WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT. Appeal Nos. 1 and 2 of 1985. In the matter of an appeal from a decision of the Full Bench of the Western Australian Industrial Commission given in matters number 1012 of 1984 and 1071 of 1984, dated 15 February 1985, between the Federated Liquor and Allied Industries Employees' Union of Australia, Western Australian Branch, Union of Workers, First Appellant, and Catholic Homes for the Aged (Inc.) and Others, Second Appellants and the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch, Respondent. Mr C.D. Steyler (instructed by Messrs. Parker and Parker) appeared for the appellants in appeal No. 1 of 1985. Mr J.R. Brooksby (instructed by Messrs. Paterson and Dowding) appeared for the appellants in appeal No. 2 of 1985. Mr P.J. Sharkey (instructed by Messrs. Dwyer, Durack and Dunphy) appeared for the respondents. Wednesday 29 May 1985. Cases referred to in Judgment. Anglican Homes for the Aged v. Hospital Employees' Union 56 WAIG 795. S.E.C. of W.A. Salaried Officers Association (Union of Workers) v. Western Australian Industrial Commis- sion 55 WAIG 747. Cases also cited. A.M.S.W.U. and E.T.U. v. S.E.C. (1979) 59 WAIG 494 at 496. Australian Coal and Shale Employees Federation and Another v. The Commonwealth and Others 94 (1953) CLR621. Da Costa v. Cockburn Salvage and Trading Pty Ltd 124 (1970) CLR192. Edwards v. Noble 125 (1971) CLR296. Gronow v. Gronow 144 (1979) CLR513. Hamersley Iron Pty Ltd v. Association of Draughting, Supervisory and Technical Employees, Western Austra- lian Branch 64 WAIG 852. Helidon Spa Water Co. v. Hamlyn Spa Water Co. 29 (1903) VLR182. Hospital Employees Industrial Union of Workers, W.A. v. Braemar Presbyterian Homes for the Aged and Others 61 WAIG 1763. House v. The King 55 (1936) CLR499. Lovell v. Lovell 81 (1950) CLR513. Parker's Case (1926) 29 WALR 90. Paterson and Another v. Paterson 89 (1953) CLR212. Warren v. Coombes 142 (1979) CLR531. BRINSDEN J.: These appeals are from the decision of the Full Bench of the Commission dismissing appeals to it from the decision of Commissioner Halliwell whereby he issued the Miscellaneous Workers (Hostel Domestics and Supervisors) Award. That award extended exclusive coverage to the respondent, the Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, W.A. Branch (F.M.W.U.) over certain employees to the exclusion of the Federated Liquor and Allied Industries Employees Union of Australia (Western Australian) Branch, Union of Workers (F.L.A.I.U.). The employees, over whom coverage was granted were those engaged by establishments which qualify for payment of a personal care subsidy or other- wise are subsidised under the provisions of the Aged or Disabled Persons, Homes Act 1954 and Amendments (the Federal Act) and provide accommodation and personal care services for frail, aged or handicapped persons or those in approved psychiatric hostels. It will be noted that there are two appeals, the first by the employer respondents to the application of the F.M.W.U. and the second by the F.L.A.I.U., the union which lost coverage of the workers in these institutions. 1080 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 65 W.A.I.G. A preliminary point was taken in respect of Appeal No. 2 in that it had been filed out of time. Section 90 (2) of the Industrial Arbitration Act 1979 and amendments provides for an appeal under that section to this Court to be instituted within 21 days from the date of decision against which the appeal is brought and may be instituted by any part to the proceedings wherein a decision was made and by any other person who was an intervener in those proceedings. The F.L.A.I.U. became an intervener by leave in the original proceedings before Commissioner Halliwell and the same union was an appeEant by leave before the Full Bench. The union concedes that the institution of the appeal was out of time by a few days. There is no power in this Court, it would appear, to extend time. The point taken, however, is academic for the issues to be raised in both appeals are identical. By rule 3 (3) of the regulations of this Court it is provided that as soon as reasonably practicable after filing the notice of appeal, the appellant shall serve a copy thereof on each of the other parties to the decision. The appellants, therefore, in appeal No. 1 were obliged to serve not only the F.M.W.U. but also the intervenor, namely the F.L.A.I.U. In our view the F.L.A.I.U. was entitled to be heard by us on that appeal. We therefore allowed the F.L.A.I.U. to make such submissions as it thought fit in appeal No. 1 and what its counsel sub- mitted to us in that appeal was what counsel would have submitted had we heard appeal No. 2. The displaced award, the Hostel Workers (Aged and Disabled Persons) Award covered persons such as cooks and other domestic workers employed in establishments where residential accommodation and/or catering services were provided for persons who qualified for financial assistance under the Federal Act, other than establishments in which those persons received nursing care from workers employed by or at the direction of the employer. In respect of that award, the F.L.A.I.U. had industrial coverage. The appellants in the first appeal are organisations who employ persons in the establishments of the kind referred to in the award issued by Commissioner Halliwell. The F.M.W.U. is comprised of an amalgamation of unions including the Hospital Employees Industrial Union of Workers and its consti- tutional rule so far as relevant is in these terms: For the purpose of this rule the term "hospital" shall include:— (a) establishments which, by virtue of their occupants, qualify for the payment of a personal care subsidy or are otherwise subsidised under the provisions of the Aged or Disabled Persons Homes Act 1954-74, (b) establishments licenced and subsidised under the provisions of the Mental Health Act. The Constitutional rule of the F.L.A.I.U includes persons employed in "hotels, service flats and/or apart- ment houses, boarding and/or lodging houses". It is I think necessary to commence consideration of this appeal by going back to the decision of the Industrial Commission which is reported in 57 WAIG 89. As the Commission saw it in the proceedings then before it, it was called