the 2001 Agreement which “extras” are intended to be operative whilst that agreement remains in force, either because the term has not expired or because the term has been statutorily extended. That construction gives effect to the language of the clause, is consistent with commonsense and is in harmony with the purpose and effect of the Act. Clause 45 is not intended to prohibit claims for a new agreement or new award to replace the 2001 Agreement after its nominal expiry date, an outcome which is expressly contemplated in s 41(6) of the Act. Whether cl 45 Void 97 However, as the narrow construction of cl 45 is inconsistent with what the Commission held in the first award application and was not advanced by any party to this appeal, I will consider the matter on the basis that cl 45 prohibits the respondent from making an application for a substitute award before and after the nominal expiry date of the 2001 Agreement. 98 It is made clear in s 41(6) and (8) of the Act that the Commission has the power to make a new award in substitution of and which terminates the 2001 Agreement. It is also the case that the Commission will not make such a substitute award of its own motion but only on the application of a relevant party. It follows that the respondent has a statutory right under the Act to make an application for an award in substitution of the 2001 Agreement at any time before the agreement ceases to be in force. The central issue is whether the respondent can lawfully fetter that right by agreement and thus expose itself to a penalty for breach of the agreement under s 83 of the Act. That depends upon whether cl 45 or any aspect of it is illegal or otherwise void for public policy. A contract may be illegal if it is expressly or impliedly prohibited by statute. Further, a court may refuse to enforce a contract because it offends against a public policy: A v Hayden (1984) 156 CLR 532 at 571. 99 Ouster of jurisdiction is an example of a type of contract clause which can offend public policy and be void. One type of ouster clause still regarded as contrary to public policy is that which seeks to prevent the enforcement of a statutory right: Bond v Larobi Pty Ltd (1992) 6 WAR 489 at 497. 100 When a right is given by statute, the question of whether the person to whom the right is given may by contract forego it depends upon the interpretation of the legislation in question: Felton v Mulligan (1971) 124 CLR 367; Lieberman v Morris (1944) 69 CLR 69. 101 Section 114 of the Act would appear not to apply in this case. There being no express prohibition in the Act against contracting out of the relevant provisions, the matter must be determined by reference to the scope and policy of the Act: Lieberman v Morris (supra) at pp 78, 84, 86 and 88, 90. 102 In construing the Act it is proper to have regard to the legislation as it stands as at the date of enforcement of the contract not at its entry date: Gerraty v McGavin (1914) 18 CLR 152. In my view, the Act impliedly prohibits a party from contracting out of s 41 and s 42. The Act regulates industrial agreements and in doing so evinces an intention for the legislative scheme to prevail so that the parties to an agreement are not free to contract out of its provisions. In particular, the Act requires that industrial agreements be for a specific term. The consensual and mutually binding contractual relationship ceases at the nominal expiry date. Thereafter, the relationship between the parties and the options available to them are regulated by statute. The statute extends the agreement to facilitate a smooth transition to its replacement at any time from the nominal expiry date of the agreement. It is not intended that an industrial agreement be used as a vehicle for altering the statutory scheme for facilitating the replacement of an industrial agreement after its nominal expiry date. 103 Further, there is nothing in the language of s 41 of the Act as it stood when the 2001 Agreement was entered into or now to suggest that there is any appropriate statutory ground to distinguish between steps towards a substitute award taken before or after the nominal expiry date of the relevant agreement. Insofar as cl 45 prohibits the respondent from taking steps for a substitute award as contemplated in s 41 of the Act it is to that extent void. 104 For these reasons, I would dismiss the appeal. _________ 2003 WAIRC 08342 APPEAL AGAINST THE DECISION OF THE COMMISSION IN COURT SESSION IN WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT PARTIES BURSWOOD RESORT (MANAGEMENT) LTD, APPELLANT v. AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION, WESTERN AUSTRALIAN BRANCH, RESPONDENT CORAM SCOTT J (Deputy Presiding Judge) HASLUCK J MCCLURE J DATE OF ORDER FRIDAY, 16 MAY 2003 FILE NO/S. IAC 1 OF 2003 CITATION NO. 2003 WAIRC 08342 _________________________________________________________________________________________________________ 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1381 Result Appeal dismissed Representation Appellant Mr R L Le Miere QC Respondent Mr D H Schapper (of Counsel) _________________________________________________________________________________________________________ Order HAVING HEARD Mr R L Le Miere QC for the Appellant and Mr D H Schapper (of Counsel) on behalf of the Respondent, THE COURT HEREBY ORDERS THAT— The Appeal be dismissed. (Sgd.) JOHN SPURLING, [L.S.] Clerk of Court. FULL BENCH—Appeals against decision of Commission— 2003 WAIRC 08230 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES PETER JOHN CAFFREY, APPELLANT - and - CHUBB SECURITY AUSTRALIA PTY LTD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER A R BEECH DELIVERED THURSDAY, 1 MAY 2003 FILE NO/S. FBA 54 OF 2002 CITATION NO. 2003 WAIRC 08230 _________________________________________________________________________________________________________ Decision Appeal dismissed Appearances Appellant Mr P E Mullally, as agent Respondent Mr J H Brits (of Counsel), by leave _________________________________________________________________________________________________________ Reasons for Decision THE PRESIDENT— INTRODUCTION 1 This is an appeal by the above-named appellant, Peter John Caffrey (hereinafter “Mr Caffrey”), against the decision of the Commissioner at first instance, constituted by a single Commissioner, and contained in an order made on 9 December 2002 whereby a claim for compensation was dismissed. That is the only part of the decision appealed against. 2 The appeal is brought pursuant to s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”). 3 The appeal is on the following grounds, as amended by leave at the hearing of the appeal (see pages 5-7 of the appeal book (hereinafter referred to as “AB”)):- “1. The learned Commissioner erred in law when having found that— 1.1 The appellant was unfairly dismissed; 1.2 That re-instatement was impracticable; he was not entitled to the payment of compensation, and his claim for compensation was dismissed. PARTICULARS (a) Section 23A (ba) of the Industrial Relations Act empowered the learned Commissioner to order the respondent to pay compensation to the appellant for loss or injury caused by the dismissal. (b) A sound discretionary judgment by the learned Commission ought to have resulted in an order that the appellant be paid compensation for his period of unemployment subsequent to the dismissal. (c) The failure by the learned Commissioner to award any compensation to the appellant resulted in a failure by her to properly exercise the discretionary power contained in the said Section 23A(ba), and she therefore fell into error. 2. The learned Commissioner erred in law in her finding that the redundancy payment and the payment in lieu of notice made by the respondent to the appellant at dismissal offset any payments of compensation to which the appellant may be entitled. 1382 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. PARTICULARS (a) The appellant was at dismissal pursuant to the express or implied terms of his contract of employment paid a redundancy payment of 26 weeks salary for his 4960 days of service with the respondent and 5 weeks salary in lieu of notice. (b) Section 29 of the Industrial Relations Act empowered the appellant to refer his dismissal by the respondent on the 8th February 2002 to the Commission which he did on the 6th March 2002, and he thereupon invoked the jurisdiction of the Commission under Sections 23A, 26 and 29 of the said Act. (c) The application of the said Sections stated in paragraph (b) above, gives rise to a statutory regime of relief for the appellant against a dismissal which is harsh, oppressive or unfair (as this dismissal was). (d) The learned Commissioner fell into error in failing to assess the appellants loss from the harsh, oppressive and unfair dismissal, separately from the payments stated in paragraph (a) above as those payments did not arise from the nature or character of the dismissal, but by the terms of his contract, and would have been payable by the respondent even if the dismissal had been found to not offend Section 29 of the said Act. (e) In failing to therefore exercise her discretion properly in accordance with the statutory regime of relief to which the appellant was entitled, the learned Commissioner fell into error, and the appellant was thereby deprived of the proper relief under the said Act. 3. The learned Commissioner erred in law in her assessment of the compensation at the equivalent of 5 weeks wages. PARTICULARS (a) The learned Commission, although not ordering compensation found in effect that the appellant had suffered a loss equivalent of 5 weeks wages. (b) The learned Commissioner when she proceeded to assess the appellants loss failed to have regard to the evidence, which she accepted, that the appellant (save for one week’s work when he earnt $1,250) had been unemployed between the dismissal and the date of hearing, and it was the lost earning for that period which ought to have attracted an order under Section 23A. (c) The learned Commissioner failed to apply the general principles of law in assessing loss and therefore fell in error in reaching a discretionary judgment. ORDERS SOUGHT ON APPEAL 4. That there be a payment of compensation by the respondent to the appellant assessed for the loss that he suffered from the date of dismissal to the date of hearing.” BACKGROUND AND FINDINGS 4 An application was made by Mr Caffrey pursuant to s.29(1)(b)(i) of the Act, whereby he, an employee, alleged that he was unfairly dismissed by the above-named respondent employer, when his position was made redundant, and he was retrenched ((ie) dismissed) on 8 February 2002. 5 On 8 February 2002, he was advised by the respondent, by letter of that date, that his position was being terminated, effective 8 February 2002 for redundancy. Attached to this letter (exhibit A2, page 31 (AB)) was a statement of details of the payments to be made to him (exhibit A3) consisting of payments in lieu of notice and other entitlements. 6 In the letter, he was advised that “Chubb Training Services has sub contract training work in security available” for him. In the letter he was also advised that “Chubb is also very happy to finance any skills upgrade that you will require in this position”. 7 Exhibit A3 (page 32 (AB)) records that the total “Termination Payments” were $41,776.56. After the tax was deducted the net amount to be paid was, as recorded, $36,034.56. This consisted of the following:- (a) For annual leave with loading and before tax $9,281.09 (b) For long service leave before tax $8,947.39 (c) Payment in lieu of notice being an amount equal to five weeks salary $3,798.08 (d) “Separation” – 26 weeks salary - $19,750.00 8 These two figures combined, that is the latter two figures (see paragraphs 7(c) and (d) hereof), are described as “Redundancy Pay Total” in exhibit A3. 9 It was common ground that, at the time of termination, Mr Caffrey’s salary was $39,500.00 gross per annum. 10 On 1 November 2001, as the Commissioner at first instance found, he had been informed by the respondent’s state manager for training that he should look at the possibility of being transferred to another section. He undertook to look at alternative employment options, and it was Ms Meg O’Brien, the training manager’s evidence, that since she had made him, on 1 November 2001, aware that his employment was in jeopardy, and that he had, thereby, been given a degree of notice. 11 On 24 January 2002, as it was found, Ms O’Brien had another meeting with Mr Caffrey, and the possibility of his redeployment to the position of supervisor of security at Perth Airport was canvassed with him. The Commissioner at first instance found that this position was never seriously offered to him. However, the Commissioner also found that it was not unreasonable that he had refused the offer of sub-contract work in the respondent’s training division. Further, he refused an offer from the respondent of redeployment as a security guard, which was a lower paid and lower status position, and the Commissioner found it not unreasonable for him to refuse that position on that basis. The Commissioner also found that Mr Caffrey was “terminated” due to a “redundancy situation”, which Mr Caffrey had accepted was the case. 12 It was common ground, too, that, on termination, Mr Caffrey was paid the amounts set out in exhibit A3, a total of $36,034.56. 13 The Commissioner also found that, since the dismissal, the appellant had sought work and earned $1250.00 only for one week’s work. 14 The Commissioner’s finding that Mr Caffrey was unfairly dismissed, which finding is not challenged upon this appeal, was on the following basis:- a) He was given insufficient notice of his termination and this affected his ability to seek out alternative employment and redeployment options. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1383 b) If he had been given greater notice of his impending termination he may have had sufficient time to canvass alternative work options both within the respondent’s operations and externally. c) He was treated unfairly and was not given sufficient notice and not given time to attend job interviews and the requirements of Part 5 of the Minimum Conditions of Employment Act 1993 (hereinafter referred to as “the MCE Act”) were not complied with. Accordingly, the termination was unfair. 15 It was common ground that the appellant had been employed by the respondent between 11 July 1998 and 8 February 2002, firstly as a security guard, then as operations supervisor, and for some time before, and at the time of his termination, as a senior training instructor. Upon the termination of his employment, he was paid a “redundancy package” equivalent to 26 weeks salary in the sum of $19,750.00. 16 Also, upon the termination of his employment, he was paid an amount equal to five weeks salary in lieu of notice. At the time of termination, he was in receipt of an annual gross salary of $39,500.00 as senior instructor. 17 The Commissioner at first instance found that the appellant was unfairly dismissed because he was not given sufficient notice of his termination in order to seek alternative employment and because there had been a breach of Part 5 of the MCE Act. 18 The Commissioner determined that the appellant’s loss in this case was represented by a period of time which would constitute sufficient notice over and above what was given to him, to enable possible job interviews to take place and alternative positions to be canvassed, which was assessed at an amount equal to five weeks salary. 19 The Commissioner then went on to hold that, given that the appellant was paid a redundancy payment of 26 weeks pay and five weeks pay in lieu of notice, the latter sum amounted to five weeks pay as compensation to be offset against reasonable notice of five weeks, and thus no monies were due to be paid to the appellant because no loss had been suffered. 20 It should be added that there was no question that this was a genuine retrenchment for redundancy. However, as this Commission has found from time to time, where the circumstances warranted it, a dismissal constituted by a retrenchment for a genuine redundancy may be unfair for a number of reasons (see WA Access Pty Ltd v Vaughan (2001) 81 WAIG 373 (FB) as an example). The termination of contract, which is a retrenchment for redundancy (and thus a dismissal), has been upheld by this Commission in cases over quite some years, to be unfair where the process was unfair or where there are or were other elements of unfairness, notwithstanding that the redundancy is or was a genuine one (see WA Access Pty Ltd v Vaughan (FB) (op cit)). It would seem that this was not understood or made clear by agent or counsel in Garbett v Midland Brick Co Pty Ltd (2003) 83 WAIG 893 (IAC), on a fair reading of the reasons for decision. ISSUES AND CONCLUSIONS 21 The decision appealed against is a discretionary decision as that term is defined in Norbis v Norbis [1986] 161 CLR 513 (see also Coal and Allied Operations Pty Ltd v AIRC and Others [2000] 203 CLR 194). 