Appeal against a decision of the Commission in matter no. APPL 11/2017 given on 7 April 2017 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH CITATION : 2017 WAIRC 00869 CORAM :The Honourable J H Smith, Acting President Chief Commissioner P E Scott ACTING Senior Commissioner S J Kenner HEARD : BY WRITTEN SUBMISSIONS - 20 sEPTEMBER 2017, 21 SEPTEMBER 2017 AND 28 September 2017 DELIVERED : MONDAY, 16 OCTOBER 2017 FILE NO. : FBA 7 OF 2017 BETWEEN : The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch Appellant AND Public Transport Authority of Western Australia Respondent ON APPEAL FROM: Jurisdiction : Western Australian Industrial Relations Commission Coram : Commissioner D J Matthews Citation : [2017] WAIRC 00175; (2017) 97 WAIG 365; [2017] WAIRC 00205; (2017) 97 WAIG 366 File No. : APPL 11 of 2017 CatchWords : Industrial Law (WA) - Supplementary decision - Orders to be made in light of reasons for decision Legislation : Industrial Relations Act 1979 (WA) s 27(1)(a), s 27(1)(a)(ii), s 27(1)(a)(iv), s 46 Result : Order made Representation: Counsel: Appellant : Mr C Fogliani Respondent : Mr J Carroll Solicitors: Appellant : W.G. McNally Jones Staff Lawyers Respondent : State Solicitor's Office === REASONS FOR DECISION === --- SMITH AP AND SCOTT CC: --- ¶1 Introduction ¶2 In reasons for decision delivered on 19 September 2017 ([2017] WAIRC 00830) the majority of the Full Bench upheld ground 1 and ground 4 of the appeal. ¶3 Ground 1 stated that the Commissioner erred in law in dismissing the union's s 27(1)(a) application. The union's application was an application to dismiss the substantive application, made by the Public Transport Authority of Western Australia (the PTA), pursuant to s 46 of the Industrial Relations Act 1979 (WA) (the Act), to interpret the Public Transport Authority/ARTBIU (Transperth Train Operations Rail Car Drivers) Industrial Agreement 2016 (No. AG 19 of 2016) (the Industrial Agreement) (APPL 11 of 2017). ¶4 Section 27(1)(a)(ii) and s 27(1)(a)(iv) empower the Commission to dismiss an application or refrain from hearing without proceeding to hear the substantive application. Section 27(1)(a)(ii) and s 27(1)(a)(iv) provide: Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied — … (ii) that further proceedings are not necessary or desirable in the public interest; or … (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be; ¶5 Ground 4 of the appeal raised an error going to determination of the substantive application in APPL 11 of 2017. ¶6 On 19 September 2017, the Full Bench issued a minute of proposed order in the following terms: 1. The appeal be and is hereby upheld. 2. The decisions made by the Commission in matter APPL 11 of 2017 given on 24 March 2017 ([2017] WAIRC 00175; (2017) 97 WAIG 365) and on 7 April 2017 ([2017] WAIRC 00205; (2017) 97 WAIG 366) are hereby quashed. ¶7 On 20 September 2017, by email, the PTA made the following submission: The respondent wishes to raise the following matters regarding the minute. Given that the proposed orders quash the decision of Commissioner Matthews that relates to the Union's application for the matter to be dismissed under section 27(1)(a) of the IR Act, the effect of the orders will be to have the Union's s 27(1)(a) application undecided and still on foot. The respondent therefore is of the view that in conjunction with the order quashing the Commissioner's decisions, it will be necessary for the Full Bench to also make an order dismissing the PTA's s 46 application (in accordance with the Full Bench's reasons that Commissioner Matthews ought to have done so). If such an order is not made, it is not clear to the respondent what is to happen to either (i) the PTA's s 46 application which has not been dismissed but also not remitted, or (ii) the Union's s 21(1)(a) [sic] application, which has not been dealt with, nor remitted. ¶8 On 21 September 2017, by email, the union made the following submission: The current minute of proposed orders would quash the orders made by Matthews C on 24 March 2017 ([2017] WAIRC 00175; (2017) 97 WAIG 365) and 7 April 2017 ([2017] WAIRC 00205; (2017) 97 WAIG 366). The effect of the proposed order would be to re-enliven Matthews C's jurisdiction to hear and determine the PTA's section 46 application, and the RTBU's section 27(1)(a) application (Robe River Associates v The Amalgamated Metal Workers and Shipwrights Union of Western Australia (1990) 70 WAIG 2083, 2086; and The Australian Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia (2014) 94 WAIG 800, 801). At paragraphs [110]-[113] of the reasons for decision of the Full Bench, the majority have suggested that Matthews C should have upheld the RTBU's section 27(1)(a) application and dismissed the PTA's section 46 application. Given that finding, there appears to be no practical purpose in quashing Matthews C's decision to dismiss the RTBU's section 27(1)(a) application. A practical solution would be for the Full Bench to vary Matthews C's decision dated 24 March 2017 to instead uphold the RTBU's section 27(1)(a) application, and dismiss the PTA's section 46 application. ¶9 On 28 September 2017, the parties were informed the members of the Full Bench were of the opinion that the order dismissing the union's (s 27(1)(a)) application should be quashed as whilst the majority found the learned Commissioner erred in dismissing the union's application, it held that the union's application was not capable of being determined as the substantive matter had been finally determined. ¶10 The Full Bench then issued a further minute of proposed order on 28 September 2017 as follows: 1. The appeal be and is hereby upheld. 