upon to determine the industrial coverage to be provided in the future for workers employed in establishments of the kind before it, that is aged and disabled persons' hostels and after care hostels, or "to make such findings as will enable the Commission, as otherwise constituted, to make that determination in the light of this decision". It is apparent from the reasons given by the Commission for reaching its decision that it made an exhaustive study of these hostels both by hear- ing evidence and on inspection. In a passage in the reasons under the heading "Conclusion" the Commis- sion stated that in the ordinary sense, an establishment, even if not furnished, which provided accommodation together with meals was part of the "accommodation industry" which was usually the province of the F.L.A.I.U. even though such establishment might be restricted to a resident of a particular type such as a student, a member of an association, a female or, for that matter an elderly person. The real question is to what extent, if at all, does the nature of such an establishment change with the employment of staff, with no nursing qualifications. That staff may be called upon, from time to time, to assist some occupants — on the evidence by far the minority — in bathing and dressing, cleaning their rooms and laundering personal clothing and who would generally oversight the taking of medication and is available to render assistance and who is otherwise called upon to ensure the occupant is living in a home environment. The Commission then examined the contentions of the Hospital Employees Union, which amounted to saying that if a worker performs all or some of the duties of a nursing assistant that worker is a nursing assistant perse and that the establishment in which she is employed is one which should be covered industrially by that union. The Commission rejected that approach as being too simplistic. In a further passage it said: It appears to us that the "Major and substantial" function of such a hostel is to provide accommoda- tion (including meals) and companionship, and that ' 'medical care" in the generally accepted sense is not provided. Accepting that the elderly are likely to have ailments it seems, to quote one witness, that if their condition is debilitating enough "they are not in the hostel, they are in the nursing home". In our view an establishment staffed with persons not engaged in the field of nursing, and whose duties may be likened to those experienced in the home environment in caring for the elderly, does not take an establishment which mainly employs domestic and kitchen staff out of the "accommodation industry" and it would not be appropriate to allow the (F.M.W.U.) as well as the (F.L.A.I.U.) the award coverage of such establishments. The result of those proceedings was that until the award of Commissioner Halliwell, the F.L.A.I.U. had coverage of workers in hostels and after care establish- ments. As I understand its decision the Commission was of the view that the constitution of both unions had coverage of workers in these establishments but by reason of the way these establishments were carried on it was more appropriate for the F.L.A.I.U. to be the covering union. That was clearly an industrial decision reached by weighing up the evidence and such a decision would have been unappealable to this Court unless it could have been demonstrated the Commission made an error of law. As I see it when the matter came before Commissioner Halliwell precisely the same issue arose as was before the Commission in earlier proceedings. What he was called upon to decide was whether in the light of the circum- stances as he found them there had been a change of circumstances since 1976 (the year in which the Commis- sion had given its award in favour of the F.L.A.I.U.) sufficient either to result in the constitutional coverage of the F.L.A.I.U. no longer covering such establishments or whether, though both constitutions still retained coverage of the workers in these establishments, industrially it was more appropriate for the F.M.W.U. to have coverage. The former question obviously involved both a matter of fact and law while the latter remained as it did in the earlier case a mere question of fact. It is therefore necessary to examine in some detail the reasons for decision of Commissioner Halliwell. After shortly stating the contentions of the parties before him, the Commissioner referred to the earlier decision of the Commission in Court Session and quoted some of the passages referred to above as well as other passages. He then referred specifically to information provided in the case before him by the Department of Social Security contained in ex. ss-1 and stated that the essential determination to be made was whether, in the 65 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. light of that additional material, the concept of aged hostels as found by the Commission in the earlier pro- ceeding, had so altered that they are no longer within "the accommodation industry" for the purpose of the F.L.A.I.U. constitutional rule. With respect, that put the matter too narrowly since an examination of the evidence might have shown that though the constitution- al rule of the F.L.A.I.U. continued to have coverage, it would thenceforth be better for the F.M.W.U. to have coverage. Commissioner Halliwell in some detail con- sidered the material within ex. ss-1. It is not necessary to discuss that except to say it indicated that the 1983 amendment to the Federal Act was to reflect the Commonwealth Government's belief that greater emphasis should be placed on providing care services rather than merely accommodation for frail, aged or disabled hostel residents. As from 1 January 1984 certain aspects of the subsidy arrangement previously existing were re-defined. Whereas as previously personal care subsidy was paid to all residents over 80 years and to those under that age who were assessed as requiring personal care services, subsidised hostels are now required to provide hospital care services as defined at page four of the exhibit and personal care services as defined at page five to people who on a physical or social assessment are unable to function without daily assis- tance but who do not need full time nursing care. In