22 It is trite to observe that the appellant must establish that the exercise of the discretion at first instance miscarried according to the principles laid down in House v The King [1936] 55 CLR 499 (see also Gromark Packaging v FMWU (1993) 73 WAIG 220 (IAC)), before the Full Bench has any warrant to interfere with the exercise of that discretion. 23 The complaint in the appeal was that the Commissioner at first instance, having found that the appellant was harshly, oppressively or unfairly dismissed, failed to find that there was a loss caused by that act of statutory tort. The duty cast upon the Commissioner by the statute where, as was the case here, the Commissioner has found that the reinstatement is impracticable, is clear. This matter was a relatively simple matter. 24 There have been clear authorities in the Commission for some years enunciating the principles required to be applied in making findings as to loss or injury and assessment of compensation in claims for unfair dismissal in this Commission (see Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8 (FB), Gilmore and Another v Cecil Bros and Others (1998) 78 WAIG 1099 at 1103 (IAC), Gilmore and Another v Cecil Bros and Others (1996) 76 WAIG 4434 (FB), and see also Swan Yacht Club (Inc) v Bramwell (1998) 78 WAIG 579 (FB), Manning v Huntingdale Veterinary Clinic (1998) 78 WAIG 1107 at 1108 (FB) and Capewell v Cadbury Schweppes Australia Ltd (1998) 78 WAIG 299 (FB)). 25 The principles laid down in these cases by the Full Bench were assisted in their development by the principles developed in unfair dismissal cases in the Australian Industrial Court (see the cases cited in the above-mentioned authorities, and, in particular, but not solely, May v Lilyvale Hotel Pty Ltd (1995) 68 IR 112 at 118 and Nicolson v Heaven and Earth Gallery Pty Ltd 126 ALR 233 per Wilcox CJ). 26 There are clear and simple steps required to be taken pursuant to s.23A of the Act when it comes to determining questions of loss, injury and compensation. I do not propose to reproduce here all of the principles referred to and the steps set out for dealing with these cases which are set out in detail in Bogunovich v Bayside Western Australia Pty Ltd (FB) (op cit) at pages 8- 10, for example. 27 However, I should observe somewhat tritely, I think, as follows. The Commissioner at first instance makes a determination as to whether the dismissal alleged to have occurred, if it were a dismissal, was harsh, oppressive or unfair. If it is determined to have been unfair, it matters not whether it was substantively unfair or procedurally unfair or both. Indeed, all the Commissioner is required to determine is whether, according to the well known principles laid down in Miles and Others t/a Undercliffe Nursing Home v FMWU (1985) 65 WAIG 385 (IAC) (“the Undercliffe Case”), the dismissal was an unfair dismissal. That requires a consideration of all of the circumstances of the dismissal (see RRIA v CMEWU (1989) 69 WAIG 1027 (FB) (“Parker’s Case”)). 28 The principles to be applied in determining whether the dismissal was unfair or not have been variously expressed but all amount to the same in reality. They are as follows:- a) “Has there been a fair go all round?” b) “Whether the legal right of the employer has been exercised so harshly or oppressively against the employer as to amount to an abuse of that right?” c) “Has there or has there not been oppression, injustice or unfair dealing on the part of the employer towards the employee?” (see per Brinsden J in the Undercliffe Case (op cit) at page 386). d) “The principal task of the Commission was to assess the industrial fairness of the decision taken by the employer, based upon the nature and quality of the conduct involved” (see per Kennedy J in the Undercliffe Case (op cit) at page 388). e) “The “test” to be applied by the Commission both at first instance and on appeal is the test of what is just and equitable upon the substantial merits of the particular case” (see per Olney J in the Undercliffe Case (op cit) at page 389). 1384 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 29 If the Commission decides that question in favour of the employee, the Commission then determines that the employee has established that he/she was unfairly dismissed. Having so determined, the Commission must then decide, if the employee is not to be reinstated, whether the appellant has established that he/she has incurred loss or suffered injury caused by that dismissal. What the loss is is not determined by the nature of the unfairness, and, for those purposes, substantive or procedural unfairness is irrelevant. To submit, as Mr Brits did, that the difference is at all relevant to determining whether there has been a loss, the extent of the loss, and the compensation to be ordered to be paid for that loss, is wrong and seeks to impose an artificial and irrelevant distinction. Put another way, it matters not at all why the dismissal was unfair if it is or was unfair. It is then, as I have said, necessary to determine whether there was a loss and assess the compensation payable for that loss. The only time that the question of whether a dismissal was substantive or procedural might arise as an evidentiary question or a question of proof is when the employee seeks to establish his/her loss. Thus, for example, if an employee’s dismissal was unfair only because of procedural unfairness, and it was clear, on the evidence, or the evidence did not exclude, on the balance of probabilities, the likelihood that the employee might have been fairly dismissed three months later, for example, in any event, then his loss would probably be limited to no more than three months salary, subject to matters of mitigation, etc. I do not understand Dellys v Elderslie Finance Corporation Ltd (2003) 82 WAIG 1193 (IAC) to be authority for any other proposition. (I would add that that case seems to have involved some inaccurate submissions as to the authorities relied on and principles developed by and applied in the Commission). 30 If it is determined that loss and/or injury has been established to have been incurred or suffered by the appellant employee, caused by the dismissal, then the quantum of compensation is assessed and ordered to be paid. 31 (There has been some confusion in the submissions to us about the process of finding the loss to be established and that of assessing compensation. One does not assess the loss. One assesses the compensation which is ordered to be paid for the loss which has been established, or the injury as the case may be). 32 Once the loss is determined, and determined independent of the statutory cap on compensation, the Commission determines the correct compensation for the loss. The loss established does not depend on whether the statutory cap has been exceeded in quantum of loss or not (see Bogunovich v Bayside Western Australia Pty Ltd (FB) (op cit) at pages 8-9 and the cases cited therein, as well as other cases cited (supra)). 33 Having determined the amount of compensation which should be ordered to be paid, but not before that, the Commission then reduces the amount of compensation to be ordered to be paid so that it does not exceed the statutory cap on compensation, if to do so is necessary. 34 There is another matter about which I wish to make some observations. Both at first instance and in submissions to the Full Bench there seems to be adopted an approach that one credits against the compensation to be ordered any amount already paid which might properly be credited to reduce it. It is, I think, expressed and certainly implicit and has been the approach of this Commission, that the amount of the loss found can only be that amount which has been established. That is, if an amount has been paid in relation to a head of loss, then that clearly reduces the amount of the loss which can be established as having been incurred. Alternatively, depending on the amount involved, it might mean that no loss can be established at all. If an amount has been paid, it has obviously not been lost. Compensation, it is trite to say, may only be ordered to be paid for the loss or injury caused by the dismissal and established to have been incurred or suffered (see Bogunovich v Bayside Western Australia Pty Ltd (FB) (op cit)). (It is necessary to mention this because it does not seem to have emerged clearly from the submissions of any agent or counsel made thereon in Dellys v Elderslie Finance Corporation Ltd (op cit)). 35 The question is firstly, what was the loss which it was open to find was established by the appellant, on the evidence, at first instance? The Commissioner at first instance found that appellant’s loss was a period of notice which would constitute sufficient notice over and above what was given to enable job interviews to take place and alternative “issues” such as redeployment, etc, to be canvassed. 36 That period was determined to be five weeks. The appellant was paid a redundancy or severance payment equal to 26 weeks salary, which was the agreed amount, and five weeks pay in lieu of notice in addition, as I have already observed. 37 The Commissioner at first instance found that the appellant suffered no loss and was therefore not entitled to an order for compensation because that was the sole extent of the established compensable loss. At least that is how I read paragraph 59 of the reasons for decision at first instance (see page 25 (AB)). I think that that is clear, notwithstanding that the reasons are somewhat brief. 38 The substance of the properly expressed grounds of appeal, as I apprehend them, was as follows:- a) There was a loss incurred which was greater than that found by the Commissioner at first instance to have been established. b) Accordingly, the decision to dismiss the claim for compensation was in error because the amount of the loss was not compensated for. c) There was no finding of loss. d) The compensation of an amount equal to five weeks wages for notice was inadequate. e) The true loss established which should have been compensated for was as follows:- i) From the date of the dismissal to the date of hearing, save for one week’s work when he earned $1250.00, the appellant had not worked, as a matter fact, and had therefore lost an amount equal to a little over 30 weeks salary for the period 8 February 2002 to 10 September 2002, less $1250.00. ii) That the amount of the redundancy payment and the payment in lieu of notice did not offset any payments to which the appellant was entitled. iii) That the payments actually made were due and payable under the contract, in any event, and should not have been taken into account in making a finding as to the loss established or by way of reduction of compensation. 39 The quantum of the redundancy payment is not challenged either as an inappropriate amount, or because it was inadequate and its inadequacy rendered the dismissal unfair. There was no such submission at first instance. 40 There was a submission to the Full Bench, however, that the appellant should have been given notice of the redundancy when it was decided that he would be retrenched, his position having been accounted as one which would be made redundant, and it was submitted that this occurred on 1 November 2001. Of course, he was not informed that day, although discussions did occur afterwards based on such a possibility occurring. 41 If he were given three months notice, so the submission went, that would have constituted a reasonable period of notice to enable compliance with the MCE Act. I do not understand that submission. I would note that the appellant was only required under the MCE Act to be paid up to eight hours for the purpose of being interviewed for further employment. Further, it was not established that the appellant required, given the other jobs offered him and the discussions about the situation, that more 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1385 than five weeks be given him. In my opinion, given his years of service, his age, his position and his commitment to the respondent, as well as his work record, he should have been given notice of no less than five weeks, given that he was paid an adequate redundancy or severance payment which was agreed and accepted as an amount equal to six months pay. 42 There are elements of duplication between a redundancy payment and payment in lieu of notice, even though the two are entirely different entitlements. However, I am not persuaded that his loss, occasioned by insufficient notice having been given, is more than five weeks. I say that, in particular, given the substantial amount of severance pay equal to six months wages which he received. Any claim for any more would be a clear duplication. 43 Next, it follows that if he was retrenched because his job become redundant, as in fact he was, it would be necessary for him to establish that it was more probable than not that he would not be unfairly retrenched in the near future. Of course, he did not seek to, and he could not establish that he might not have been, on the balance of probabilities, properly and fairly retrenched after notice within a period of five weeks to the date of his unfair termination, provided that he was paid the 26 weeks redundancy and severance pay and was given a minimum of five weeks notice. I am not persuaded otherwise. Therefore, his loss, since he received a fair redundancy payment and an amount equal to wages for reasonable notice, was not an amount equal to 30 weeks wages, and the Commissioner at first instance made no error in finding as she did. He suffered no loss because of the amount which he was paid, and no loss could or should be found to have been established. Alternatively, as it was expressed by Anderson J in Dellys v Elderslie Finance Corporation Ltd (op cit), at least as I understood what His Honour said, the payments made can be credited against the amount otherwise to be ordered for compensation, and, in this case, they cancel each other out. 44 There was no error established in the exercise of the discretion and no ground of appeal has been made out. I would, for those reasons, dismiss the appeal. CHIEF COMMISSIONER W S COLEMAN— 45 I have had the advantage of reading the draft reasons for decision of the Honourable President. I agree that the appeal should be dismissed. 46 The thrust of the appeal is that the Commissioner at first instance erred in dismissing the appellant’s claim for compensation after finding that the termination of employment was unfair. In this respect it is submitted that the Commission failed to properly assess the appellant’s loss arising from the harsh, oppressive and unfair dismissal and fell into error in taking into account entitlements paid by the respondent in the termination of employment arising from the appellant’s redundancy. 47 The Commission found that the appellant’s loss was equivalent to five weeks wages being the “period of time which would constitute sufficient notice over and above that which was given to enable possible job interviews to take place and alternative positions to be canvassed…”. This was offset against the payment of five weeks wages paid in lieu of notice when the redundancy became effective. 48 Once the threshold issue of unfairness of a dismissal has been determined the Commission is required to make a finding as to the loss and/or injury which the employee suffered by reason of the dismissal. The finding as to loss is a finding of a fact and sometimes a matter of fact and law. Amongst the range of issues to be addressed in making the finding it is of fundamental importance that there be a causal link between the loss and/or injury claimed and the termination of employment (Bogunovich v Bayside Western Australia Pty Ltd (1999) 79 WAIG 8 (FB)). A termination of employment albeit unfair, does not automatically render the resultant period of unemployment a future loss. Indeed in the circumstances of this appeal the redundancy which was found to be for genuine reasons did not render the appellant’s subsequent period of unemployment the loss which was causally linked to the act of being made redundant. Just as a finding of fact will sometimes on the balance of probabilities involve a determination as to how long the claimant might have remained in current employment but for the act of being unfairly dismissed, so too will the inadequacy of notice be the loss causally linked to the unfair dismissal. A finding of fact as to loss based on this is not itself an exercise involving an assessment of compensation; but nor is it a vehicle to reduce an award of compensation (see Bogunovich’s Case (op cit) at 8 and WA Access Pty Ltd v Vaughn (2001) 81 WAIG 373 (FB)). 