2. The declaration made by the Commission in matter APPL 11 of 2017 given in reasons for decision delivered on 24 March 2017 ([2017] WAIRC 00177; (2017) 97 WAIG 361) and on 7 April 2017 ([2017] WAIRC 00205; (2017) 97 WAIG 366) are hereby quashed. 3. The order made on 24 March 2017 ([2017] WAIRC 00175; (2017) 97 WAIG 365) is quashed. 4. APPL 11 of 2017 is dismissed. ¶11 By email sent on 28 September 2017, the union informed the Full Bench that it did not wish to speak to the further minute. ¶12 However, the PTA, by email sent on 28 September 2017, retracted its earlier advice that it was the PTA's submission that the substantive application in APPL 11 of 2017 should be dismissed and made the following submission: First, the respondent is of the view that the Full Bench has no power to dismiss APPL 11 of 2017, except through exercising its discretion under s 27(1)(a) on the Union's application. Secondly, a majority of the Full Bench has found that Matthews C erred by failing to take into account relevant considerations when considering the section 27(1)(a) application to dismiss. On the basis of that finding, the Full Bench (will) quash the order made by Matthews C on the section 27(1)(a) application. The section 27(1)(a) application therefore will remain on foot and has not been dealt with. The respondent says that, in light of the majority's reasons, the Full Bench must either remit the matter back to Matthews C to reconsider the section 27(1)(a) application or determine the section 27(1)(a) application itself. Thirdly, the majority held that the section 27(1)(a) application would not [sic] capable of being determined because the substantive matter had been finally determined. However, the Full Bench has (or will, when it issues the final orders) quash the decision, order and declaration of Matthews C, so the substantive matter will not have been determined, therefore there is (i) no obstacle to the section 27(1)(a) application being determined, and (ii) given that the section 27(1)(a) application has been made, and now not dealt with, the Commission (either as the Full Bench, or Matthews C on remittal) is obliged to exercise its jurisdiction and deal with that application. The respondent is therefore of the view that there are two possible forms of orders which the Full Bench can make in light of its reasons: 1) Quash the relevant declaration and decision, and suspend the order (made on the section 27(1)(a) application) and remit the matter back to Matthews C for determination; or 2) Quash the relevant declaration and decision, and then reconsider the section 27(1)(a) application, and, depending on the outcome of that reconsideration, orders will need to be made to give effect to that decision. ¶13 With respect, the PTA's submissions misconstrue the scope of the union's s 27(1)(a) application. It was an application made on 14 February 2017 to dismiss the substantive application prior to a hearing on the merits. Its specific purpose was to avoid a hearing of the merits of the interpretation of the Industrial Agreement before the Commission. The grounds of the union's application to dismiss were that the union sought: a. that Application 11 of 2017 be dismissed under section 27(1)(a) of the Industrial Relations Act 1979 (WA) because: i. it constitutes further proceedings which are neither necessary or desirable in the public interest; and ii. that it is an abuse of process or is a vexatious application, and b. to reserve its rights for costs under section 27(c) [sic] of the Industrial Relations Act 1979 (WA). ¶14 If the union's application under s 27(1)(a) had been successful, the hearing of claim M 101 of 2016 in the Industrial Magistrate's Court would have proceeded on 26 April 2017 wherein the Industrial Magistrate in determining whether the PTA had breached cl 5.2.1(b)(i) of the Industrial Agreement would have been called upon to interpret the meaning of cl 5.2.1(b)(i). ¶15 Leaving aside the issue of the PTA's delay in bringing the application, given that the matter before the Commission related only to factual circumstances of the claim before the Industrial Magistrate's Court (that is, the determination of whether a particular employee has an entitlement that is owing pursuant to cl 5.2.1(b)(i) of the Industrial Agreement), and to the fact that such a claim is an enforcement matter in relation to which the Industrial Magistrate has exclusive jurisdiction and the Commission is not empowered under s 46 of the Act to enforce the provisions of an industrial agreement, Smith AP (Scott CC agreeing) found the learned Commissioner erred in dismissing the union's application [101(f)] and [111]. ¶16 As it is now not open to dismiss the PTA's substantive application at a preliminary or interlocutory stage of proceedings, Smith AP (Scott CC agreeing) found that it would be difficult to uphold the appeal, suspend the decision to dismiss the union's application and remit for further hearing [113]. ¶17 It does not follow, however, that the Full Bench has no power to dismiss the PTA's substantive application. Smith AP (Scott CC agreeing) found the declaration made by the learned Commissioner was erroneous and should be quashed [127]. Because the majority also found that the learned Commissioner erred in dismissing the union's application to dismiss the PTA's substantive application, it necessarily follows that an order should be made to dismiss APPL 11 of 2017. ¶18 For these reasons, we are of the opinion that an order should be made in terms of the minute of proposed order issued on 28 September 2017. --- KENNER ASC: --- ¶19 As the order is of the majority I have nothing further to add.