addition minimum hourly periods are recommended as to personal service which should be provided. The Commissioner stated that the change in emphasis was a factor of weight in his deliberations on the issue presently before him. In deciding the constitutional issue he adopted the approach specified by the Industrial Appeal Court in Anglican Homes for the Aged v. Hospital Employees' Union 56 WAIG 795. That was a case where the issue before the Industrial Magistrate from whence the appeal came, was whether work done by certain persons employed by a hostel though in the nature of work done by a nursing assistant, was work done in a hospital within the meaning of the scope clause of the Hospital Employees' Union constitution. That scope clause applied to registered nursing aides and nursing assistants as employed by the respondents in hospitals performing work for the public where patients are received for medical, surgical observation, rest or other treatment or care. Wickham J. with whom the other members of the Court agreed, posed the test as follows: (1) What class of persons were recieved and (2) for what purposes were they received? Applying that test, the Commissioner concluded that the persons received into hostels are persons who can no longer maintain without support a satisfactory standard of health, nutrition, social well being, or social acceptability. They are received in the hostels so that they can receive hostel services and personal care services. Having applied that test the result was that hostels for the aged fell outside the ordinary meaning of the "accom- modation industry" as defined in the constitutional rule of the F.L.A.I.U. in that they may now not be said to be "service flats and/or apartment houses or boarding or lodging houses". The constitutional rule of the F.L.A.I.U. therefore no longer having coverage of these workers, it followed that an award should be made in favour of the only union whose constitution did have coverage. Once the Commissioner decided as a matter of fact and law that the constitution of the F.L.A.I.U. no longer had application he was not called upon to exercise his discretion in favour of the F.M.W.U. for it followed that in the absence of any other competing union the F.M.W.U. was entitled to the award unless for some good reason no award should have been made. As already pointed out, Commissioner Halliwell took too limited a view of the issues before him thinking apparently he only had to decide the matter on constitu- tional coverage. He did, however, decide the constitu- tional issue adversely to the F.L.A.I.U. The majority of the Full Bench, the President and Commissioner Martin, were of the opinion that the contents of ex. ss-1 and the other evidence did not reflect a significant change in the actual services to residents at hostels. Indeed it was not apparent to the majority that the factual situation before Commissioner Halliwell was noticeably different from that prevailing in 1976. In other words it seems the majority were of the view the Commissioner had made a finding of fact which was unsupported by the evidence. That left the position then that both unions continued to have constitutional coverage but it did not necessarily follow that there was not a sufficient change in the circumstances for an industrial decision to have been made that thenceforth the F.M.W.U. should have the coverage or that the 1976 decision should be reviewed. That question might have been referred back by the Full Bench to Commissioner Halliwell or they might have decided it themselves on the material before them, but this they did not do. The majority seems to have thought the Commissioner in reaching his decision that the F.L.A.I.U. constitution no longer covered hostels was exercising a discretionary judgment. That is illustrated by the following passage from the reasons of the President. The problem confronting him (Commissioner Halliwell) was sufficiently analogous to allow him in exercising his discretionary judgment to accept the argument that he adopt the method followed by the Industrial Appeal Court in the Anglican Homes for the Aged case. The construction of the constitution of the union was a matter of law to be applied to the facts as found in the case. The other member of the Court, Senior Commis- sioner Collier, who delivered separate reasons also seems to have thought the decision of Commissioner Halliwell was made in the exercise of a discretion. This Commissioner however did go on to consider the matter on the assumption that both unions had constitutional coverage and on the facts, as I understand his reasoning, as an industrial decision would have found it more appropriate for the F.M.W.U. to have coverage than the F.L.A.I.U. With respect the Full Bench seems to have misunder- stood the nature of the decision of Commissioner Halliwell. As it found there was no justification for him to have reached the factual conclusion of a change of circumstances sufficient to make the F.L.A.I.U. con- stitutional coverage no longer applicable, that left the issue between the parties unresolved unless the Commis- sion had proceeded, which it did not, to decide the matter itself. I think therefore the appropriate order of this Court is to allow the appeal and remit the matter back to the Full Bench for further determination in the light of these reasons. For myself I only wish to add that the issue which was both before Commissioner Halliwell and will be before the Full Bench is fairly simple to state if not decide. One can readily say, as in respect of a hospital, that a person does not resort to a hospital for accommodation but for treatment of the illness from which he or she is suffering. It is not, however, so easy to say in respect of a hostel that a person resorting to it has only one motive. He or she may resort to it for accommodation as well as for the hospital and personal care which it is called upon by reason of the Federal Act to provide. The question there- fore in determining the issue as to which union is to have coverage, they both having constitutional coverage, is a matter of fact and degree involving the weight one places on the hospital and personal care services rendered as compared to accommodation provided. For myself I do not find the test in the Anglican Homes case a great deal of help for when answering the second question (for what purposes are these people received?), the answer seems to be not only for hostel and personal care services but also for the purpose of providing accommodation. In short, the application of the test does not throw any light on the qualitative evaluation of the importance of accommoda- tion on the one hand and hospital and personal care services on the other. 