Industrial Relations Commission New South Wales

• Medium Neutral Citation: Sparke v State Training Services [2014] NSWIRComm 3
• Hearing dates: 18 December 2013, 24 January 2014
• Decision date: 17 February 2014
• Jurisdiction: Industrial Court of NSW
• Before: Backman J

Decision

Both matters will be sent to the President with a view to dealing with the proceedings as pending proceedings in the Supreme Court.

• Catchwords: Section 190A of the Industrial Relations Act 1996 (the IR Act) - two applications for leave to appeal and appeal - Apprenticeship and Traineeship Act 2001 (the A & T Act) s 55 - Industrial Relations Amendment (Industrial Court) Act 2013 (the amending Act) - amendments make significant changes to Commission's appellate jurisdiction - whether the applications fall within "pending proceedings" under sub-clauses 58(1) - (3), inclusive, of Schedule 4, Part 16 of the IR Act - observations on the competency of the appeal in IRC 754 of 2013 - observations on ambit of s 190A of the IR Act - orders
• Legislation Cited: Apprenticeship and Traineeship Act 2001; Civil and Administrative Legislation (Repeal and Amendment) Act 2013; Industrial Relations Act 1996; Industrial Relations Amendment (Industrial Court) Act 2013
• Category: Procedural and other rulings
• Parties: David Sparke (Applicant); Beeox Corporation Pty Ltd (Applicant); State Training Services (First Respondent); Vocational Training Board (Second Respondent)
• Representation: Mr D Sparke (Applicant in person); Mr T Dixon of counsel (Respondents); Mr C Miles (Respondents)
• File Number(s): IRC 754 of 2013; IRC 957 of 2013

JUDGMENT

1 In IRC 754 of 2013 David Sparke and Beeox Corporation Pty Ltd (the applicants) lodged an application for leave to appeal and appeal from a decision of Boland J to a Full Bench of the Commission. In IRC 957 of 2013, the applicants lodged an application for leave to appeal and appeal against a decision of Staff J in refusing to allow the applicants an extension of time in which to seek leave to appeal and appeal from various directions given by members of the Commission and from an interlocutory judgment of Boland J dated 9 March 2013.

2 This Court as presently constituted has carriage of IRC 754 of 2013 pursuant to an allocation from Boland J (then President) under s 190A(1) of the Industrial Relations Act 1996 (the IR Act). IRC 957 of 2013 was allocated to the Court by Walton J, President, for directions.

3 Both matters came before me on 18 December 2013 following my request to the parties in IRC 754 of 2013 to address three questions directed broadly to the issues of whether there is power under the IR Act for a Full Bench of this Commission to be constituted to hear the application and, if there is power for a Full Bench to be constituted to hear the appeal, should it now be heard by the Supreme Court.

4 The questions arose in the context of recent and pending retirements of four Industrial Court Judges. A practical effect of the retirements is that a Full Bench cannot now be convened to hear the two applications. This was sought to be made clear on 18 December 2013 to Mr Sparke who appeared for himself and for the second applicant, Beeox. IRC 754 of 2013 was set down for hearing on 27 September 2013. However on that day one member was absent. It was not possible to validly constitute a Full Bench to hear the appeal. This conclusion arises from a combination of provisions in force prior to 1 January 2014, commencing with s 55 of the Apprenticeship and Traineeship Act 2001 (the A & T Act). The original appeal which was heard by Boland J was brought by the applicants pursuant to s 55(1) of that Act. Section 55 is set out below, in full:

55 Appeals to Industrial Relations Commission

(1) An appeal from a decision of the Appeal Panel may be made to the Industrial Relations Commission in Court Session (the Commission), but only by leave of the Commission.

(2) An application for leave to appeal under this section must be made within 6 months after the appellant is notified of the Appeal Panel's determination or within such further period as the Commission allows.

