WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT Coram: BRINSDEN J. (President), KENNEDY & ROWLAND JJ. Appeal No. 15 of 1989. Between The Western Australian Government Railways Commission, Appellant and The Australian Railways Union, Western Australian Branch, Respondent. Delivered: 30th day of March 1990. Catchwords: Industrial Arbitration — termination of employment — no question of discipline or misconduct — section 23(3)(d) of Industrial Arbitration Act 1970 — whether Commission had jurisdiction to deal with application for reinstatement — effect of subsections 73 and 77 of Government Railways Act 1904 considered. Mr R.E. Cock (instructed by the State Crown Solicitor) appeared for the appellant. Mr R.L. Le Miere (instructed by Messrs Dwyer Durack) and Mr A.M. Dzeiciol (as agent) appeared for the respondent. Cases referred to in Judgment. Pomykala v. Railways Appeal Board (1952) 54 WALR 9; R v. Railways Appeal Board; ex parte Harran (1969) WAR 13; Wall v. Commissioner of Railways (1905), 7 WALR206. Cases also Cited. R. v. Railways Appeal Board ex parte Warrilow Supreme Court of Western Australia (Full Court) unreported; No. 2577; 20 April 1979. BRINSDEN J. In this appeal the appellant will be called "Westrail" throughout. The appeal raises an important question of law and that is why this Court decided to hear the appeal even though it now seems, so far as the individual is concerned, the point has become moot. Only one appeal is mounted though there could have been two. The two matters came before the Commission in each case by way of a section 44 conference and a question of jurisdiction was raised at first instance. The two former employees of the Railway Commission claimed that they had been unfairly dismissed. It was however agreed before the Commission that there were contracts of employment between them and Westrail. Each contract contained a term limiting it to the completion of certain work. The estimated date of completion was made known to each employee prior to the acceptance of the respective contracts. Each of them was given notice of the impending end of the contracts, termination in each case occurring after the originally estimated time of the contract. There was, as the Commission found, and it no longer became a subject of dispute, that no question of discipline or misconduct was involved in either termination. The question was whether, by virtue of section 23(3)(d) of the Industrial Relations Act 1979 as amended (the Act), the Commission had jurisdiction and indeed power to deal with the applications. On the jurisdictional question Westrail acknowledged before the Commission at the first instance that the terminated contracts of employment were "industrial matters" for the purposes of the Act. However, it submitted that the Commission was precluded from exercising any power of regulation by the provisions of section 23(3Xd). The Commission at first instance held that it had jurisdic- tion to deal with the claim. From that decision Westrail appealed to the Full Bench which dismissed the appeal. It now appeals to this Court against that dismissal. The provisions of section 23(3)(d) of the Act are as follows: (3) The Commission in the exercise of the jurisdiction conferred on it by this Part shall not— (d) regulate the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind. The other relevant Act involved in this appeal is the Government Railways Act 1904 as amended ("the Railways Act") and then, only two sections need be considered, sections 73 and 77. Both these sections have been considered by Jackson J. as he then was in R. v. Railways Appeal Board; ex parte Harran (1969) WAR13 at 16 when he said: The right of appeal conferred on a permanent railway employee and the jurisdiction of the Appeal Board is to be found in section 77 of the Act, which provides so far as is material: "Any person who, being permanently employed on a Government railway, is under section 73 of this Act, — (1) fined; or (2) reduced to a lower class or grade; or (3) dismissed; or (4) suspended from employment in such circumstances as to involve loss of pay; or (5) transferred by way of punishment involving loss of transfer expenses, may, in the prescribed manner, appeal to an Appeal Board constituted as hereinafter provided ..." Section 73 to which reference is made in section 77 provides by subsection (1): "The Commission may appoint, suspend, dismiss, fine, transfer without payment of transfer expenses, or reduce to a lower class or grade, any officer or servant of the Department...", and then follows a right of delegation of these powers. Section 73(1) appears to confer on the Commission the normal right as an employer of "hiring and firing" by the words "appoint" and "dismiss". But it goes further in allowing the Commission to suspend, fine, transfer without paying expenses, or reduce in class or grade any employee. The occasion for the exercise of these latter powers would usually be when an employee has been guilty of some act or omission in the nature of misconduct and it is desired to impose a penalty on him. But the penalty may be dismissal. Hence the verb "dismiss" in section 73(1) covers not only the termination of an employee's services when these are no longer needed, but also a dismissal, with or without notice, for misconduct. But the right of appeal only extends to the latter type of dismissal, according to the decision of this Court in Wall v. Commissioner of Railways (1905), 7 WALR206. The decision was given only one year after the principal Act was passed. The Court (Stone, C.J., Parker and Bumside, JJ) distinguished between a dismissal of an employee in the ordinary course of the economic management of the railway, and dismissal by way of punishment or for misconduct (S tone, C J.) or dismissal for an offence (Burnside, J.). This decision was followed without being questioned in the later decision of this Court in Pomykala v. Railways Appeal Board (1952) 54 WALR9:;. 