1082 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 65 W.A.I.G. As to Appeal No. 2 for reasons earlier expressed this appeal should be dismissed. OLNEY J.: By notice of application filed in the Western Australian Industrial Commission (the Commission) on 2 February 1984, the Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous W.A. Branch (the F.M.W.U.) applied to the Commis- sion for a new award to be known as the Miscellaneous Workers (Hostel Domestics and Supervisors) Award. The text of the proposed new award (the log of claims) is set out in a schedule to the notice of application. The Commission at first instance determined the contentious issues that were raised by the application in favour of the applicant and made an award substantially in terms of the log of claims. The present appellants, being the employers respondent to the log of claims and the Federated Liquor and Allied Industries Employees Union of Australia, Western Australian Branch of Workers (the F.L.A.I.E.U.) which had intervened in the proceedings at first instance (and which appeared on the hearing of this appeal to support the appellants' case) appealed to the Full Bench of the Commission and having been unsuccessful there now appeal to this Court. The basis of the present appeal must of course be that the Full Bench decision was erroneous in law or was made without jurisdiction [Industrial Relations Act section 90 (1)]. There is no suggestion that the Full Bench lacked jurisdiction but the notice of appeal asserts that the Full Bench erred in several respects involving matters of law. In order to identify the errors of law that are said to give rise to this appeal, it is necessary to go back to the initial proceedings in order to discern the issues raised by the application and in so doing the industrial context in which the application was made becomes relevant. As the log of claims sought to replace in whole or in part a number of existing awards it will help describe the ambit of the dispute to briefly outline the scope of those awards and the extent to which it was sought to replace them. The four awards in question are the Hospital Workers (Hostel Domestics) Award No. 19 of 1977 (58 WAIG 503), the Hospital Workers (Hostel Supervisors) Award No. 6 of 1978 (58 WAIG 509), the Hostel Workers (Aged and Disabled Persons Hostels) Award No. 5 of 1976 (58 WAIG 513) and the Motel, Hostel, Service Flats and Boarding House Workers Award No. 29 of 1974 (56 WAIG 1504). The F.M.W.U. log of claims sought to replace the first three awards completely and the fourth to the extent that it applied to establishments operated as after care mental hostels. Awards No. 19 of 1977 and 6 of 1978 were obtained by the Hospital Employees Industrial Union (the H.E.U.), a union which has since been amalgamated with other unions to become the F.M.W.U. The F.L.A.I.E.U. is the union party to awards No. 5 of 1976 and 29 of 1974. Award No. 19 of 1977 applies to cleaners, gardeners, handymen, kitchen workers, orderlies, waitresses, motor vehicle drivers, cooks and the like employed in establish- ments by employers who provide accommodation and nursing care for persons and who for that reason receive a subsidy under the provisions of the Aged and Disabled Persons Homes Act of 1954 or the Mental Health Act 1962. Award No. 6 of 1978 applies to supervisors similarly employed. Award No. 5 of 1976 applies to cooks, supervisors, kitchen workers, yardmen, cleaners, gardeners, laundry workers and general hands employed by employers in establishments where residential accommodation and/or catering services are provided for persons who qualify for financial assistance under the Aged or Disabled Persons Homes Act 1954-74 not being establishments in which those persons receive nursing care from workers employed by or at the direction of the employer. Award No. 29 of 1977 applies to cooks, male and female bar workers, waiters, stewards, kitchen workers, laundry workers, yardmen, cleaners and the like in any establishment or place where boarders and/or lodgers are catered for, either permanently or otherwise, or where furnished or unfurnished apartments are sub-let to tenants and where there is service as to the provision of meals and/or cleaning but not to any establishment licenced as an hotel, limited hotel or tavern pursuant to the Liquor Act 1970. From the foregoing it follows that the two H.E.U. awards (Nos. 19 of 1977 and 6 of 1978) on the one hand and award No. 5 of 1976 on the other are mutually exclusive, the line of demarcation being determined by whether or not a particular establishment provides nursing care. Although the log of claims sought to replace Award No. 29 of 1974 insofar as it applied to establishments operated as after care mental hostels the award made by the Commission replaced it insofar as it applied to approved private psychiatric hostels. There does not appear to be any significance in the difference of verbiage used in the log of claims and in the award. It will be seen therefore that the overall effect of the log of claims was to seek to wrest from the F.L.A.I.E.U. industrial coverage of domestic workers and supervisors employed in establishments that can be loosely described as subsidised aged and disabled persons hostels and approved private psychiatric hostels. Understandably the F.L.A.I.E.U. intervention in the proceedings was for the purpose of avoiding such a result and thereby to preserve its industrial standing in this industry. The employers were also opposed to the changes sought by the F.M.W.U. In the result the F.M.W.U. won the day for reasons which will be explained hereafter. There is no doubt that the constitution of the F.M.W.U. is wide enough to entitle it to obtain award coverage in respect of the persons sought to be covered by the log of claims. Nor is there any question that the