(3) In dealing with the appeal, the Commission:

(a) may exercise any function that could have been exercised by the Appeal Panel in making the determination the subject of the appeal, and

(b) is not bound by the rules of evidence, but may inform itself in any manner it thinks fit.

(4) The decision of the Commission is final and is to be given effect to as if it were the decision of the person or body in respect of whose decision, determination, action or failure to act the appeal has been made.

5 Section 80 of the A & T Act is also relevant to this particular issue. It provides:

80 Relationship with Industrial Relations Act 1996

In the event of an inconsistency between:

(a) the provisions of this Act, or of any regulation, vocational training order or vocational training direction made under this Act, and

(b) the provisions of the Industrial Relations Act 1996 or of any regulation, order, award or agreement under that Act (other than a provision with respect to existing worker trainees),

the provisions referred to in paragraph (a) prevail to the extent of the inconsistency.

6 Section 55(1) of the A & T Act provided that appeals pursuant to s 55 may be made to the Industrial Relations Commission in Court Session, now the Industrial Court. I should mention at this point that the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 replaced s 55 of the A & T Act with a new s 55, effective from 1 January 2014. As a consequence, from that date an appeal no longer lies from a decision of an Appeal Panel to the Industrial Court. Instead, from 1 January 2014, s 55 provides for an appeal to the Civil and Administrative Tribunal (NCAT) against a decision of a Review Panel.

7 Section 153(1) of the IR Act sets out the functions of the Commission that are to be exercised only by the Commission in Court Session. Section 153(1)(i) (now repealed) referred to proceedings on an appeal from a member of the Commission exercising the functions of the Commission in Court Session. Section 153(2) (now repealed) provided that the function referred to in s 153(1)(i), "may only be exercised by a Full Bench of the Commission in Court Session". Section 156(1) of the Act provides that a Full Bench of the Commission consists of "at least 3 members who are constituted as a Full Bench by the President for the purposes of a proceeding".

8 The proceedings on 18 December 2013 were stood over until 24 January 2014 following the identification (by the respondent to the application in IRC 754 of 2013) of two issues said to give rise to some uncertainty in the continuation of the proceedings before me. The two issues were adverted to by me in the transcript of 18 December 2013, the relevant portion of which is extracted below:

HER HONOUR: During the course of reasons today two issues have been identified by the respondent as giving rise to some uncertainty in the continuation of the present proceedings. The first of those matters concerns the Industrial Relations Amendment (Industrial Court) Bill 2013. There is an indication that that particular bill will be proclaimed this Friday, 20 December. That being so, it could affect the course of the proceedings today giving rise to a reasonable argument that it may be better to adopt a more cautious approach to see what exactly the Amendment Act will allow this Court to do, if at all, before we proceed further.

The second issue that has arisen concerns whether a single judge under a section 190A delegation can deal with paragraph (d) of that particular section which suggests in terms that a single member may, in relation to an appeal, deal with any interlocutory application in the appeal.

The issue that arises in relation to that particular construction on its face at least is the absence of any specific application being before the Court as presently constituted in relation to the three questions that were posited by the Bench for consideration of the parties.

Given those two particular matters, my view is that the appropriate course is to stand the matter over for a short while in order to gauge within the interim period the effect or impact of the Amendment Act once it is proclaimed on the proceedings, and whether or not those amendments may give some guidance in relation to how the proceedings should continue.

9 On 20 December 2013 the Industrial Relations Amendment (Industrial Court) Act 2013 was proclaimed (the amending Act). The amending Act made significant changes to the way appeals from decisions of the Industrial Court are to be dealt with. Section 153(2) of the Act has been repealed effective from 20 December 2013. As a consequence on and from that date the Industrial Court cannot be constituted as a Full Bench but only by one judicial member (see note to s 156(1) of the Act). Section 187(2) was inserted into the Act by the amending Act. Section 187(1) of the Act provides for appeals to a Full Bench of the Commission against decisions of the Commission constituted by a single member. Section 187(2) provides that an appeal does not lie to a Full Bench of the Commission from a decision of the Commission in Court Session (the Industrial Court). A note at the end of the sub-section informs that, "Chapter 7A makes provision for appeals to the Supreme Court against such decisions." Sections 153(1)(i) and 153(2) of the Act were both repealed by the amending Act effective from 20 December 2013.

