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Western Australian Industrial Gazette 1141 1141 81 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1141 Western Australian Industrial Gazette PUBLISHED BY AUTHORITY Sub-Part 5 WEDNESDAY, 23 MAY, 2001 Vol. 81—Part 1 THE mode of citation of this volume of the Western Australian Industrial Gazette will be as follows:— 81 W.A.I.G. CUMULATIVE CONTENTS AND DIGEST APPEAR AT THE END OF THIS PUBLICATION INDUSTRIAL APPEAL COURT— 2001 WASCA 136 JURISDICTION: WESTERN AUSTRALIAN Appeals against decision of INDUSTRIAL APPEAL COURT Full Bench— CITATION: FOOD PRESERVERS UNION OF WESTERN AUSTRALIA, UNION OF WORKERS v. THE 2001 WAIRC 02630 AUTOMOTIVE, FOOD, METALS, ENGINEERING, WESTERN AUSTRALIAN INDUSTRIAL APPEAL PRINTING AND KINDRED INDUSTRIES UNION OF COURT WORKERS, WESTERN AUSTRALIAN BRANCH & PARTIES CITY OF GERALDTON, APPELLANT ANOR [2001] WASCA 136 v. CORAM: KENNEDY J (Presiding Judge) DAVID JOHN COOLING, SCOTT J RESPONDENT PARKER J CORAM JUSTICE KENNEDY (PRESIDING HEARD: 1 FEBRUARY 2001 JUDGE) DELIVERED: 27 APRIL 2001 JUSTICE SCOTT JUSTICE PARKER FILE NO/S: IAC 7 of 2000 BETWEEN: FOOD PRESERVERS UNION OF DELIVERED MONDAY, 2 APRIL 2001 WESTERN AUSTRALIA, UNION OF WORKERS FILE NO/S IAC 4 OF 2000 Appellant CITATION NO. 2001 WAIRC 02630 AND _______________________________________________________________________________ THE AUTOMOTIVE, FOOD, METALS, Result Notice of Motion discontinued ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN Representation AUSTRALIAN BRANCH Appellant Mr AR Heaver (of Counsel) First Respondent Respondent Mr DJ Cooling INGHAMS ENTERPRISES PTY LTD _______________________________________________________________________________ Second Respondent Order. Catchwords: HAVING heard Mr AR Heaver (of Counsel) on behalf of the Industrial law-Appeal from Full Bench of the Industrial City of Geraldton and Mr DJ Cooling on his own behalf and Relations Commission to the Industrial Appeal Court-Appel- by consent, THE COURT HEREBY ORDERS that— lant ordering that respondent had the right, to the exclusion of 1. The Notice of Motion filed by the Appellant on the proposed appellant, to represent under the Act the indus- 20 December 2000 be discontinued. trial interests of employees of a company-Proposed appellant given leave by the Full Bench to be heard-Proposed appellant (Sgd.) JOHN SPURLING, neither a party to the proceedings before the Full Bench nor [L.S.] Clerk of the Court. an intervener-Appeal incompetent Legislation: Industrial Relations Act 1979, s 72A, s 90(2) Result: Appeal dismissed as being incompetent Representation: Counsel: Appellant: Mr M L Barker QC & Mr M D Cuerden 1142 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. First Respondent: Mr D H Schapper proceedings before the Full Bench, on the face of it, it Second Respondent: No appearance would have been appropriate for the appellant to have sought to be joined as a party. However, no application Solicitors: for that purpose was made to the Full Bench, possibly Appellant: Hammond Worthington for the reason that the Full Bench has previously expressed First Respondent: Mr D H Schapper the view that, if a person has a right to apply to be heard, Second Respondent: No appearance that person may not be permitted to intervene or, presumably, to be joined as a party. This is an issue to Case(s) referred to in judgment(s): which we return. Burswood Resort (Management) Ltd v Australian Liquor 8 By s 27(1)(k) of the Act, the Commission is empowered Hospitality and Miscellaneous Workers' Union, Miscellane- to permit the intervention, on such terms as it thinks fit, ous Workers' Division, unreported; FCt SCt of WA; Library of any person who, in the opinion of the Commission, No 940280; 2 June 1994 has a sufficient interest in the matter. No application was Hospital Salaried Officers Association of Western Australia made by the appellant for permission to intervene. (Union of Workers) v Civil Service Association of Western 9 The Act draws a clear distinction between an intervener Australia (Inc) (1996) 76 WAIG 1673 and a person permitted to be heard. Thus, s 31(1), dealing In re Sharkey; Ex parte Burswood Resort (Management) with the representation of persons in proceedings before Ltd (1994) 55 IR 276 the Commission, distinguishes between a person or body Re Federated Miscellaneous Workers Union of Australia WA permitted by the Commission to intervene, and a person Branch (1993) 49 IR 262 or body permitted by the Commission to be heard in The Australian Bank Employees Union v Federated Clerks' proceedings before the Commission. Union of Australia Industrial Union of Workers, WA Branch 10 Section 27(1)(k) empowers the Commission to permit (1990) 70 WAIG 2086 the intervention on such terms as it thinks fit, of any person Case(s) also cited: who, in the opinion of the Commission, has a sufficient