F.L.A.I.E.U. was competent by reason of its constitution to obtain the awards to which it was party which the F.M.W.U. sought to replace (either entirely or in part) by the proposed new award. In 1976 the Commission in Court Session had undertaken an exhaustive examina- tion of the constitution rule of both unions and in those areas in which concurrent constitutional rights existed it had determined the scope of the award coverage to be granted to each. This proceeding is hereafter referred to as the 1976 decision (57 WAIG 89). In 1981 the H.E.U. had sought a new Hostel Workers (Domestics and Supervisors) Award which was intended to replace awards No. 19 of 1977 and 6 of 1978 and to extend the coverage in much the same way as the log of claims in the present proceedings. The H.E.U. case then was that the accommodation of subsidised persons was an Australia wide industry which in four other States is industrially regulated by unions like the H.E.U. (but unlike the F.L.A.I.E.U.) normally involved in the hospital industry. Furthermore, it was said that the rates of pay in H.E.U. awards were generally higher than in F.L.A.I.E.U. awards and that in any event workers should have the right to chose which union to belong to where there was dual coverage. In response to this application the Commission gave a detailed and reasoned decision which proceeded from the initial premise that it should not depart from the 1976 decision unless there was a good reason. It examined the earlier decision as well as all of the new material put forward by the H.E.U. by which it sought to establish a good reason for such a departure but found in the end that on the material presented no change was called for (61 WAIG 1763). At first instance the application in the present matter came before by Mr Commissioner Halliwell whose written reasons identify the issue with which the Commission was then concerned. He said: Essentially, it is argued by the applicant that with the changes to the (Federal) Aged and Disabled Persons Homes Act 1958 (sic) effective from 1 January 1984, the differences between the situation examined by the Commission in Court Session in 1976-77 (see 57 WAIG 89) and the situation since 1 January 1984 are such as to render that decision no 65 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 1083 longer applicable and, further, to place those establishments outside the purview of the objecting union's constitutional rule. (Appeal Book p. 32) Later, the Commissioner said: The first issue is the fundamental question as to the constitutional coverage of the establishments in question, by the intervening union, (p. 34) After quoting some extracts from the 1976 decision in which the Commission in Court Session had decided that subsidised aged and disabled persons hostels came within the constitution of the F.L.A.I.E.U. the Commissioner went on to say: Thus the essential determination to be made is whether, in the light of material provided by the Department of Social Security (contained in exhibit ss-1), the concept of aged hostels as found by the Commission in Court Session, has altered, that they are no longer within' 'the accommodation industry'' for the purposes of the intervening union's constitu- tional rule. (p. 35) It is appropriate at this stage to pause to comment that the objecting union referred to in the quoted passages is the F.L.A.I.E.U., the constitution rule of which extends eligibility for membership, inter alia, to persons employed by or in the industries or callings of: Hotels, Service Flats and/or Apartment Houses, Boarding and/or Lodging House: In the jargon of the Commission that or those industries and callings are for convenience referred to as "the accommodation industry". Having considered the material presented to the Commission, the Commissioner indicated that he would decide the constitutional issue by reference to the approach adopted by the Industrial Appeal Court in a decision reported at 56 WAIG 795. It is unnecessary to go into the details of the decision referred to except to say that it involved the construction of the scope clause of an award and required decisions to be made as to the meaning of the words "hospital" and "patients". Just what the relevance of "the test" used by the Industrial Appeal Court in that decision to define the scope of the award under review has to the question of whether subsi- dised aged and disabled persons hostels as presently conducted fall within the accommodation industry completely escapes me. In any event the Commissioner found that changes that had occurred in the government subsidy scheme with effect from 1 January 1984 now places (the Commissioner's emphasis) the aged hostels, subject to this application, outside the ordinary meaning of the "accommodation industry" as defined in the constitutional rule of the intervening union in that they may now not be said to be "service flats and/or apartment houses or boarding or lodging houses" within the ordinary context of those words as used in the constitutional rule. (p. 41) On the basis of this conclusion, the F.L.A.I.E.U. no longer had any right to be a party to an award applying to workers employed in subsidised aged and disabled persons hostels by reason of the fact (and it is essentially a finding of fact) that those establishments in the changed conditions, no longer form part of the accommodation industry. It is important to appreciate that once the industry sought to be covered by the new award was found to be outside of the constitution of the F.L.A.I.E.U., it was no longer open to the Commission to exercise its discretion in favour of that union. As a matter of law the F.L.A.I.E.U. had no further standing in the case. This is not to say that the Commission was bound as a matter of law to make a new award in response to the F.M.W.U. application. In theory it would have been open to the Commission to order cancellation of the F.L.A.I.E.U. awards without replacing them but the practical reality was that once the F.L.A.I.E.U. was ruled out as a contender, the decision to grant the F.M.W.U. the award it sought was inevitable. The Commission did not immediately deal with the question of establishments operated as after care mental hostels but following a further hearing it held private psychiatric hostels to be