12! 70 W.A.I.G. Westrail does not challenge the decisions in the above three cases. It accepts that section 77 does not provide a right of appeal for an employee who is, or was, a permanent employee as understood in section 77 (i.e. one who has been continuously employed for three months) who has been dismissed otherwise than by way of punishment. Both the employees in this case were dismissed otherwise than by way of punishment. It contends that it is not to point to assess in the case of a specific ex-employee whether the Railways Act gave him a right of appeal in his peculiar circumstances. The policy of section 23(3)(d) is that if another Act deals with dismissals and also with appeals from such dismissals, then it is to be assumed that that Act has covered the field and that the Industrial Relations Commission may not deal with any such matters. In the case of an employee, where the Act provides for his termination, but not for an appeal against such termination, it is to be assumed the legislature intended that there be no review of such termination. That view is said to be reinforced by the words appearing in section 23(3)(d) "in a matter of that kind". Where the provisions of section 23(3)(d) intended not to restrict access to the Commission in such a case, the words "in a matter of that kind" would have been deleted and replaced with words to the effect of "in relation to that employee or class of employees". Westrail accepts that such an argument would have the result that if section 77 of the Railways Act permitted an appeal only in one case such as, for example, a fine, section 23(3)(d) of the Act would still prevent the Commission regulating any of the matters referred to in it. On the other hand, the respondent argues that if the other Act provides for the termination of an employee or any one of a class of employees, but does not provide for an appeal in respect of such termination, then the jurisdiction of the Commission to regulate the termination of such an employee is not ousted. In the particular case here, there is a provision in the Railways Act dealing with termination: section 73, but there is no provision for an appeal in respect of such termination (otherwise than for misconduct) in section 77. The respondent's argument also results in something of an absurdity because the Commission would have un- fettered powers to regulate in the terms of section 23(3)(d) in respect of an employee not permanently employed within the meaning of section 77, but has only limited jurisdiction in respect of an employee permanently employed, that jurisdiction being limited to termination of the services of such an employee otherwise than for misconduct. Where there are only two possible constructions of a provision of an Act, and both are less than perfect, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction which would not promote that purpose or object: Interpretation Act 1984 section 18.1 am afraid I am not able to resolve the construction of the section by resort to the objects of the Act as I do not see that either construction is less or more likely to promote the objects than the other. Nor am I able to find much guidance from any other section or subsection of the Act. Perhaps section 23(1 )(a) affords slight assistance since that provision gives to the Commission authority to enquire into and deal with any industrial matter except inter alia the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any person as an officer or employee in either House of Parliament. There it is clear that termination of employment of such an officer is beyond the jurisdiction of the Commission. One would have expected therefore that section 23(3)(d) would have been drawn equally clearly if it had been the intention of the draftsmen that termination of an employee's services under any other Act would be excluded merely because the other Act contains a provision, however expressed, for or in relation to, say, the suspension from duty of an employee and there is a provision in the same Act, however expressed, for an appeal in relation to a suspension from duty. I am therefore led to construe the subsection by finding the jurisdiction of the Commission only excluded if the other Act deals both with a provision for one of the matters expressed in the subsection and also provides for an appeal in respect of such a matter. In other words, I would need to find in the other Act not only a provision for