49 The dichotomy of “substantial” and “procedural” unfairness has been used to distinguish between types of dismissal which are unfair on the basis that although there was justification for the employment relationship being brought to an end and those where there should not have been a dismissal at all. The distinction has been regarded as relevant to the quantification of compensation under section 23A of the Industrial Relations Act, 1979. (Dellys v Elderslie Finance Corporation Ltd (2003) 82 WAIG 1193 (IAC)). However with respect I suspect that while this approach may provide a convenient framework in which to apply section 23 of the Act there is a risk that the fundamental step of making findings as to loss or injury arising from the unfair termination may be omitted. Compensation is not conditioned by the nature of the unfairness, but determined by the extent of the loss. 50 Although summarily expressed the finding of fact as to the loss arising from the unfairness of the termination made in the matter under appeal was open to the Commissioner in the first instance. 51 In this respect the Commissioner did not err in the exercise of discretionary power pursuant to section 23A of the Act. Having made the finding of loss it was incumbent upon the Commission to then have regard to the amount based on the common law requirement to take into account the amount that would have been earned during the period of reasonable notice before the employment was terminated. In this respect it matters not whether the payment in lieu of notice arose out of the contractual entitlement or not. The fact of that payment was relevant to the quantification of compensation (Dellys’ Case (op cit)). The assessment of the loss of the period of notice arising from the unfair dismissal and the quantification of compensation arising from that loss as being equivalent to the payment already made to the appellant was open to the Commissioner. 52 On the basis of this there is nothing in the grounds of appeal to justify overturning the decision of the Commission or the order which issued. The appeal should be dismissed. SENIOR COMMISSIONER A R BEECH— 53 I can shortly state my reasons for dismissing the appeal. The facts of the matter are set out in the Reasons for Decision of his Honour the President. Mr Caffrey, in ground 1 of the appeal, submits that a sound discretionary judgment by the learned Commissioner ought to have resulted in an order that Mr Caffrey be paid compensation for his period of unemployment subsequent to the dismissal. 54 As Mr Mullally properly conceded, however, in the case of a redundancy, as is the case here, considerations arise whether the employment contract would have continued had the dismissal not occurred. There is nothing in the evidence of this matter which could lead to the conclusion that the Commission erred in its findings of the reasons for dismissal. The employment contract would not have continued past the point at which the position was made redundant. The unfairness found by the Commission at first instance derived principally from the failure of the respondent to discuss matters with Mr Caffrey. It cannot be said in those circumstances that Mr Caffrey’s loss is the loss of the wages he would have earned had he not been dismissed. To the contrary, once the position held by an employee becomes redundant, it is difficult to see how the employee’s 1386 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. loss can be assessed on the basis of future loss of earnings unless the redundancy is shown to have been false and the dismissal unfair for that reason. In such a circumstance the employee should not have been dismissed and would, had the dismissal not occurred, have remained in employment. The loss caused by the dismissal is based upon the wages he would have earned had he not been dismissed. That is not the case here. I find that ground 1 is not made out. 55 By the second ground of appeal Mr Caffrey states that the Commission fell into error in failing to assess his loss from the harsh, oppressive and unfair dismissal separately from the payments made to Mr Caffrey at the time of dismissal. Those payments included, relevantly, five weeks’ salary in lieu of notice and 26 weeks’ salary by way of a redundancy payment. Mr Caffrey argues that those payments did not arise from the nature or character of the dismissal but from the terms of the contract (either express or implied) and would have been payable by the respondent even if the dismissal had been found not to be unfair. 56 To the extent that the submission is made that any entitlements due to Mr Caffrey were paid to him independently of whether the dismissal was fair or unfair, the submission must be accepted. The entitlements due to Mr Caffrey upon his dismissal are the entitlements due under his contract of employment. Those entitlements may be express or implied. Once those entitlements are paid, they do not, and cannot, contribute to any finding of unfairness in the dismissal which occurred. 57 The power given to the Commission in s.23A to order the payment of compensation for the loss or injury caused by the dismissal necessarily involves a finding by the Commission of the loss or injury caused by the dismissal. This the Commission did as follows— “Compensation I now turn to the issue of compensation in lieu of reinstatement. I consider the applicant’s loss in this case is represented by a period of time which would constitute sufficient notice over and above what was given to enable possible job interviews to take place and alternative positions to be canvassed which I find in this case to be five weeks. However, given that the applicant was paid a redundancy payment of 26 weeks’ pay and five weeks’ pay in lieu of notice this amount of five weeks’ pay as compensation is to be offset against these payments (Dellys v Elderslie Finance Corporation Ltd) 82 WAIG 1193. Thus, no monies are due to be paid to the applicant.” (Reasons for Decision at [59]) 58 The Commission at first instance thus concluded on grounds reasonably open to her that Mr Caffrey’s loss caused by the dismissal was a period of time which would constitute sufficient notice over and above what was given. That was assessed as being five weeks. 59 The Commission then took into account the payments made to Mr Caffrey upon his dismissal. It must be said that the Commission was not only perfectly entitled to do so, the Commission had a duty to do so: FDR Pty Ltd v. Gilmore (1998) 78 WAIG 1099 per Anderson J at 1102. His Honour there stated— “I am not persuaded that there has been any error of law. Commissioner Beech and the Full Bench expressly adverted to the payment made by the employer and expressly acknowledged that it was a circumstance to be taken into account in the exercise of discretion whether to make an order for compensation under the subsection.” 60 In that matter, Mr Gilmore, the dismissed employee was paid six months’ wages in lieu of notice plus a further payment equivalent to approximately three weeks’ wages for each year of service (see J Gilmore v. Cecil Bros and Others (1996) 76 WAIG 1184 at 1189). However, on the facts of that matter, and in particular the reasons for the dismissal being found to be unfair, it could not be said that there was any duplication of the payments made at point of dismissal with the compensation ordered for the unfairness of that dismissal. Much therefore will depend upon the facts of the particular case. In this case, it is difficult for Mr Caffrey to say there is no duplication between the payments made and the loss caused by the dismissal as found by the Commission. 61 I remain of the view that an employer is not able to overcome any deficiencies in fairly dismissing an employee such that the dismissal is harsh, oppressive or unfair merely by paying at termination a sum of money, whether that sum of money is equal to or greater than any entitlements due to the employee (ibid. at 1187). Where, as here, the loss established by the Commission at first instance is a loss of a period of time, and where payments by nature of a redundancy payment were made, then without more, it cannot be said that the Commission erred in taking those payments into account. Indeed, in some circumstances, the failure to give insufficient notice may not of itself lead to any loss compensable by the powers given to the Commission under s.23A of the Act (Garbett v. Midland Brick [2003] WASCA 36 at [85]). That does not mean that the dismissal was not still an unfair dismissal. It means only that the dismissed employee has not shown that she, or he, has suffered any loss or injury caused by that unfairness. 62 For those reasons, appeal ground 2 is not made out. 63 Appeal ground 3 goes to an allegation that the Commission ought to have ordered compensation to be paid for the period of time Mr Caffrey had been unemployed to the date of hearing. In my view, that ground is not made out for the reasons I have already given. 64 For those reasons, I agree with the order to issue. THE PRESIDENT— 65 For those reasons the Full Bench dismissed the appeal. Order accordingly _________ 2003 WAIRC 08220 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES PETER JOHN CAFFERY, APPELLANT - and - CHUBB SECURITY AUSTRALIA PTY LTD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN SENIOR COMMISSIONER A R BEECH DELIVERED THURSDAY, 1 MAY 2003 FILE NO/S. FBA 54 OF 2002 CITATION NO. 2003 WAIRC 08220 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1387 _________________________________________________________________________________________________________ Decision Appeal dismissed Appearances Appellant Mr P E Mullally, as agent Respondent Mr J H Brits (of Counsel), by leave _________________________________________________________________________________________________________ Order This matter having come on for hearing before the Full Bench on the 12th day of March 2003, and having heard Mr P E Mullally, as agent, on behalf of the appellant, and Mr J H Brits (of Counsel), by leave, on behalf of the respondent, and the Full Bench having reserved its decision on the matter, and reasons for decision being delivered on the 1st day of May 2003 wherein it was found that the appeal should be dismissed, it is this day, the 1st day of May 2003, ordered that appeal No. FBA 54 of 2002 be and is hereby dismissed. By the Full Bench, (Sgd.) P. J. SHARKEY, [L.S.] President. ____________________ 2003 WAIRC 08374 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ROBERT ASHLEY JAMES, APPELLANT - and - AUSTRALIAN INTEGRATION MANAGEMENT SERVICES CORPORATION PTY LTD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER J F GREGOR DELIVERED FRIDAY, 23 MAY 2003 FILE NO/S. FBA 55 OF 2002 CITATION NO. 2003 WAIRC 08374 Unfair dismissal claim – Appeal to Full Bench – Summary dismissal not unfair – Misconduct Incompetence – Whether employer condoned misconduct _________________________________________________________________________________________________________ Decision Appeal dismissed Appearances Appellant Mr G McCorry, as agent Respondent Ms M G Saraceni (of Counsel), by leave _________________________________________________________________________________________________________ Reasons for Decision THE PRESIDENT— INTRODUCTION 1 This is an appeal by the above-named appellant, Robert Ashley James (hereinafter referred to as “Mr James”), against the above-named respondent, Australian Integration Management Services Corporation Pty Ltd (hereinafter referred to as “AIMS”), against the decision of the Commission at first instance, constituted by a single Commissioner. The appeal is brought under s.49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”). 2 The decision appealed against is the decision of the Commissioner on 9 December 2002 in matter No 2119 of 2001. The decision appealed against is a decision dismissing an application made by Mr James pursuant to s.29(1)(b)(i) and (ii) of the Act. GROUNDS OF APPEAL 3 The grounds of the appeal are as follows (see page 2 of the appeal book (hereinafter referred to as “AB”)):- “1. The learned Commissioner erred in fact and in law in finding that the Appellant “misconducted himself by not fulfilling the requirements of the job for which he claimed he had the skills to undertake and for which he was employed” in that— a) The Appellant’s failure to perform particular tasks to the standard required by the Respondent does not amount to incompetence or neglect constituting misconduct justifying summary termination; b) There was no evidence or no reliable evidence that the Appellant had misrepresented his skills and qualifications to the Respondent or failed or neglected to exercise such skills; c) The Respondent, in making the decision to recruit the Appellant, did not rely upon any representations by the Appellant about possessing particular skills and abilities or in the alternative, recruited him knowing that the Appellant did not possess all the attributes that the Respondent required; 1388 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. d) The Respondent waived its right to summarily terminate the Appellant’s for performance reasons when it became apparent that the Appellant was not performing to the standard required by the Respondent but nonetheless elected to maintain the contract. 2. The learned Commissioner erred in fact and in law in finding that the Appellant’s contract of employment provided for a salary of $60,000 per annum, to be paid pro-rata for the period of the nine month contract, in that— a) there was no evidence or no reliable evidence that the $60,000 was to be an annual figure to be paid pro-rata; and b) the finding is contrary to the express terms of the written agreement. ORDERS SOUGHT 1. The appeal be upheld. 2. The order of the Commission be set aside and in lieu thereof it be ordered— a) That the Respondent pay to the Appellant a sum equivalent to the value of the balance of the fixed term of the Appellant’s contract of employment; and b) That the Respondent pay to the Appellant the difference between the salary actually paid during the period of employment and the salary that should have been paid calculated on the basis that the salary was $60,000 for the nine month term of the contract.” APPLICATION TO AMEND 4 Application was made on behalf of Mr James to amend the grounds of appeal by inserting a new ground, 1A, in the following terms:- “1A. The learned Commissioner erred in law in making findings as to the misconduct of the Appellant when the issue of misconduct was not raised or argued by the Respondent, did not form any part of the Respondent or Appellant’s cases and the Appellant and the Respondent were not given any opportunity to make submissions as to whether or not misconduct was an issue or there was any or any adequate evidence to sustain such a finding.” 5 This ground was effectively covered by ground 1, and for that reason the Full Bench dismissed the application to amend. BACKGROUND 6 The appellant, Mr James, alleged by an application filed in the Commission pursuant to s.29(1)(b)(i) and (ii) of the Act, that he was unfairly dismissed by his employer, AIMS, the respondent, on 9 November 2001. He also claimed monies owing to him, he alleged, under a fixed term contract of employment between the parties. 7 AIMS opposed the application on the basis that there was no unfair dismissal and that Mr James was not owed any monies pursuant to his contract of employment with it. 8 Mr James gave evidence on his own behalf and Mr Stephen James MacPherson, AIMS general manager court security and custodial services, gave evidence on behalf of AIMS. There was also documentary evidence. 9 It is to be noted that the Commissioner at first instance found, having heard and seen the witnesses, that she preferred the evidence of Mr MacPherson to that of Mr James. The findings made for that reason have not been attacked on this appeal. Accordingly, the following narrative of fact is based on those findings of the Commissioner, as well as the evidence of Mr James when there is no conflict between his evidence and the evidence for AIMS. 10 AIMS, at the material times, was a party to a contract with the Ministry of Justice (hereinafter referred to as “MOJ”) whereby AIMS provided services related to custody at courts of prisoners, court security and transportation of prisoners, throughout Western Australia. Needless to say, such transporting of prisoners occurs in prison vans or security vehicles. The service provided was described as AIMS Court Security and Custodial Services. 11 Mr James commenced employment with AIMS on 2 July 2001 pursuant to a fixed term contract of employment of nine months duration. He was, however, dismissed on 9 November 2001, after a little over four months employment by AIMS. He was employed by AIMS as a logistics manager, having obtained this position through a recruitment firm called Dunhill Management Services Group (hereinafter referred to as “Dunhills”), and, in particular, Mr Adrian Sommerville, its manager. Mr Sommerville had his resume and thought that he would be suitable for the position. Mr Sommerville then sent him to Mr MacPherson. Mr MacPherson had offered the position to two candidates ahead of Mr James and neither took up the position of logistics manager. 