outside the ordinary concept of "service flats and/or apartment houses or boarding or lodging houses" as understood in the F.L.A.I.E.U. con- stitution. In the result it made an award in favour of the F.M.W.U. extending both to subsidised aged and disabled persons hostels and private psychiatric hostels. Insofar as the Commission decided that an award should be made upon the application of the F.M.W.U. it was of course exercising a discretion to grant or refuse the application upon the merits of the case. In the context of the particular case, the Commission exercised its discretion on the basis that only one union was compe- tent to cover the workers concerned. If it had determined the construction of the constitution rule of the F.L.A.I.E.U. differently, different considerations would have been involved in the exercise of its discretion. The Commission would have had to consider the relative merits of the competing claims of the two unions but this was not done. Appeals by the appellants and the F.L.A.I.E.U. to the Full Bench of the Commission were unanimously dis- missed. The President of the Commission gave a reasoned decision which led him to conclude that the appeals should be dismissed. Senior Commissioner Collier gave separate reasons which in some details diverged from the reasoning of the President but never- theless he reached the same conclusion. The third member of the Full Bench, Mr Commissioner Martin, agreed with the orders proposed by the President but in so doing added two comments of his own. After reviewing the proceedings leading to the appeal the President said: At the heart of the problem is the question whether such hostels or establishments are within the accommodation industry notwithstanding that they are hospitals for the purpose of the constitution of the F.M.W.U. (p. 319). He then dealt with the earlier proceedings which had led to the making of the awards sought to be replaced and said: Upon the application in the present case F.M.W.U. attempted to show that from January 1984 changes occurred in respect of the Aged and Disabled Persons Homes Act 1958 {sic) which rendered the 1976 decision inapplicable. In this respect the union relied primarily upon a written submission from the Department of Social Security giving background information about current and previous subsidies for consideration by the Commis- sioner during the hearing of the application, (p. 323), And later he went on to say: Halliwell C. concluded that he was justified in making a new award as claimed having found that hostels, the subject of the claim, are outside the ordinary meaning of the accommodation industry as defined in the constitutional rule of F.L.A.I.E.U. in that they may not now be said to be "service flats and/or apartment houses or boarding or lodging houses" within the ordinary context of those words as used in the Union's constitutional rule. (p. 329) The President obviously understood the issue that had been dealt with by the Commission at first instance. Having stated the issue he went on to consider the respective cases put on behalf of the parties and the evidence called in support thereof. He then said: I am unconvinced, however, that the change of emphasis of itself is of sufficient weight to render the 1976 decision inapplicable, indeed on this occasion the Commission departed from the 1084 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 65 W.A.I.G. approach which determined that aged hostels are within the accommodation industry for the purposes of the Constitution rule ... I am mindful of the primary contention of the appellants that the 1976 decision was applicable in the present proceedings in the absence of substantial change. It is difficult to find evidence of practical differences in the way aged hostels are now conducted but the approach of the government has emphasised that such places are for the provision of care in particular rather than just for accommodation for the aged and disabled (p. 330)... It can certainly not be said that the previous concept of an aged hostel was dis- regarded though Halliwell C. found reason to consider it was no longer valid. The 1976 decision which was thought to have settled the question was considered in the light of all the matters put before the Commission. For these reasons, whilst it is not apparent to me that the factual situation was then noticeably different, I am not convinced that the 1976 decision of the Commission in Court Session was bound to be followed and I am not prepared to find that Halliwell C. was wrong in failing to apply that decision despite the lack of evidence that the situation had changed, he having adequate justifica- tion, as he saw it, to reconsider the question, (p. 331) (emphasis added) I have italicised the final sentence of this passage as it demonstrates what I apprehend as the error into which the President has fallen. Having reached the view that there was no evidence before the Commission at first instance to justify a conclusion that the situation had changed since 1976 he should have applied his mind to the effect that such a conclusion would have had on the reasoning of Mr Commissioner Halliwell, and had he done so, that is, substituted his own view of the facts for those of Halliwell C. the result must necessarily have been on the reasoning adopted by the latter (from which the President did not dissent) that the hostels in question remained part of the accommodation industry. It is of course true that Halliwell C. would have been justified in reconsidering the whole question of award coverage but he did not do so. He considered only the constitutional question and reached his decision on that issue upon material which in the President's view provided no evidence to found the finding of fact that was made. Mr Commissioner Martin's two observations were these: Firstly, the changes which have occurred in the rules of eligibility for various subsidies available to those organisations which provide residential and victualing facilities for the aged in our community have not in my view brought about any variation as to the work performed by the majority of employees employed in such establishments requiring for those employees, award coverage different from that which presently exists. Secondly, on the question