termination of an employee as contained in section 73, but also for an appeal in respect of such termination. As there is no such provision in section 77 in my view the jurisdiction of the Commission has not been ousted to regulate such termination. I would therefore dismiss the appeal. KENNEDY, J. This appeal raises one issue only. It is whether the Industrial Relations Commission has jurisdiction to regulate the employment of a former employee of the appellant whose services have been terminated by it. The respondent contends that the Commission has jurisdiction under section 23(1) of the Industrial Relations Act 1979, which provides that, subject to the Act, the Commission has cognizance of and authority to inquire into and deal with any industrial matter. The expression "industrial matter" is defined widely in section 7 of the Act. The appellant also contends that the Commission is not deprived of jurisdiction by section 23(3)(d) of the Act. which is in the following terms: The Commission in the exercise of the jurisdiction conferred on it by this Part shall not— (a) ... (b) ... (c) ... (d) regulate the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to any matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind; It is implicit that, were it not for the exclusion in subsection (3)(d), the matters therein set out would necessarily constitute "industrial matters", and would therefore be within the jurisdiction of the Commission. The employee concerned in these proceedings was employed pursuant to section 73(1) of the Government Railways Act 1904. That subsection also empowers the Western Australian Government Railways Commission to suspend, dismiss, fine, transfer without payment, or reduce to a lower class or grade, any officer or servant of the Department. Section 77 of the Act makes provision for appeals by permanent employees in certain events. It provides: Any person who, being permanently employed on a Government Railway, is. under section 73 of this Act, — (1) fined; or (2) reduced to a lower class or grade; or (3) dismissed; or (4) suspended from employment in such circumstances as to involve loss of pay; or (5) transferred by way of punishment involving loss of transfer expenses. may, in the prescribed manner, appeal to an Appeal Board constituted as hereinafter provided, except where the person is the occupant of an office prescribed under section 73 of this Act as one in respect of which the exercise of any of the powers referred to in that section is subject to the Minister, in which case the person shall not have a right of appeal to an Appeal Board so constituted, but the person may in manner prescribed by the regulations appeal to a Stipendiary Magistrate. No person shall be deemed "permanently employed" within the meaning of this section unless he has been continuously employed for three months. It is conceded in the present case that the provisions of section 77 do not apply to the employee, whose services were terminated for the reason that there was no further work available for him. His contract of employment had, in fact, contained a term limiting it to the completion of certain work. He had been given notice of the impending termination of the contract, and termination occurred after the time estimated before he was employed. No question of discipline or misconduct had been involved in the termination. In R v. Railways Appeal Board (1969) WARD, the Full Court held that, although the expression "dismiss" in section 73(1) of the Government Railways Act refers both to termination of employment when the employee is no longer required and to dismissal for misconduct the right of appeal given by section 77 extended only to the latter situation. The same distinction appears to be recognised in section 23(3)(d) of the Industrial Relations Act, which refers not only to "dismissal from" but also to "termination of employment. In my opinion, the Commission did have jurisdiction in this case to "regulate the ... termination of ... employment of the employee concerned. Although the Government Railways Act in section 73(1) does make provision for the termination of employment, as the Full Court has held, there is no provision in the Act "for an appeal in a matter of that kind". The fact that there might be an appeal against an employee's suspension from duty, or from his dismissal, is not to the point. The expression "provision ... for an appeal in a matter of that kind" is, in my view, directed to the relevant event out of those events previously set out in the paragraph, namely, "suspension from duty in", "discipline in", "dismissal from","terminationof...employment" and "reinstatement in ... employment", in this case, termination of employment. Only if there is an appeal under the provisions of some other Act against that event occurring is the power of the Commission restricted. I should, however, add that the fact that the appeal under the Act is limited in some manner would not affect the position, for there would remain, in my view, an appeal "for or in relation to a matter of that kind". In my opinion, this appeal should be dismissed. ROWLAND, J.: I agree with the reasons and decisions of Brinsden and Kennedy JJ. IN THE