12 In June 2001, Mr James had a meeting with the general manager of AIMS, Mr MacPherson, and there was a discussion about the nature of the job, but Mr James could not recall any discussion about salary. He said that he had previously been informed about the salary by Mr Sommerville of Dunhills. It was, however, Mr James’ understanding that he was to be employed on a nine month fixed term contract with a salary of $60,000.00. Further, he was to be provided with a car for business and private use, as well as superannuation payments which would be made on his behalf, and he was to be paid a bonus at the end of the nine month contract if he performed well. 13 In the first interview with Mr MacPherson, Mr James was told the nature of the respondent company, the range of tasks and responsibilities which the position would have, and the nature of the person who would fill the position. Mr MacPherson also emphasised to Mr James the need for someone to fill the position who would be a person on whom Mr MacPherson could rely to take responsibility for the delivery of “outcomes”. 14 Mr James was told that he would be given a fair degree of autonomy to implement reforms, checking back with Mr MacPherson on his direction, but not under any direct day to day supervision. What he did in fact do when he was engaged was, until October 2001, to manage AIMS’ transport and operations, oversee material acquisitions, manage and develop organisational systems in relation to purchasing practices and undertook a senior role in relation to the performance of AIMS’ obligations under its contract with MOJ. That that was the case was not at all contested and was obvious from the evidence. 15 In the course of discussions, during the second interview, there was discussed the fact that whilst Mr James did not immediately strike Mr MacPherson as meeting all of the requirements, they, in discussion “investigated the extent to which he would meet those needs”. It was not denied that Mr James assured Mr MacPherson during that interview that he had had considerable success in is previous ventures. In fact, Mr James informed Mr MacPherson that he had reformed and improved a previous organisation to such an extent that it became very profitable. Further, according to Mr James, it became so profitable that the owner sold it, which is why Mr James left the company. (He did not advise Mr MacPherson that this had been his own business). 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1389 16 During the second interview, considerable time was spent going through the terms and conditions which would apply to Mr James’ employment. On Mr MacPherson’s evidence, which the Commissioner at first instance accepted, those conditions were as follows (and see also exhibits A1, R2 and A5):- a) That he would be paid nine twelfths of an annual salary of $60,000.00 by monthly amounts. b) That he would be employed for a fixed and finite period of nine months. c) That he would be provided with a car for work and for private use which would be fully maintained by AIMS. d) That he would be afforded the use of a telephone. e) That, at the end of the contract, he would be paid a bonus if his performance merited it. 17 Mr James asserted that his salary was $60,000.00 for the whole of his nine month fixed term contract. 18 Mr MacPherson explained to Mr James in the course of these discussions why the term of the contract was fixed at nine months and why the annual salary would therefore be paid on a pro-rata basis. There was no doubt, and it was not disputed, that it was made clear in the evidence by Mr MacPherson that the contract was for nine months only. Further, as Mr MacPherson said “there was no room for ambiguity” because there had been “specific and clear discussions on that matter”. Again, as I have said, the Commissioner at first instance accepted Mr MacPherson’s evidence, and, on a careful reading of the transcript, it is quite clear that the reason she gave for so doing was correct. 19 Mr James was provided with a Holden Commodore and paid the monthly portion of nine twelfths of $60,000.00 on or about the 15th day of each month. Mr MacPherson received a copy of an unsigned letter from Dunhills to Mr James dated 28 June 2001 (exhibit R2, page 50 (AB)) in which, inter alia, the amount of $60,000.00 was prescribed as the annual salary and was said to be payable on a pro-rata basis for the period of the contract. There was no evidence that Mr James, at any time before the termination of his contract of employment, complained that he was not being paid what was agreed between the parties. 20 At no time in evidence did Mr James admit or assert that he was incapable of doing the job. 21 Mr MacPherson’s evidence, which was not denied, was, in cross-examination even, that Mr James represented himself as being an expert logistics manager to Mr MacPherson (see page 171 of the transcript at first instance). 22 After the interview, Mr James was offered employment commencing on 2 July 2001, but his letter of appointment was dated 11 September 2001 (exhibit A1). He was unaware, he said, why it took so long to have his employment with AIMS confirmed in writing. He signed that letter of appointment himself on 14 September 2001. 23 On Mr MacPherson’s evidence, which was accepted, the following were the flaws in Mr James’ performance, and the following were the warnings to him or counselling of him by Mr MacPherson:- a) At management meetings, Mr James was not comfortable and his performance was poor from the start. b) Mr James admitted that Mr MacPherson told him that it was his job to achieve the outcomes required, every second day. That accords with Mr MacPherson’s evidence that he counselled Mr James about his expectations in relation to specific matters being discussed, and in terms of his general performance. c) Mr MacPherson complained that Mr James was inarticulate and inattentive to detail, and the tasks which were allocated to him he very frequently did not perform. Mr MacPherson himself had to follow them up. That, it is fair to say, is entirely borne out by evidence of particular incidents to which I refer hereinafter. d) In particular, there were a number of instances of incompetence which were referred to in Mr MacPherson’s evidence:- i) Mr James was asked to complete an assets register which he did not do even though some information about assets was in Queensland, and there was clearly no valid reason offered why he did not pursue and obtain that information and complete the register. ii) Mr James’ communication skills were very poor and of primary school standard. He had to be regularly reprimanded about this or his communications corrected (see page 137 of the transcript at first instance). iii) A serious matter arose because the inspector of prisons, Professor Richard Harding, criticised in a report the malfunctioning or poor standard of air conditioning in the security vans used for transporting prisoners. This was a serious criticism, particularly because of the transportation of prisoners in the hot areas of this State. It was also a serious matter because the criticism was made by the inspector of prisons. (One ventures to say that it is important in relation to all areas of the State in summer). Such a criticism required an urgent remedy because of the effect such a report might have on the contract with MOJ. iv) The evidence was quite clear that Mr James accepted an assertion by the air conditioning contractor, when he queried this matter with that contractor, that drivers were not using the air conditioning mechanism correctly. For that reason, he did not seek to remedy the situation. He certainly did not do so with any urgency. The problem was not remedied until Mr MacPherson directed him to make an appointment for the contractor with Mr MacPherson. That occurred with Mr James present and taking very little part. Mr MacPherson’s intervention was what solved the problem. Mr MacPherson was, naturally enough, not at all pleased and counselled Mr James about this (see exhibit R5, page 51 (AB)). v) On 21 September 2001, Mr MacPherson had a meeting with Mr James because it was clear to him that Mr James was having difficulty fulfilling the requirements of his position, as a senior manager. A number of matters were raised, and Mr James was warned that he would be dismissed unless there was an immediate and dramatic improvement in his work (see exhibit R6, and pages 21-22 (AB), which is the note of this discussion made by Mr MacPherson). On Mr MacPherson’s evidence, there was no real denial of any of the matters of complaint by Mr James. Indeed, Mr James acknowledged the criticisms and said that he was capable of improving as he was being required to do. vi) Some time after that, Mr MacPherson counselled Mr James about a serious matter. In August 2001, Mr MacPherson asked Mr James to procure a Mercedes security van to replace one which had been stolen and destroyed by thieves. This was a matter of some urgency, as was expressed to Mr James, because the fleet of security vans was one down in numbers. Mr MacPherson instructed Mr James to ensure that the vehicle was procured with the right configuration and in accordance with the correct specifications. Mr James went to the dealer from whom other vehicles had been obtained in the past and raised an order, but, there was no evidence that he gave the correct and accurate specifications for the vehicle which was required. Further, there is no evidence that the order which he raised contained the correct specification, and, indeed, the order was not adduced in evidence to establish such a fact. The vehicle, which had to be procured from Queensland, did not arrive until about 8 October 2001, which was certainly not an urgent answer to the instruction given by Mr MacPherson. However, more seriously, the vehicle was unsuitable and could not be used for the purposes 1390 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. for which it was required, because it had only one door at the side, instead of the two required for vehicles carrying prisoners. Because of the necessity for alteration, which, of course, cost more, the vehicle was not available for use until early 2002, well after the termination of Mr James’ employment. e) In early October 2001 (see exhibit R8, page 52 (AB)), because of his poor performance, Mr James was transferred, with his agreement, to a lower level of managerial job, namely transport co-ordinator at Hakea Prison, Perth. This was first of all on a temporary basis, pending his appointment to the role, and was clearly a demotion. It was a more limited and less senior role and was confined to the management of the AIMS transport operation working out of the Hakea Prison. f) There, he was required to reduce the expenditure on overtime, but failed to do so, that expenditure, in fact, increasing whilst he was there. g) He was also directed by Mr MacPherson to personally ensure that all drivers of the security vehicles had their permits to drive renewed prior to 31 October 2001. It was clearly a condition of their employment that they could not drive the security vehicles without a permit to do so from the MOJ. It was common ground that he did not do this, and that he delegated the task to another employee. As a result, one driver did not obtain the renewal of his permit, and had to be removed from a vehicle which he was driving without the requisite permit, causing cost and inconvenience and embarrassment to AIMS. This was clearly a serious matter because what occurred was contrary to a strict condition imposed on AIMS by MOJ. Again, Mr James was counselled about this matter, too (see exhibit R9, page 53 (AB)). h) Mr James had the responsibility of drafting and implementing new rosters for AIMS employees at Hakea Prison. He discussed these with the representatives of the relevant organisation of employees. i) It was a strict condition of the AIMS/MOJ contract that the vans leave Hakea Prison each day to take prisoners to the courts very punctually. This was so that the courts would not be delayed. Failure to comply with this condition could, it was the evidence, have serious consequences, under the contract, for AIMS. j) On 8 November 2001, Mr James was late for work because he had to take his daughter to school, his wife being ill. There was a stop work meeting of employees that morning, and the vans did not leave at the required time. Indeed, they did not commence to leave until about 9.00am, and only after a supervisor had reported the delay, and the stop work meeting of employees which caused it, to Mr MacPherson. Mr MacPherson then intervened and remedied the situation. That there was a stop work meeting occurring was unknown to Mr James, he said, and he had not approved of it. As a result of this serious problem, Mr MacPherson asked Mr James to hand over the position at Hakea Prison to another person, and he did so. Later that morning, the same day, on 8 November 2001, Mr James and Mr MacPherson met in Mr MacPherson’s office. Mr MacPherson had decided, because of this occurrence and all of the incidents which had occurred, and because, too, of Mr James’ inability to perform his work competently, to ask Mr James why his services should not be terminated. At the meeting, Mr MacPherson asked Mr James for an explanation about the failure of the vans to leave on time. Mr James said that he did not know that the stop work meeting was going to occur. Mr James offered no real explanation about the matter, serious as it was. Mr MacPherson informed him about the seriousness of the matter and explained that Mr James had received warnings about his performance and that his contract should be terminated (see pages 111-113 (AB)). Mr MacPherson suggested that it would be better for Mr James if he resigned rather than be dismissed, but, if he did not resign Mr MacPherson said, he would be dismissed. Mr James said that he was shell shocked and therefore said nothing. (Mr MacPherson made a written note after the meeting (exhibit R12, page 54 (AB)). k) On 9 November 2001, the next day, there was a discussion between them in the course of which Mr James asked Mr MacPherson to reconsider the termination of the contract, but Mr MacPherson declined to do so. There was, however, an agreement reached between them, in any event, that AIMS would pay Mr James four weeks salary in lieu of notice, and that, as it transpired, was done. l) With the consent of Mr MacPherson, Mr James went away to consider whether he would resign. Later, he advised Mr MacPherson that he would not resign and refused to sign a deed of release forwarded to him by AIMS. m) On 21 November 2001, he was given written notice of the termination of his employment and paid an amount equal to four weeks salary in lieu of notice. There was, as I have observed, no evidence that Mr James complained during the currency of his contract of employment that he was not being paid the correct amount of his salary. (See exhibit A8). FINDINGS AT FIRST INSTANCE 24 The Commissioner at first instance found as follows:- a) That wherever there was a conflict in the evidence she accepted Mr MacPherson’s evidence in preference to that given by Mr James, because Mr MacPherson gave his evidence thoroughly and in a clear, considered and forthright manner. He had a detailed and clear recollection of relevant events which was corroborated by a number of exhibits, and she had no reason to doubt his evidence. That, thus, where the evidence was in conflict she preferred the evidence of Mr MacPherson to that given by Mr James. b) That she did not have the same confidence in the evidence given by Mr James because he reluctantly conceded that his curriculum vitae was inaccurate and he had to be pressed in cross-examination to admit that significant performance issues were raised with him by Mr MacPherson. c) That she formed the view that Mr James could have been more forthcoming than he was on a number of significant issues, and formed the view further that he deliberately did not recall events as they had actually occurred. e) That Mr James was employed by AIMS on a full-time basis from 2 July 2001 to 9 November 2001. f) That he was employed on a fixed term contract of nine months on an annual salary of $60,000.00, together with superannuation contributions and a possible bonus at the end of nine months, depending on performance and that his remuneration also included access to a car and telephone for both business and private use. g) That Mr James was employed in a senior position as AIMS’ logistics manager, and that in this position, which carried a substantial remuneration package of approximately $85,000.00, Mr James was expected to act with initiative and a large degree of autonomy. h) That Mr James managed AIMS’ transport and logistics operations and he oversaw material acquisitions, and that he also managed and developed organisational systems in relation to AIMS’ purchasing practises. i) That he undertook a senior role within the context of AIMS having a contract with the MOJ, which could be terminated if specific targets and expectations were not met. j) That in September 2001, it became clear to Mr MacPherson that Mr James was having difficulties fulfilling the requirements of the senior management position for which he was employed. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1391 k) That a meeting was held between Mr James and Mr MacPherson on 21 September 2001 whereby Mr MacPherson raised a number of performance issues with Mr James, and that the meeting went on for some time and a range of issues were canvassed. l) That she accepted Mr MacPherson’s summary of the meeting (exhibit R6), namely that Mr MacPherson gave Mr James a very serious warning about his performance, and that dismissal would be the consequence of a failure on his part to immediately and dramatically improve his performance. m) That in that discussion he gave examples of Mr James’ non-performance, including the very poor result from his work on vehicle air conditioning systems, delays in outcomes including the asset register, and poor written communication. n) That his evidence was also that Mr James acknowledged all of these points, did not argue any of them, and assured Mr MacPherson that he was capable of the improvement needed. That note is dated 21 September 2001. o) That Mr James acknowledged that problems and mistakes had been made and gave a commitment to Mr MacPherson that he would improve his performance. p) That Mr James was told that unless there was substantial and immediate improvement in relation to his performance then his contract of employment would be reviewed. q) That in relation to obtaining a replacement transport vehicle Mr MacPherson told Mr James of the importance of the vehicle configuration and that Mr James was counselled about this serious omission. (r) That matters came to a head when AIMS temporarily transferred Mr James to the lower level position of transport co- ordinator at Hakea Prison in early October 2001. He was so transferred pending a permanent appointment to that role. s) That Mr James was instructed by Mr MacPherson to personally ensure the drivers’ permits were renewed by 31 October 2001, and it was common ground that Mr James did not do this. t) That Mr James delegated this task to others even though he was specifically told to personally deal with this matter. u) That this matter was a serious issue and there were strict conditions binding AIMS under the terms of the AIMS/MOJ contract in relation to this matter. (v) That an incident occurred which contributed to the employer forming the view that Mr James was unable to fulfil the terms of his contract of employment and that incident was a stop work meeting of transport drivers which took place on 8 November 2001. (w) That despite attempts by Mr James to negotiate a new roster with the drivers at Hakea Prison those discussions were unsuccessful and this led to a stop work meeting to consider Mr James’ proposed roster changes. (x) That she accepted the evidence of Mr MacPherson that it was most unusual for a stop work meeting to occur, and industrial action had not occurred previously which had any impact on the ability of AIMS to undertake its operations. (y) That the stop work meeting was a serious matter for AIMS given that part of its contract with the MOJ was to ensure that prisoners were transported to the courts on time. (z) That Mr James had to take some responsibility for the stop work meeting occurring as ultimately he was responsible for designing and implementing a new roster. (aa) That the Commissioner accepted Mr MacPherson’s evidence that Mr James did not assist with any resolution of this matter and it was up to Mr MacPherson to resolve the issue. (bb) That once Mr MacPherson intervened in the dispute the transport drivers went back to work. (cc) That at a meeting between Mr James and Mr MacPherson later that afternoon, namely 8 November 2001, it was put to Mr James that given the ongoing difficulties with his performance he should justify why he should not be terminated. (dd) That Mr James was unable to demonstrate that his employment as a senior manager should be ongoing. (ee) That given Mr James was experiencing major difficulties in fulfilling his obligations as a senior manager subsequent to this meeting, it was appropriate for AIMS to form the view that Mr James’ contract of employment should be terminated. (ff) That Mr James was unable to perform the duties required of him as a senior manager and he did not have the necessary competence to fulfil this role. (gg) That he had represented himself as an experienced senior manager, but was unable to demonstrate the requirements of a position of this nature throughout most of his employment with AIMS. (hh) That there were sufficient reasons for the termination of Mr James’ contract of employment since he effectively misconducted himself by not fulfilling the requirements of the job for which he claimed he had the skills to undertake and for which he was employed. (ii) That AIMS had legitimate and ongoing concerns in relation to a number of areas where Mr James was unable to complete his duties effectively and efficiently in the manner normally expected of a senior manager. (jj) That the evidence was clear that Mr James was incapable of even meeting the demands of the lower level position of transportation co-ordinator at Hakea Prison. (kk) That Mr James was afforded procedural fairness in relation to his termination and was kept informed by Mr MacPherson about his performance problems on an ongoing basis, also being given reasonable opportunities to improve his performance. (ll) That several disciplinary discussions were held between Mr James and Mr MacPherson (see exhibits R6, R8 and R9). (mm) That before the meeting of 8 November 2001, AIMS gave Mr James sufficient warning that his job was in jeopardy and that AIMS had serious concerns with Mr James’ performance and his ability to undertake the job for which he was employed. (nn) That Mr James tried hard in order to fulfil his role with AIMS, as acknowledged by Mr MacPherson in his discussions with Mr James on 8 November 2001 when Mr James was given the opportunity to resign. (oo) That given Mr James’ inability to adequately fulfil the requirements of his position, and given that Mr James decided not to resign, it was not unreasonable for Mr MacPherson to terminate the contract of employment. (pp) That given the way in which the MOJ contract operated and that penalties applied when breaches of the contract occurred, it was not unreasonable for AIMS to be concerned that this contract would be threatened by having Mr James remain in its employment. 1392 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. (qq) That even though Mr James was terminated without notice, he was, subsequent to termination, paid four weeks pay in lieu of notice. (rr) That Mr James was not unfairly terminated either procedurally or substantively. (ss) That Mr James was not owed the balance of his nine month contract. This was because he misconducted himself by not fulfilling the requirements of the senior manager position for which he was employed, and which he had held himself out as having the required skills to properly perform. (tt) That it was thus appropriate for AIMS to terminate Mr James’ contract of employment when AIMS did even though his contract of employment was for a fixed term. This was because by his inability to perform, he repudiated the contract of employment and AIMS was entitled to terminate it. ISSUES AND CONCLUSIONS 25 The decision in this matter was a discretionary decision as that term is defined in Norbis v Norbis (1986) 161 CLR 513 (see also Coal and Allied Operations Pty Ltd v AIRC and Others (2000) 203 CLR 194). 26 Accordingly, there is no warrant in the Full Bench to interfere with the decision of the Commission at first instance unless the appellant establishes that the exercise of the discretion miscarried according to the principles laid down in House v The King [1936] 55 CLR 499 (see also Gromark Packaging v FMWU (1993) 73 WAIG 220 (IAC)). 27 In particular, the Full Bench has no warrant, unless it is established that there was a miscarriage of the discretion at first instance, to substitute its own exercise of discretion for that of the Commissioner at first instance. 28 Significantly, the grounds of appeal make no attack on the finding that the dismissal of Mr James was not unfair. 29 Next, I also observe that the grounds of appeal do not attack the findings of fact in the matter which were made by the Commissioner after her acceptance of Mr MacPherson’s evidence in preference to that of Mr James’, as I have previously observed. It follows that all of those findings stand. Ground 1 30 Ground 1 alleges that the Commissioner at first instance erred in fact and in law in finding that Mr James “misconducted himself by not fulfilling the requirements of the job for which he claimed he had the skills to undertake and for which he was employed” (sic). 31 The attack is on the alleged summary dismissal of Mr James. It is not an attack on the finding that there was no unfair dismissal or that an unfair dismissal had not been established. I would find ground 1 not made out for that reason alone. 32 However, were it to be said that, implicit in that ground was an attack on the finding that there was no unfair dismissal, then I would express myself as I do hereinafter. 33 I would also observe now, since the ground does not accurately express the Commissioner’s finding, that the Commissioner at first instance found (see paragraph 120, page 23 (AB)) not that he “misconducted himself”, as is expressed in ground 1, but as follows:- “I find there were sufficient reasons for the termination of the applicant’s contract of employment as the applicant effectively misconducted himself by not fulfilling the requirements of the job for which he claimed he had the skills to undertake and for which he was employed.” 34 Ground 1 first alleges that the summary dismissal was not justified because Mr James’ failure to perform tasks to the standards required by AIMS, did not amount to incompetence or neglect constituting misconduct justifying summary dismissal; and that there was no evidence, or reliable evidence that he misrepresented his skills and qualifications, or failed or neglected to exercise such skills; and that in making the decision to recruit Mr James, AIMS did not rely on any representations by Mr James that he possessed skills or abilities, or in the alternative, recruited him knowing that Mr James did not possess all of the attributes which AIMS required. 35 Mr James refused to resign and was then dismissed as he was warned would occur. It was not an issue on the grounds of appeal that the dismissal was a purported summary dismissal. The complaint was that it was not justified on the facts or the law. 36 Once the Commissioner at first instance accepted Mr MacPherson’s evidence, as she did, and as, on a fair reading of the transcript she was clearly entitled to do, the Commissioner was entitled to make and should have made the following findings:- a) That the nature of the position of logistics manager, its duties and the requirements by AIMS of the occupant were clearly made clear to Mr James by Mr MacPherson. b) That, as was the evidence of both witnesses, the position which was offered and accepted, was a senior management position within the West Australian organisation of AIMS. c) That, although not mentioning that it was his own company, Mr James represented himself as being so competent in management of a company, as to have made that company so successful that it was sold at a profit, thus resulting in his becoming unemployed, but due to his building it up. d) That Mr James represented himself as an expert logistics manager to Mr MacPherson. e) That Mr James accepted the senior management position of logistics manager knowing the duties and what was expected of him. f) That Mr James was told every second day that he was required as a senior manager to deliver outcomes in matters. (That was his own admission). g) That he did not achieve the objectives laid out for him and did not attend to a number of important matters which he was required to attend to and that he was told so on 8 September 2001 by Mr MacPherson. h) That Mr James was warned and counselled in September 2001 about his failure to perform competently and also warned on that occasion that his employment was in jeopardy if his performance of his work did not improve. i) That in October 2001, he was demoted, without any protest on his part, and sent as a transport co-ordinator to deal with transport at Hakea Prison. j) (i) That he was informed at the beginning by Mr MacPherson, in the interviews before he took up the employment, that the salary which he would be paid was the pro-rata amount equal to nine months salary based on an annual salary of $60,000.00, paid monthly. (ii) That that was what he was paid and he made no protest about that until after he was dismissed, or there is certainly no evidence that he made any such protest. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1393 k) That Mr James was incompetent and did not exercise the skill and care required of a senior manager or the lower level of skill and care of a manager, when he was demoted, in that:- i) His ability to communicate in writing was below standard and was indeed “primary school standard”. ii) That he was unable to attend to the matters which he was asked to attend to and matters were not attended to. iii) (a) That he failed to comply with an instruction to acquire a vehicle to replace a vehicle which had been destroyed by thieves, which was unfit for the use required in that it only had one door when it required two doors. (b) That he failed to ensure that it had this right specification and that that specification was given and complied with by the supplier of it, notwithstanding that he was instructed to do precisely that. (c) That, as a result, AIMS was deprived of such a vehicle for some weeks when it was urgent that it be replaced. (iv) That Mr James failed to ensure that fire blankets required for the safety of persons were properly labelled and distributed with promptness. (v) That he failed to attend to and solve the problem raised by the inspector of prisons, Professor Richard Harding, about defective air conditioning operations in the security vehicle. (vi) That as a result of his failure to deal with the matter properly it had to be resolved by Mr MacPherson. (vii) That he failed to improve operations at Hakea Prison in a subordinate position, in particular, by reducing the amount of overtime work, or at all. (viii) That he failed to prevent or notify Mr MacPherson of the likely stop work meeting preventing vehicles leaving Hakea with prisoners for the courts at the prescribed time. Indeed, the delay was such as to constitute a breach of the strict conditions of the contract of AIMS with MOJ. (ix) That he failed to improve his performance after being counselled and warned in September 2001, and, indeed, on other occasions. (x) That he failed to complete the assets register by obtaining all of the available registration when it was available to him to do so and that he failed to report that he had not done so and/or was not able to do so. (xi) That he had failed to ensure by personal attention to the matter that all drivers had the required ministry permit to drive the security vehicles, thereby causing disruption and loss to AIMS’ operation, when a driver without a permit had to be brought back from the Geraldton-Carnarvon run. (xii) That he did not perform his duties competently as a senior manager or, very significantly, as a less senior manager after demotion. (xiii) That he failed to improve in his performance, even after warnings, counselling and demotion. 37 I now turn to questions of law relating to the competence of employees and right to summarily dismiss for incompetence. 38 Of course, it is trite to observe that summary dismissal will only be justified if there is a sufficiently serious breach of contract or the misconduct is such as to indicate that the employee no longer intends to be bound by the contract of employment. 39 Incompetence of an employee may certainly be sufficient justification for the exercise of the right of summary dismissal (see WA Rewind Company v Skennerton (1991) 71 WAIG 2045 (FB)). 40 The failure to afford the requisite skill which had been expressly or impliedly promised by an employee is a breach of legal duty and therefore misconduct (see Harmer v Cornelius [1843-60] All ER 624). It should be observed, that such a requirement does not apply only to the restricted classes referred to in Harmer v Cornelius (op cit). 41 The basis upon which the employer is entitled to summarily dismiss an employee for incompetence is twofold:- a) There must be an express or implied representation. b) There must be actual incompetence ((ie) if an employee possessing a particular skill fails to exercise it or if an employee holds himself out as possessing a particular skill which he does not himself possess) (see Printing Employees Union of Australia v Jackson and O’Sullivan Pty Ltd (1957) 1 FLR 175 (CIC)). 