of the proper construction to be placed upon the con- stitutional rules of the competing unions I am guided by and defer to the views of his Honour, the President, (pp. 337-8) What the Commissioner is here saying is that assuming both unions to be equally competent in a constitutional sense no reason to alter the existing award coverage was demonstrated but on the question of the constitutional competence of the F.L.A.I.E.U. he deferred to the views of the President without either expressly adopting or agreeing with them. It seems to me to be a logical inference that if the evidence before Halliwell C. did not establish a change sufficient to justify any change in the award coverage then it could not have established that the industry of subsidised aged and disabled hostels had ceased to be part of the accommodation industry. And that being the case, it is implicit in Martin C's first observation that he agreed with the President's view that there had been no evidence before Halliwell C. to support a conclusion that the situation (in a constitu- tional sense) had changed since 1976. Senior Commissioner Collier reviewed the history of the instant case as well as the previous history of other related applications and having done that went on to say It can be seen from the foregoing just how finely balanced this question is and in that circumstance very little evidence of changed circumstances since the 1975-76 position would be needed to tip the scale either way. It is clear from the reasons for decision of Halliwell C. that, the constitutional issue aside, the material provided by the director, Department of Social Security including the advice that the restructuring of personal care subsidy in the 1983-84 budget reflected the Australian Government's belief that greater emphasis should be placed on care service rather than on just accommodation for frail aged and disabled hostel residents weighed in the Commissioner's mind and presumably outweighed evidence called by the respondent. (Sic, presumably the appellants). In any event it was enough to tip the balance. I am of the view that the decision of the Commissioner was one which was reasonably open to him in the circumstances of this case. It is obvious that he did not disregard the December 1976 decision of the Commission in Court Session. On the contrary he brought his independent judgment to the application in the light of all the facts after considering the earlier decision of the Commission in Court Session ... I consider that the Commis- sioner did pay regard to the December 1976 decision of the Commission in Court Session but also brought his independent judgment to bear in the light of the history of the matter and the new material before him. In such circumstances and particularly in view of the delicate balance I am of the view that it would be wrong for an appeal bench to interfere with that exercise of discretion, (p. 334) In my opinion Senior Commissioner Collier has mis- understood the decision made by Commissioner Halliwell. By prefacing his remarks with the words "the constitutional issue aside" he was clearly considering something different from what Halliwell C. had con- sidered because the latter had dealt with the constitu- tional issue and nothing else. He had not brought an independent judgment to bear upon competing claims between two equally competent (in a constitutional sense) unions which were finely balanced. Had he done so, his decision would have been the result of an exercise of discretion that an appeal bench would be unlikely to interfere with. As it was the Commissioner at first instance construed the constitution of one of the adversaries in a way that eliminated the competition between the two unions and then as a matter of mere formality exercised his discretion in favour of the remaining contender. The Senior Commissioner did however go on to express agreement with Halliwell C. on the construction of the F.L.A.I.E.U. constitution. He did so by consider- ing the primary purpose of frail aged hostels and the criteria for subsidy eligibility disclosed in exhibit ss-1. He said that none of the industries or callings which make up the ' 'accommodation industry" in the constitution of the F.L.A.I.E.U. provide or would be expected to provide the type of care services under discussion in the appeal and in his view the provision of that care removes the classes of accommodation under discussion from the accommodation industry as envisaged by the constitu- tion rule. He thought also that the name of the union was fairly decisive it being hard he said to image this type of industry fitting comfortably into a union of federated liquor and allied (his emphasis) industries. (Presumably he thought the work in question had those characteristics which justified the workers being designated as "miscellaneous".) The Senior Commissioner in effect overruled the 1976 decision. He did not take that decision as the basis for a comparison between the conditions that applied in 1976 and those that applied in 1984 in order to determine whether there had been some variation which required that subsidised aged and disabled persons 65 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. 1085 hostels should no longer be regarded as part of the "accommodation industry". He considered the matter essentially on its merits and came to a conclusion different from the 1976 decision. This is an approach that I believe would have been open to Halliwell C. to adopt had he chosen to do so, but he did not adopt it. His approach was first to accept the 1976 decision as valid when made insofar as it dealt with the constitutional rights of the unions, then to consider the changes that had occurred in the intervening period and finally to reach a decision as to whether in the changed circum- stances the original decision was still valid. He concluded that it was not and he did so on the strength of a finding of fact. I do not think Senior Commissioner Collier has really addressed the issue raised by the appeal namely that there was no evidence upon which Halliwell C. could have reached that finding. If the majority view as to the absence of evidence had been reached by Halliwell C. there is no question that, in the way he approached the case, he would have followed the 