interest in the matter before it. Re Western Australian Industrial Relations Commission; Ex parte Confederation of Western Australian Industry (Inc) 11 Section 30 empowers the Commission to permit State (1992) 6 WAR 555 and Commonwealth Ministers, by leave, to intervene in proceedings before the Commission in which the State 1 JUDGMENT OF THE COURT: By a notice of or Commonwealth has an interest. On the other hand, a application dated 5 January 2000, the first respondent, number of other provisions in the Act empower the pursuant to s 72A(2) of the Industrial Relations Act 1979, Commission to allow persons with a sufficient interest in applied to the Full Bench of the Western Australian the matter before it an opportunity to be heard in relation Industrial Relations Commission for an order that it thereto-see s 51(10) in relation to the making of General should have the right to represent under the Act the Orders, s 55(2)(c) in relation to persons objecting to the industrial interests of all those persons employed by the registration of an organisation under s 53 or s 54 and s second respondent at Osborne Park, or at such other 97F(2)(b), which requires the Commission, subject to location as the undertaking at Osborne Park may subsection (1), and in the circumstances set out therein, subsequently be carried out, and that the appellant should to order a pre-strike ballot to be held if it is satisfied that not have the right to represent under the Act the industrial the parties who have a sufficient interest in the matter interests of any of those persons. The appellant at that have been given an opportunity to be heard. time had the right to represent all those persons. In accordance with the provisions of s 72A(3) of the Act, 12 Section 35 of the Act provides that the "parties concerned the first respondent's application was duly published in in a decision" shall be entitled to speak to matters the Industrial Gazette. contained in the minutes of the decision, and the 2 At the commencement of the hearing of the Commission may, after hearing the parties, vary the terms application before the Full Bench, the appellant of the minutes before they are delivered as the decision sought, and was granted, the right to be heard under s of the Commission. It is sufficiently clear from 72A(5) of the Act, which provides that the Full Bench subsections (3) and (4) that the parties referred to in shall not make any order described in subsection (2) subsection (1) are parties within the normal meaning of without giving persons who, in the opinion of the Full that term and not interveners or those persons who have Bench, have a sufficient interest in the matter an been granted leave to be heard. See The Australian Bank opportunity of being heard. Employees Union v Federated Clerks' Union of Australia Industrial Union of Workers, WA Branch (1990) 70 WAIG 3 On 14 September 2000, the Full Bench found in favour 2086, at 2091. of the first respondent and granted its application. On 26 September 2000, the appellant filed a notice of appeal. 13 In our opinion, the conclusion is inescapable that the When the appeal came on for hearing in this Court, a appellant, being neither a party to the proceedings below, preliminary issue was raised as to the competency of the nor having been permitted to intervene in those appeal. proceedings, has no right of appeal under s 90 of the Act. The fact that it was granted the right to be heard before 4 Section 90(2) of the Act provides that an appeal to this the Full Court cannot lead to its being characterised as Court may be instituted— either a party or an intervener. In our opinion, the appeal “(a) by any party to the proceedings wherein the de- is incompetent and must be dismissed. cision was made; or (b) by any other person who was an intervener in 14 During the course of the hearing before this Court, there those proceedings.” was some discussion of a difference of opinion which has emerged between the Full Bench on the one hand 5 By s 29B of the Act, subject to s 27(1)(j), the parties to and a number of Judges of the Supreme Court who have proceedings before the Commission shall be— been considering claims for prerogative relief in respect “(a) the claimant or applicant by whom or which the of decisions of the Commission on the other. We consider proceedings were initiated; and it desirable that we should draw attention to this matter. (b) the other persons, bodies, organisations or asso- 15 In Re Federated Miscellaneous Workers Union of ciations upon whom or which a copy of the claim Australia WA Branch (1993) 49 IR 262, the Full Bench, or application is served.” in dealing with an application for leave to intervene, said 6 Service of the application, we were informed from the at 268-269— Bar table, was not effected upon the appellant.
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