42 The following principles which amplify what I have just said also apply:- (a) A representation of the requisite skills by an employee may be implied from the fact that an employee applies for employment in answer to an advertisement setting out the required skills. (b) An employee has the onus of ascertaining the skills required for the job for which the application is made. (c) Acceptance of employment will, unless there is evidence to the contrary, amount to an implied representation that the employee has the necessary skill. (d) There will be no representation where the employer knows that the employee does not possess the requisite skills (see Printing Employees Union of Australia v Jackson (op cit)) (see, generally, Macken, O’Grady, Sappideen and Warburton “The Law of Employment” (5th Edition), pages 201-204). 43 In this case, the evidence was quite clear and it was open to find that there was an express representation once the duties and role of the position had been explained to Mr James, as they were, that Mr James expressly represented that he was competent to do the job. Further, and alternatively, within those principles, he represented himself impliedly by accepting the position, the duties and responsibilities of which had been explained to him, as being sufficiently competent to do the job, perform the duties and to carry out the functions and requirements which had been explained to him by Mr MacPherson and by Mr Sommerville. Further, there was uncontroverted evidence that he had expressly represented himself as a skilled logistics manager to Mr MacPherson. 44 Moreover, even if he did have the requisite skill or competence, Mr James failed or neglected to use or demonstrate those skills. Thus, despite warnings and counsellings, he did not demonstrate any or any sufficient competence to perform the job of logistics manager, or, indeed, the lesser job of transport co-ordinator. Indeed, Mr James demonstrated, for the reasons which I have expressed above, and on the basis of the findings which it was open to be made, and which I have set out above, that he was actually and patently incompetent and/or that he neglected to exercise the required skills, if he did possess them. 45 Put another way, the Commissioner at first instance was entitled to find as she did:- a) That Mr James was unable to fulfil his obligations as the senior manager which he represented himself to be. b) He was actually incompetent and/or neglected to display any or any sufficient competence as a senior manager and as a more junior manager when he was demoted. 1394 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. c) That he effectively actually misconducted himself by not fulfilling the requirements of two jobs which expressly and/or impliedly he represented himself as competent to undertake. 46 The Commissioner was entitled to find, as she did and was correct in finding on those facts, that Mr James had committed misconduct sufficient to justify summary dismissal, and that he was summarily dismissed. In any event, if there were no summary dismissal then for the same reasons, a fortiori, it was open to find that the termination was entirely fair, because of the major and protracted incompetence displayed by Mr James in two positions, at the very least. Alternatively, the dismissal was not established to be unfair, for all of the above reasons. Condonation 47 It was also alleged by ground 1 that even if there were misconduct it was condoned. In this case (see Rankin v Marine Power International Pty Ltd [2001] VSC 150 (unreported) per Gillard J (delivered 21 May 2001)) (see also Byrne and Another v Twaddle t/a Mount Hospital Pharmacy and Another (2003) 83 WAIG 5 at 15 (FB), Federal Supply and Cold Storage Co of South Africa v Angehrn (1910) 103 LT 150 and McCasker v Darling Downs Co-Op Bacon Association (1988) 25 IR 107), whilst the employer had full knowledge of the employee’s misconduct and retained him in his service, AIMS did not abandon, deliberately or otherwise, the right to summarily dismiss the employee. Indeed, in September 2001, when Mr MacPherson counselled and warned Mr James, he expressly reserved the employer’s right to dismiss and to dismiss summarily. There was no condonation and that ground has no merit. Ground 2 48 The second ground contains the allegation that Mr James was not paid what he was entitled to under the contract of employment, namely an amount calculated on the basis that the salary was $60,000.00 for a nine month contract, not nine twelfths of that sum, which would take into account that the contract was for nine months only. First, let me observe that on the evidence of the witnesses and by examination of exhibit A1 (pages 31-32 (AB)), it is quite clear that the letter of 11 September 2001 from AIMS to Mr James does not contain the whole of the contract of employment; and the evidence of Mr James was an admission that that was the case. That being so, the oral evidence of the contract and what it meant was admissible (see Knight v Alinta Gas Ltd (2002) 82 WAIG 2392 at 2397 (FB)). 49 Exhibit R2, the letter of 28 June 2001, from Dunhills, which is unsigned, to Mr James, which he says that he did not receive, nonetheless corroborates what Mr MacPherson said that he told Mr James and his evidence was accepted by the Commissioner at first instance. 50 Even if that were wrong, there is an ambiguity in the written evidence of the contract requiring explanation, and Mr MacPherson’s evidence, correctly accepted by the Commissioner, explains unequivocally what salary was agreed on. Further, if those views be wrong, it is, on the face of it, an absurdity to allege that a salary expressed in annual terms would apply as a whole to a lesser period than 12 months. Further, it is arguable that the contract of employment entered into initially was terminated consensually and replaced by a new contract of employment when Mr James became transport co-ordinator at Hakea Prison and that was an obstacle to his claim for payment of the contractual entitlements which he claimed. Further, his claim could only be for a salary to the date of termination of his contract for misconduct, in any event, it being correctly conceded by Mr McCorry, and not being asserted on appeal otherwise, that there was a right to terminate for misconduct. 51 It was open to find accordingly that Mr James was to be paid an annual salary of $60,000.00 expressed on a pro-rata basis to cover a nine month contract; and that is what Mr MacPherson unambiguously told him on his accepted evidence. That is, Mr MacPherson told Mr James what he was entitled to and he was therefore entitled, subject to the termination of the contract as it occurred, to be paid nine twelfths of $60,000.00 for salary for the period of nine months. That evidence was clear and accepted and it was open to be accepted. Further, there was evidence that there was no protest by Mr James about the amount being paid, until after Mr James was dismissed. Insofar, also, as that constitutes admissible evidence of the performance of the contract, as it clearly does, then it corroborates Mr MacPherson’s evidence of what the agreement was. It was not established at all, for those reasons, that there was any benefit under the contract to which Mr James was entitled which he was not paid. Finally 52 The Commissioner at first instance was correct to find as she did. The Commissioner was correct to dismiss the application. 53 For those reasons, I am satisfied that there was no error at first instance, discretionary or otherwise established by Mr James on this appeal. No ground of appeal was made out. For those reasons, I would dismiss the appeal. CHIEF COMMISSIONER W S COLEMAN— 54 I have read the reasons for decision of His Honour, the President. I agree with those reasons and have nothing to add. COMMISSIONER J F GREGOR— 55 I have had the benefit of reading the Reasons for Decision of His Honour the President in draft. I respectfully adopt those Reasons to which I add the following comments. 56 The Commissioner at first instance made a detailed series of findings on the evidence presented to her. She found that where there was conflict between the evidence given by Mr James, the Appellant herein, and Mr McPherson, who gave the leading evidence for the Respondent herein, that she preferred the evidence of Mr McPherson. The Commissioner expressed the reasons why she reached that conclusion. Suffice to say her Reasons for Decision record findings which are indicative of a failure by Mr James to perform the duties for which he was engaged. The Commissioner eventually concluded that Mr James had not been unfairly terminated. 57 The Appeal does not take issue with the findings of fact made by the Commission and the findings therefore stand. In fact there is no attack upon the finding that there was no unfair dismissal or that unfair dismissal was not established. It appears that the Appeal is directed to the finding that Mr James had not fulfilled requirements of the job and had therefore misconducted himself. In my view this approach is misconceived and the Appeal does not attack the fundamental findings of the Commissioner at first instance. There can be no warrant in those circumstances for the Full Bench to interfere with the Decision because the Appellant has not established that the exercise of discretion has miscarried (House v The King (1936) 55 CLR 499). 58 As His Honour the President has found the Decision was a discretionary one. The Full Bench has no warrant to interfere with it unless it is established there was a miscarriage of that discretion. The Appellant has not even attempted to argue that there was such a miscarriage and I respectfully agree with the President that Ground 1 is not made out. As for Ground 2 the clear finding of the Commission was that the annual salary of $60,000.00 was to be expressed on a pro rata basis to cover the nine months contract. In the face of such a finding based as it was upon the Commissioner’s determination of the credit of witnesses there is no warrant to interfere with it. The evidence was clear and it was accepted there was no protest about the amount of money which was paid to Mr James until after he was dismissed. This is consistent with Mr McPherson’s evidence of what the agreement was. For those reasons I would dismiss Ground 2. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1395 59 The Appeal fails on both grounds and should be dismissed. THE PRESIDENT 60 For those reasons the Full Bench dismissed the appeal. Order accordingly _________ 2003 WAIRC 08373 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES ROBERT ASHLEY JAMES, APPELLANT - and - AUSTRALIAN INTEGRATION MANAGEMENT SERVICES CORPORATION PTY LTD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY CHIEF COMMISSIONER W S COLEMAN COMMISSIONER J F GREGOR DELIVERED FRIDAY, 23 MAY 2003 FILE NO/S. FBA 55 OF 2002 CITATION NO. 2003 WAIRC 08373 _________________________________________________________________________________________________________ Decision Appeal dismissed Appearances Appellant Mr G McCorry, as agent Respondent Ms M G Saraceni (of Counsel), by leave _________________________________________________________________________________________________________ Order This matter having come on for hearing before the Full Bench on the 1st day of May 2003, and having heard Mr G McCorry, as agent, on behalf of the appellant, and Ms M G Saraceni (of Counsel), by leave, on behalf of the respondent, and the Full Bench having reserved its decision on the matter, and reasons for decision being delivered on the 23rd day of May 2003 wherein it was found that the appeal should be dismissed, it is this day, the 23rd day of May 2003, ordered that appeal No. FBA 55 of 2002 be and is hereby dismissed. By the Full Bench (Sgd.) P. J. SHARKEY, [L.S.] President. ____________________ 2003 WAIRC 08443 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JOSE RODRIGUEZ, APPELLANT - and - PARKS INDUSTRIES PTY LTD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY COMMISSIONER S J KENNER COMMISSIONER S WOOD DELIVERED FRIDAY, 6 JUNE 2003 FILE NO/S. FBA 6 OF 2003 CITATION NO. 2003 WAIRC 08443 _________________________________________________________________________________________________________ Decision Appeal upheld, order at first instance suspended and matter remitted to the Commission Appearances Appellant Mr P E Mullally, as agent Respondent No appearance _________________________________________________________________________________________________________ Reasons for Decision THE PRESIDENT— INTRODUCTION 1 This is an appeal by the above-named appellant employee against the decision of the Commissioner at first instance, made and perfected on 27 March 2003 in application No 255 of 2003, whereby the Commissioner dismissed an application by the appellant brought pursuant to s.29(3) of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”). 1396 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. 2 The appeal is brought pursuant to s.49 of the Act. It is not clear whether it is an appeal against a finding. 3 On the day fixed for the hearing of the appeal Mr P Mullally, Industrial Agent, appeared for the appellant. There was no appearance by or on behalf of the respondent. GROUNDS OF APPEAL 4 The appellant now appeals against the dismissal of the application, on the following grounds (see pages 2-5 of the appeal book (hereinafter referred to as “AB”)):- “1. The learned Senior Commissioner erred in law when having listed the appellant’s application for hearing he dismissed the appellant’s application, without hearing or taking any evidence on oath— PARTICULARS 1.1 The appellant’s application was filed out of time and in his application the appellant sought to obtain the benefit of Section 29(3) of the Industrial Relations Act. 1.2 When the application was called on for hearing on the 27th March 2003 the appellant’s Agent opened the case on the question of Section 29(3) and indicated his intention to call the applicant to give evidence in support of his application; 1.3 The learned Senior Commissioner at the conclusion of the appellant’s opening then invited submissions from the Respondent; 1.4 At the conclusion of the submissions the learned Senior Commissioner then adjourned shortly; 1.5 Upon resumption, the learned Senior Commissioner then announced that he did not need to hear evidence and proceeded to deliver oral reasons for decision at the conclusion of which he dismissed the application; 1.6 The appellant was thereby denied his fundamental right to be heard.” Ground 2 goes to the merits of the decision. As Mr Mullally correctly conceded, it would be unnecessary to decide ground 2 of the grounds of appeal if the Full Bench found for the appellant on ground 1. “ORDERS SOUGHT ON APPEAL (AS AMENDED) 3 That the Appeal be upheld. 4 That the decision of the Commission made 27 March 2003 in application number 255 of 2003 be suspended and the matter be referred back to a single Senior Commissioner for hearing and determination according to law and according to the reasons for decision of the Full Bench.” S.27(1)(d) 5 The appellant appeared by an industrial agent. There was no appearance by or on behalf of the respondent. The Full Bench was satisfied that the respondent had been duly served with notice of the hearing of the appeal (ie) notice of proceedings, and proceeded to hear and determine the matter in the absence of the respondent, pursuant to the power conferred by s.27(1)(d). BACKGROUND 6 The above-named appellant, Jose Rodriguez, (hereinafter called Mr Rodriguez) alleged that he was an employee who was dismissed from his employment by the above-named respondent employer on 18 December 2002. 7 On 28 February 2003, Mr Rodriguez filed an application to the Commission, pursuant to s.29(1)(b)(i) of the Act, by which he claimed that he was harshly, oppressively or unfairly dismissed and claiming an order for compensation. He made no claim for reinstatement. That application was opposed. 8 S.29(2) of the Act requires that a referral by an employee under s.29(1)(b)(i) must be made not later than 28 days after the day on which the employee’s employment is terminated, but subject to s.29(3). The date of termination of employment was alleged to be 18 December 2002. 9 S.29(3) provides that the Commission may accept a referral by an employee under s.29(1)(b)(i) that is out of time if the Commission considers that it would be unfair not to do so. 10 The application, as originally made, seems also to be an application seeking an extension of time within which to make the claim (see page 16 (AB)). The grounds of that application are as follows:- “1. The applicant is not familiar with his rights and English is not his first language. 2. At the date of dismissal his boss told the applicant that he should accept the situation. 3. A (sic) the date of dismissal he was required to sign a document agreeing to keep everything confidential. 4. The applicant therefore felt constrained to not seek any advice. 5. After being unemployed for 8 weeks he decided to seek advice and has now appointed Workclaims Australia to act for him. He signed his Form 27 on the 18th February 2003.” 