1976 decision. The Full Bench regarded Halliwell C. as having exercised a discretion which he did not exercise. The decision of the Full Bench was therefore erroneous in law. Such an error gives rise to this Court's appellate jurisdiction. In view of the opinion of the Full Bench as to the absence of evidence to justify Halliwell C's finding of fact it should have done one of two things, namely either send the matter back to the Commissioner at first instance for re-consideration or proceed to exercise its own discretion in the matter on the basis of the facts as it found them to be. The Full Bench took neither course. I would allow the appeal and refer the matter back to the Full Bench for further consideration. The options that I have indicated above would appear to remain open to the Full Bench upon such further consideration. OLNEY J.: Section 90 (2) of the Industrial Relations Act 1979 provides that an appeal to this Court shall be instituted within 21 days from the date of the decision against which the appeal is brought. In this case the notice of appeal was filed some 23 days after the decision appealed against and accordingly is out of time. There is no provision in the Industrial Relations Act for the granting of an extension of time within which to appeal as to which the reasoning of this Court in State Electricity Commission of Western Australia Salaried Officers Association (Union of Workers) v. Western Australian Industrial Commission (55 WAIG 747) is applicable despite the slight difference in the statutory provision. Whereas formerly the statute provided for an appeal within a time to be prescribed and regulations prescribed a period of 21 days, the statute now sets the limit itself. In other respects the position is no different and accordingly this appeal is incompetent and should be struck out. Editors Note: Reference Appeal No. 2 of 1985. ROWLAND J.: I agree that the appeal should be allowed and against the background of facts set out in the other judgments delivered in this matter I can express my reasons shortly. The Commissioner at first instance, appears to have dealt with the application before him by asking whether the constitution of the intervening Union was such as to enable it to cover workers in the relevant Homes. In deciding this issue, he used as starting point, the decision of the Commission in Court Session in 1976 which deter- mined the scope of the award coverage to be granted to the applicant's predecessor and the present intervenor (57 WAIG 89). This decision gave coverage to the inter- venor. The Commissioner seemed to assume that that decision was correctly decided but that the "concept" of the homes in question had changed by 1984. His basis for finding this change in concept was the change in emphasis in Government policy to the finding of some of these homes. He found that the new concept was not within the constitution of the intervening Union. On appeal, the Full Bench seemed to become side- tracked by the Commissioner's reference to the 1976 decision. I believe, however, that they correctly posed the relevant question before them when the President said: At the heart of the problem is the question whether such hostels or establishments are within the accommodation industry notwithstanding that they are hospitals for the purpose of the constitu- tional rule of F.M.W.U. (The "accommodation industry" being a shorthand reference to the inter- venors' constitutional coverage.) Having posed the question, the President said: I am unconvinced that the change of emphasis of itself is of sufficient weight to render the 1976 decision inapplicable. He found as fact that the evidence before the Commissioner did not disclose in 1984 a factual situation that was noticeably different to that which existed in 1976. The President then referred to the fact that the Commissioner's method of deciding the constitutional issue differed from the method used in 1976 and he said in reference to that 1976 decision: It may be that if the Commission in Court Session had followed the method adopted by Halliwell C. it may have reached the conclusion which he reached. But that assumes that Halliwell C. reached the con- clusion he did as a matter of choosing between one of two Unions, each of which had power to give coverage. That assumption is not in my view open when one looks at his reasons. As I have indicated earlier, no-one challenged the implicit finding that must go to uphold the 1976 decision; that is that the intervening Union's constitution gave it power in 1976 to cover the relevant workers. Howsoever one decides questions of what is within constitutional power, whether it be in relation to concepts of the direction in which Governments seek to point activities or whether it be in terms of what actually occurs within the areas in question, and I do not enter that debate, the decision cannot rest on the exercise of a discretion. Coverage is within the constitution or it is not. The Commissioner has said that on his findings coverage is not within the constitution. The majority of the Full Bench has said that there is no material change in the facts between 1976 (when coverage was within power) and in 1984. That finding, if it was made in contempla- tion of the constitutional issue, would necessarily lead to the conclusion that it is still within power and that, it seems to me, in the absence of other considerations that would call for a different resolution of the matter, should have led to the appeal being allowed. There is no room for the exercise of a discretion in deciding whether a certain set of facts is within power. If there are other matters they have not yet been addressed. They should be addressed by the Full Bench. Choosing between two parties with constitutional power as to who shall have coverage is a separate issue to that which was addressed by the majority. The two issues should not be confused. I would allow the appeal and direct that the matter go back to the Full Bench to be dealt with according to law. Editors Note: Reference Appeal No. 1 of 1985. ROWLAND J.: For the reasons given by Olney J., I agree that this appeal is incompetent and should be struck out. Editors Note: Reference Appeal No. 2 of 1985. 1086 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE. IN THE