11 An answer and counterproposal was filed on behalf of the respondent on 6 March 2003, which does not comply with the Industrial Relations Commission Regulations 1985 (as amended) but nonetheless opposes the application. 12 The matter came on for hearing by the Commission, on its own motion, on 27 March 2003, for the Commission to hear and determine why it would be unfair not to accept the application out of time. Mr Mullally, industrial agent, appeared for Mr Rodriguez and Mr Parks, the managing director, represented the respondent. Submissions were made on behalf of the appellant, at first instance, by Mr Mullally. Submissions were made by Mr Parks who advised that much of what was being said was not in issue. The Commissioner at first instance therefore went on to dismiss the application. BACKGROUND 13 On 28 February 2003, the above-named appellant, by his agent, filed an application in the Commission alleging that he had been unfairly dismissed from his employment by the respondent, on 18 December 2002. The basis of the claim was that he had suffered an injury to his elbow at work. He was a machinist by occupation. Further, it was said that the evidence would be that he was medically assessed as fit to do light duties only instead of his normal machinist duties. He alleged that he was dismissed, (not retrenched for redundancy), because he was unfit to perform those duties although he had apparently recovered for the most part. It should be said that the answer (see AB 17-21), which has with it, contrary to the rules, a copy of a letter, dated 5 March 2003, seems to say that the application was opposed because the applicant had agreed to a “voluntary redundancy”, on terms set out in that letter. 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1397 14 The application under s.29(1)(b)(i) claiming unfair dismissal, was filed some 44 days after the date of the alleged dismissal. The basis of the application appears above and appears in the appeal book at (AB 16). THE HEARING 15 At the hearing at first instance to determine the question of extension of time within which the Commission might accept the refusal of the claim, if it deemed it fair to do so, Mr Mullally representing the appellant, referred to Mr Rodriguez’ case, that was that he was injured on 18 September 2002; and that because of the appellant’s condition, even though he was improving, he was dismissed from employment by his supervisor, Mr Tony Baxter. The case was, too, that his dismissal was as Mr Baxter told him, to be described as a redundancy. Further, he was told by Mr Baxter, and this would be his evidence it was said, that he would have to sign a document to that effect. In fact he did sign the document and received monies pursuant to it. 16 At (AB 24-26), Mr Mullally outlined the evidence which his client would give to the Commission. The reasons for the delay in filing the application were that canvassed by Mr Mullally (AB 26-27). 17 Mr Mullally then also informed the Commission that he proposed to call the applicant. Then in reply the Senior Commissioner said that he had not anticipated that Mr Rodriguez would be called. Mr Mullally said:- MR MULLALLY: “Well, I’m in your hands, sir. I - - ultimately you have to make a judgment and perhaps it could be done by submissions. I’m happy for it to be done on that basis but I — BEECH SC: Yes, I see. All right. MR MULLALLY: Perhaps it may be a case where having heard from the respondent we then decide what -— BEECH SC: Yes, all right. Thank you, Mr Mullally. Mr Parks, it would seem to me that if Parks Industries Pty Ltd is going to disagree with- - - is going to disagree with what Mr Mullally has said, that in fairness I ought to allow Mr Rodriguez to give evidence so that I can at least give him the opportunity to say it in his own words and give you an opportunity to cross-examine him. So if I do that I’ll ask him to give evidence and you will have the opportunity to give your evidence in reply. Does that cause you any difficulty if I do it that way? MR PARKS: Well, what if I agree with what he says? BEECH SC: Then there’s no need because what Mr Rodriguez would say is not in dispute. I had assumed it was in dispute because of the answer that’s been filed.” 18 Mr Parks then said quite clearly that he, Mr Parks, had the voluntary redundancy agreement and Mr Rodriguez signed it “so I’ve got nothing else to add”. 19 It is to be noted that Mr Mullally’s submission was that, if Mr Rodriguez’ evidence was taken as “a prima facie case”, he did make out a very clear case of unfair dismissal. Also, on the face of it given that his first language is not English he has and had a handicap in the matter. 20 Mr Mullally also canvassed the evidence at (AB 26) which would be given to explain the delay in the filing of the application.. The Commissioner at (AB 28) advised the parties that he was not certain that the matter could be dealt with without calling evidence. 21 Mr Mullally went on to submit that it would be demonstrated that the agreement was neither “ voluntary or a redundancy”. That, of course, was in direct conflict with what Mr Park’s case was. Mr Mullally’s submissions related to the evidence which would be given including evidence relating to the reason for the application being filed 44 days late. Mr Parks submitted that the prejudice to the respondent if the claim were “to go forward”, was that “I’ve done everything legally and within my rights and waited too long for a response”. Mr Parks also submitted that to grant an extension of time would “open the floodgates to everyone employed for the last 15 years to come forth”. For the applicant it was submitted that no prejudice would be suffered by the respondent company. The Senior Commissioner then said that he would stand the matter down for five or ten minutes and go through the notes which he had made. 22 The Senior Commissioner then said:- “It would seem to me that the issue is this: If I am able to decide the matter on the basis of Mr Mullally’s submissions, then there may be no need for Mr Rodriguez to give evidence this morning in support of those submissions. If, however, I reach the conclusion that some of the issues that Mr Mullally raises are matters that I ought hear from Mr Rodriguez on before deciding the matter, then I will ask Mr Rodriguez to give evidence briefly and allow him to be cross-examined.” 23 Having stood the matter down, the Senior Commissioner returned and dismissed the matter. 24 The Commission decided the matter on the basis that, if Mr Rodriguez had given evidence, the evidence would have been as Mr Mullally had outlined it to the Commission. 25 The reasons for the decision to dismiss the application, summarised, are as follows:- (1) That whilst the appellant found the termination of his employment disturbing and even frightening, and further, was concerned that he did not get a copy of the voluntary redundancy agreement which he had signed and which he had been persuaded not to discuss with anyone, he was unable to accept that Mr Rodriguez was as disturbed as he suggested. (It is difficult to understand how such a finding could be made without hearing Mr Rodriguez). (2) (a) That the Commission was persuaded that Mr Rodriguez decided to pursue the claim of unfair dismissal more because he had been unemployed for eight weeks than because of the merit of the claim. (b) In that regard the Commissioner placed weight on the fact that the appellant sought only compensation and not reinstatement. (c) That the Commission was not satisfied that there was an acceptable explanation for the delay. (3) As to the merit of the application, (a) Mr Rodriguez returned to work in October 2002 after his injury of 18 September 2002. (b) It was not apparent from those dates that Mr Rodriguez was not able to do his job properly. (c) The statement by Mr Parks that there was a need to reduce the workforce in the quiet period leading up to Christmas was quite plausible. (d) Mr Rodriguez’ suggestion that he was dismissed because of his injury was equally matched by the evidence of the company that there was a need to reduce the size of the workforce. (This finding of course, demonstrates part of the conflicting evidence between the parties). 1398 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. (e) On its face, the voluntary redundancy agreement was one that he could have refused to sign and Mr Rodriguez faced the task of having to persuade the Commission that the document was incorrect or that there was some other reason why he put it to one side. (f) The first that the respondent knew of the appellant contesting the dismissal was when the application was lodged and served, namely, two and a half months after the dismissal. (g) There was a prejudice to the respondent in having to defend a claim where, even accepting the evidence that Mr Rodriguez would give, the merit was not substantial. 26 Generally speaking, in this Commission, as has many times been stated, the Commission is entitled to act upon the assertions of advocates from the bar table even though such assertions are not made on oath, or even if the advocate might not have been competent as a witness according to the ordinary rules of evidence, to make them. If the correctness of these assertions is challenged however, it would at least be imprudent on the part of a Commissioner not to further examine the matter so as to satisfy her/himself of the actual facts, if need be, by evidence formally given. (See The Queen v The Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Melbourne and Metropolitan Tramways Board [1965] 113 CLR 228 at 243 per Barwick C J.) Further, as Menzies J said in the same case at page 252:- “An arbitrator would, no doubt, usually refuse to act merely upon the representations of parties made before him if there were a genuine dispute about the relevant facts, but it is a far cry from such a rule of fairness and prudence to an insistence that there cannot be arbitration within the meaning of s.51(xxxv) of the Constitution unless the arbitrator hears and decides upon sufficient evidentiary material submitted to him by the parties.” 27 As Kirby J said, too, in Coal and Allied Operations v Australian Industrial Relations Commission (2000) 74 ALJR 1348 at 1360:- “It seems clear from the passage which I have cited that Giudice J’s conception of the “supervisory” role of the Full Bench was such that he felt that it authorised him to consider whether or not as a member of the Full Bench he was “satisfied” of the conclusions to which Boulton J had come on the basis of the same evidentiary material. I say evidentiary material because, as is the case in many tribunals (and as has long been the case in the Commission and its predecessors), decisions are made on materials that could not be described as “evidence” strictly so called. The entitlement of the Commission to act in reliance on such materials, at least in given circumstances, has been acknowledged by this court.” 28 His Honour cited, inter alias, the Tramways Case (op cit) and The Queen v Williams; ex parte Australian Building Construction Employees’ and Builders Labourers Federation (1982) 153 CLR 402 at 411. NATURAL JUSTICE OR PROCEDURAL FAIRNESS DENIED? 29 This Commission is bound by the rules of natural justice or procedural fairness. (See Hocks v Ken and Faye Davies t/a Kembla Built-In Furniture (1987) 67 WAIG 1527 (FB), RRIA v AMWSU and Others (1986) 66 WAIG 1553 (IAC), RRIA v AMWSU and Others (1990) 70 WAIG 2083 (IAC); DeVos and Minit Australia Pty Ltd (2003) 83 WAIG 219 at 222-4). 30 As a manifestation of the duty to afford procedural fairness or natural justice, the following are some of the relevant principles which apply. (See DeVos and Minit Australia Pty Ltd (op cit) and the cases cited therein as well as the cases referred to hereunder):- (1) The Commission is required to afford parties a reasonable opportunity to present their cases. (2) There is no obligation on the Commission to ensure that the parties take advantage of that opportunity or to make the case for a party. (3) A tribunal should not proceed while relying on the parties to assert their rights where to do so would deny the parties the opportunity to be heard. (4) (a) However, whilst this Commission normally proceeds by way of oral hearings, in contested matters, it does not and does not need to do so where there is no question of credibility, or no contested issues of fact or where facts are agreed or admitted, or where such a course is agreed by the parties, or where the Commission in the proper exercise of its discretion under s.27, directs otherwise. (S.26(1)(a) is not present for mere effect). (b) For example, in this Commission, assertions from the bar table are often and can be accepted as evidence within the principles which I have set out above. (5) An oral hearing is necessary in my opinion, in this Commission:- (a) Wherever there is a conflict of evidence. (See Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 516 per Aickin J. See also, The Queen v The Commonwealth Conciliation and Arbitration Commission and Others; Ex parte The Melbourne and Metropolitan Tramways Board (op cit)). (b) Where persons are unable to express themselves in writing and may not have access to assistance to enable that to occur. (See Chen Zhen Zi v Minister for Immigration and Ethnic Affairs and Others (1994) 121 ALR 83 (FCFC) and see also Jeffs v New Zealand Dairy Production and Marketing Board [1966] 3 ALL ER 863 (PC). (c) Where personal characteristics are at issue. (See for example Exell v Harris (1983) 51 ALR 137 per Neaves J (a promotion appeal)). (d) Where the allegations are grave. (See Finch v Goldstein (1981) 36 ALR 287 per Ellicott J at 304 and Ansell v Wells (1982) 43 ALR 41 per Davies J at page 52. (6) What I have said does affect the use of documents, concessions, admissions, affidavits and written evidence of all types in the Commission. I am referring to the use of oral evidence and the right to be heard orally as an element of the affording of procedural fairness. In other words, the hearing of oral evidence in the context of what I have said in these reasons, is not always an essential element of the proper affording of procedural fairness. CONCLUSIONS 31 In this case there were direct and fundamental conflicts of evidence foreshadowed and a direct collision between the parties concerning the fundamental issue of whether there was a voluntary redundancy or a dismissal of the employee by the employer. This issue itself could not be resolved as the Commission did by making findings of credibility without seeing the witnesses under examination or cross-examination, on oral submissions on behalf of the parties from the bar table. Indeed, to do so was contrary to the authority which I have cited above. In this case, there was a genuine dispute about the relevant facts 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1399 which could only be properly resolved by the parties being given the opportunity to adduce oral evidence in the case after the applicant, as his agent foreshadowed, gave his evidence. No positive finding could be made on the evidence before the Commission merely as it was foreshadowed from the bar table. Given the significance of the strength or otherwise of the appellant’s case and of the explanation for the delay and the divergence between the cases of the two parties, the conflict could only be resolved on the authorities which I have cited above, by giving the parties the opportunity to call oral evidence. Thus, having heard and seen the witnesses, the Commission could make whatever findings the Commission decided that it should make. As it was, findings were made which assessed matters based on the mere plausibility of assertions of fact from the bar table instead of evidence on oath or affirmation subject to cross-examination. Those findings, which required oral evidence to be properly made, were those outlined by me above in paragraph 25 (1), (2) and (3). Such findings could not be made without hearing the witnesses, seeing the witnesses and assessing their credibility and in the light of that advantage. 32 Inferences from conflicting facts, not the subject of oral evidence, could not correctly be made in this case and could not be made in a procedurally fair manner, in the circumstances of the case. 33 This was a clear case where the denial of the right to call oral evidence as it was intended to do so, occasioned clear procedural unfairness to Mr Rodriguez. 34 On a fair reading of the transcript of proceedings too, there was no agreement by Mr Mullally to any other course. 35 I find for those reasons that the appellant was not afforded procedural fairness or natural justice. The principle in Stead v SGIC (1986) 161 CLR 141 36 Of course, the matter does not end there. The appellant is not entitled to relief unless he establishes that by the denial of natural justice or procedural fairness he has been deprived of the possibility of a successful outcome. To negate that possibility, it would be necessary for the Full Bench to find that a properly conducted trial could not possibly have produced a different result. Such a finding was not open to be made. In this case, it was abundantly clear that a hearing on the oral evidence was necessary to resolve questions of credibility and conflict in evidence and might have produced a different result had such a hearing taken place, with the Commission seeing and hearing the witnesses. It is not certain but there was some indication that there might have been more witnesses called for the appellant than Mr Rodriguez himself. For those reasons I was of the opinion and would find that, within the meaning of the principle in Stead v SGIC (op cit), this Full Bench would not be able to find that a properly conducted hearing could not possibly, on the oral evidence, have produced a different result than the result which was achieved at first instance. FINALLY 37 I would add that in deciding the question of extension of time, the Commission at first instance might derive some assistance from the discussion of extension of time in relation to other limitation periods such as are reported in cases like Brisbane South Regional Health Authority v Taylor (1996-1997) 186 CLR 541 and Girando and another v Girando (1997) 18 WAR 450 (FC). See also, Baker v Shire of Albany (1994) 14 WAR 46 (FC) and Clayton v Aust (1993) 9 WAR 364 (FC). 38 Finally, for those reasons, I concluded that the appellant was not afforded procedural fairness. Therefore, I joined my colleagues in upholding the appeal and making the orders which the Full Bench made in this matter. COMMISSIONER S J KENNER— 39 I have had the benefit of reading in draft form, the reasons for decision of the President. I am in general agreement with those reasons and add the following brief observations of my own. 40 It would seem that there would only be limited circumstances arising where the Commission would determine whether to exercise its discretion pursuant to s 29(3) of the Industrial Relations Act 1979 (“the Act”), to extend time for the referral to the Commission of an application alleging harsh, oppressive or unfair dismissal, without the need to hear evidence on matters in issue. 41 A first circumstance could be where there are admissions by an applicant, on all relevant issues to be determined. A second circumstance would seem to be where there is common ground between the parties on the relevant factors to consider, by way for example, of an agreed statement of facts with the Commission being requested to determine the application, based on those agreed facts. 42 In the case at first instance, the Commissioner, in effectively precluding the appellant from giving oral evidence, which, from a fair reading of the transcript, he clearly wished to do, denied the appellant natural justice in the circumstances of the case given the conflict on the facts. In my opinion, this denial did deprive the appellant of the possibility of a successful outcome: Stead v SGIC (1986) 161 CLR 141. 43 It was for these reasons that I considered that the appeal should be upheld and the matter remitted to the Commission at first instance, for further hearing and determination. COMMISSIONER S WOOD— 44 I have read the reasons for decision of His Honour the President. I agree with those reasons and have nothing to add. THE PRESIDENT— 45 For those reasons, the Full Bench upheld the appeal. The operation of the decision at first instance is suspended and the matter remitted to the Commission at first instance to be heard and determined according to law and the reasons of the Full Bench herein. _________ 2003 WAIRC 08376 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES JOSE RODRIGUEZ, APPELLANT - and - PARKS INDUSTRIES PTY LTD, RESPONDENT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY COMMISSIONER S J KENNER COMMISSIONER S WOOD DELIVERED FRIDAY, 23 MAY 2003 FILE NO/S. FBA 6 OF 2003 CITATION NO. 2003 WAIRC 08376 1400 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. _________________________________________________________________________________________________________ Decision Appeal upheld, order at first instance suspended and matter remitted to the Commission Appearances Appellant Mr P E Mullally, as agent Respondent No appearance _________________________________________________________________________________________________________ Order This matter having come on for hearing before the Full Bench on the 23rd day of May 2003, and having heard Mr P E Mullally, as agent, on behalf of the appellant, and there being no appearance by or on behalf of the respondent, and the Full Bench having determined that the appeal should be upheld, and that reasons for decision will issue at a future date, and the applicant herein having waived its rights pursuant to s.35 of the Industrial Relations Act 1979 (as amended), it is this day, the 23rd day of May 2003, ordered as follows:- (1) THAT appeal No. FBA 6 of 2003 be and is hereby upheld. (2) THAT the decision of the Commission made at first instance in matter No. 255 of 2003 given on the 28th day of March 2003 be and is hereby suspended and the matter be and is hereby remitted to the Commission at first instance to be heard and determined according to law and the reasons of the Full Bench herein. By the Full Bench (Sgd.) P. J. SHARKEY, [L.S.] President. FULL BENCH—Unions—Application for Alteration of Rules— 2003 WAIRC 08430 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES IN THE MATTER OF AN APPLICATION BY THE UNITED FIREFIGHTERS UNION OF WESTERN AUSTRALIA PURSUANT TO S.62(2) OF THE INDUSTRIAL RELATIONS ACT 1979, APPLICANT CORAM FULL BENCH HIS HONOUR THE PRESIDENT P J SHARKEY COMMISSIONER P E SCOTT COMMISSIONER J L HARRISON DELIVERED TUESDAY, 3 JUNE 2003 FILE NO/S. FBM 1 OF 2003 CITATION NO. 2003 WAIRC 08430 _________________________________________________________________________________________________________ Decision Application dismissed Appearances Applicant Mr R J Walker, Industrial Officer, and with him Mr A E Drewett, Secretary of the United Firefighters Union of Western Australia _________________________________________________________________________________________________________ Reasons for Decision THE PRESIDENT— INTRODUCTION 1 This is an application by the United Firefighters Union of Western Australia for the alteration of its rules pursuant to s.62(2) of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”). 2 That body is an “organisation” as that term is defined in s.7 of the Act, which means that it is registered as an organisation under the Act. 3 The application is an application to alter the rules of the above-mentioned organisation and is made pursuant to s.62(2) of the Act, which gives jurisdiction to the Full Bench to authorise the Registrar to register any alteration of the rules of an organisation which relates to its name, the qualification of persons for membership or a matter referred to in s.71(2) or (5) of the Act. Otherwise, the Registrar is prohibited from registering such an alteration to the rules. 4 The application herein was filed on 27 March 2003 and bears the common seal of the applicant organisation and the signature of its secretary. 5 The application seeks the amendment of rule 5 – Eligibility, and, in particular, rule 5(e)(14)(b) so that it will read as follows:- “(14) Any person employed:- (a) By the Western Australian Bush Fires Board; or (b) As storeman, store officer, general assistant and technical officer by the Western Australian Fire Brigades Board.” 83 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1401 That means that the existing exclusion from membership of communications officers, trainee communications officers and communications supervisors (I will refer to all three occupations hereinafter as communications officers) presently expressed in rule 5(e)(14)(b) will not exist and those officers will, if this application is granted, be eligible for membership of the applicant organisation. 6 Particulars of the amendments appear also in the notice of the application dated 1 April 2003 contained in the Western Australian Industrial Gazette ((2003) 83 WAIG 1072) published on 23 April 2003. 7 Regulations 98(1) and (3) of the Industrial Relations Commission Regulations 1985 have been complied with. 8 Rule 40 is the alteration of rules rule of the applicant organisation, and that reads as follows:- “(1) No amendment, repeal or alteration of the Rules of the Union shall be made unless the amendment, repeal or alteration has been passed and approved by a vote of the majority of Members of the Union present in person at a general meeting of the Union specially called for that purpose, of which fourteen (14) days previous notice specifying the time, place and objects of the meeting has been given by publishing a copy of a notice thereof in a newspaper circulating generally in the district in which the office of the Union is situated, by posting a copy of the notice in a conspicuous place outside that office and by posting a copy of the notice at all places of work. (2) The Secretary shall publicise any Rule change adopted by a general meeting of the Union, the reasons therefore and that the Members or any of them can object to the proposed alteration by forwarding a written objection to the Registrar within 14 days after the date of resolution by written notices thereof being displayed and made available to the Members at the registered office of the Union and at all places of work and in other ways likely to come to the attention of Members. (3) Notwithstanding anything contained in this Rule where the Branch is required by law to amend its Rules such amendment when endorsed by a simple majority of the Committee of Management shall be deemed to have been made in compliance with the procedural requirements of this Rule.” 9 By virtue of s.62(4) of the Act, s.55, 56 and 58(3) apply with such modifications as are necessary to and in relation to an application by an organisation for alteration of a rule of a kind referred to in s.62(2) and referred to by me above. BACKGROUND, ISSUES AND CONCLUSIONS 10 Following the requirement of s.55(1) & (2) of the Act, namely that a notice of the application and a copy of the rules of the organisation as they relate to the qualification of persons for membership, etc, and a notice that persons may object within the time and in the manner prescribed, was published in the Western Australian Industrial Gazette on 23 April 2003, more than 30 days before the hearing of this matter which took place on 26 May 2003. 11 The Full Bench is required to refuse an application such as this, unless it is satisfied as to a number of matters (see s.55 of the Act). That requirement is a mandatory requirement (see s.56 of the Interpretation Act 1984 (as amended)). 12 First of all, it is necessary to look at the evidence:- (a) There is a statutory declaration of the secretary of the applicant, Mr Anthony Edward Drewett, filed herein and declared on 27 March 2003. (b) The alteration to the rules sought in this matter has been approved in relation to its rules by the related federal organisation, the United Firefighters Union of Australia. 13 The proposed alteration to the rules, the subject of this application, was to be dealt with by a meeting of the applicant in August 2002, but that meeting was unable to take place because there was a lack of the quorum prescribed by the rules. 14 At a meeting which was quorate according to the rules of the organisation ((ie) an annual general meeting held on 26 February 2003), the meeting resolved to approve the alteration and authorised an application to this Commission for the alterations to be registered. The minutes of the meeting are annexed to Mr Drewett’s declaration. 15 I am satisfied from Mr Walker’s evidence from the bar table that the resolution approving the proposed alteration was carried by the majority of the financial members present and voting as the rules require. S.55, s.56 and s.62(4) Requirements 16 Further, the following actions were taken by Mr Drewett according to his evidence to have the proposed variation to the rules dealt with in accordance with the rules of the applicant and in accordance with s.62 of the Act:- (a) A notice was published in “The West Australian” newspaper on 24 January 2003, advertising the time and date of the annual general meeting. Included in the advertisement is notice of the proposed rule change and the purpose for the rule change. (b) In accordance with rule 14, general meetings and special general meetings, a notice giving at least 14 days notice stating the date, time, place and the business to be transacted at the annual general meeting (including the proposed rule change) was faxed to each workplace on 10 February 2003 (see attachment 12 to Mr Drewett’s declaration). (c) Mr Drewett’s evidence is that the practice of the union is for all union faxes to be placed on workplace notice boards. All notices are also posted on the notice board at the front of the union office. (d) On 13 February 2003, a notice advising a change of venue for the annual general meeting was faxed to all workplaces (see attachment 13). (e) A reminder notice of the annual general meeting was faxed to all workplaces on 19 February 2003. (f) The annual general meeting held on 26 February 2003 resolved to endorse the proposed amendments and did so. (g) Minutes of the meeting were posted to each workplace and subsequently placed on each workplace union notice board. (h) In accordance with rule 40, the acting secretary, Mr John Walker, faxed a notice to each workplace publicising the rule change adopted by the annual general meeting, the reason for the change, and also advising that members could object to the proposed alteration by forwarding a written objection to the Registrar at the Western Australian Industrial Relations Commission within 14 days. That document, which is attachment 16, is dated 4 March 2003 and is marked “faxed” and contains what it is said to contain. (i) The applicant’s committee of management meeting on 13 March 2003 noted the mail out of the annual general meeting minutes and resolved that the secretary be authorised to “progress” the proposed rule change in the Commission. 1402 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 83 W.A.I.G. (j) It was Mr Drewett’s evidence that the applicant has a process of faxing notices and circulars to all workplaces. To ensure all financial members at that workplace have access to the union’s notices and information, the long established practice is for the first person receiving a union fax to place the material on the union’s notice board. Copies of the faxed notices/circulars are also posted out to each workplace with the minutes of the previous committee of management meeting. The process has worked well over a long time and ensures that all financial members are kept informed of union information. Each shift coming onto duty checks the notice board for updated or new information from the union. 17 I accept that evidence. 18 There were no objections to the alterations filed in the Commission, or otherwise notified. 19 The rules provide for the alteration of the rules by reasonable notice, insofar as it is necessary to so find. 20 The rules of the organisation relating to elections for office provide for election by secret ballot in conformity with s.56(1) of the Act, again insofar as it is necessary to so find. 21 Reasonable steps have been taken to adequately inform the members of the intention of the organisation to apply for registration of the proposed alterations to the rules of the organisation and that the members or any of them may object to the making of the application or to those rules or any of them by forwarding a written objection to the Registrar on Mr Drewett’s above evidence, which I accept. 22 Having regard to the structure of the organisation and any other relevant circumstance, the members have been afforded a reasonable opportunity to make such an objection. 23 Because none have objected, less than 5% have certainly objected. No-one has objected to this application. 24 It is also a fact, on the undisputed evidence, that both the applicant and the Civil Service Association of Western Australia (Incorporated) (hereinafter referred to as “the CSA”), another organisation of employees, registered under the Act, that an agreement has been reached as to coverage by the applicant of communications officers. 25 There is correspondence forming part of exhibit 1 herein which is evidence of the fact that the occupation of communications officers as described in rule 5(e)(14)(b) currently, now sought to be a grounds of eligibility for membership of the applicant rather than being excluded from coverage by the applicant organisation, was formerly an occupation which made employees eligible for membership of the applicant. That is before more recently persons were excluded from membership of the applicant and were eligible for membership of the CSA only. According to the correspondence, as I find, the applicant should have cov