10 Section 403A of Chapter 7A of the Act provides, relevantly:

403A Appeals from decisions of Commission in Court Session

(1) Each of the following may, subject to this Chapter, appeal to the Supreme Court against a decision of the Commission in Court Session:

(a) a party to the proceedings in which the decision was made,

(b) an industrial organisation, or an association registered under Chapter 6, affected by the decision, ...

11 Section 409 of the Act, headed, Savings, transitional and other provisions, provides that Schedule 4 has effect. That Schedule sets out a number of savings and transitional provisions which, pursuant to Part 16, are expressed to be consequent on the enactment of the amending Act. For convenience, Part 16 is set out in full below:

Provisions consequent on enactment of Industrial Relations Amendment (Industrial Court) Act 2013

58 Application of amendments to pending proceedings

(1) Meaning of "pending proceedings"

This clause applies in relation to proceedings before a Full Bench of the Commission in Court Session (pending proceedings) that were commenced (but not completed) by the Full Bench before the abolition day.

(2) Heard or partly heard proceedings

Pending proceedings that were heard, or partly heard, by a Full Bench of the Commission in Court Session before the abolition day may continue to be dealt with and determined by a Full Bench of the Commission in Court Session.

(3) The provisions of this Act and any other legislation or law that would have applied to or in respect of proceedings referred to in subclause (2) had the amending Act not been enacted continue to apply to those proceedings.

(4) Unheard proceedings

The following provisions apply in respect of pending proceedings that had not commenced to be heard before the abolition day:

(a) if the function of determining proceedings of the kind concerned becomes the function of the Supreme Court or the Court of Criminal Appeal on that day because of amendments made by the amending Act-the proceedings are taken, on and from that day, to have been commenced in the Supreme Court or the Court of Criminal Appeal (as the case requires) and may be heard and determined accordingly,

(b) if the function of determining proceedings of the kind concerned becomes the function of the Commission other than in Court Session on that day because of amendments made by the amending Act-the proceedings are taken, on and from that day, to have been commenced in the Commission and may be heard and determined accordingly,

(c) if the function of determining proceedings of the kind concerned becomes the function of the Commission in Court Session (constituted by a single judicial member) on that day because of amendments made by the amending Act-the proceedings are taken, on and from that day, to have been commenced in the Commission in Court Session and may be heard and determined by a single judicial member accordingly.

(5) The provisions of this Act and any other legislation (as amended by the amending Act) apply to and in respect of proceedings referred to in subclause (4).

(6) Definitions

In this clause:

abolition day means the day on which Schedule 1 [6] to the amending Act commences.

amending Act means the Industrial Relations Amendment (Industrial Court) Act 2013.

12 Sub-clauses 58(1) - (3) inclusive apply to pending proceedings before a Full Bench of the Commission that were commenced but not completed by the Full Bench before the "abolition day". The "abolition day" is defined in cl 58(6) as the day on which the amendments to the Act contained in Schedule 1 to the amending Act commenced, that is, on 20 December 2013.

13 In my view neither of the two applications for leave to appeal and appeal fall within "pending proceedings" under sub-clauses 58(1) - (3) inclusive. Neither matter has been before a Full Bench of the Industrial Court as required under sub-clause 58(1). That being the case, both applications would appear to be "pending proceedings" that had not commenced to be heard before 20 December 2013 (the abolition day) in accordance with the provisions of sub-clause 58(4) of the Act. With regard to the hearing that took place on 27 September 2013, it could not be said to involve something that could be described as heard or part heard for the purposes of sub-clause 58(2). Whereas it may be arguable that some interlocutory determinations of a substantive kind in a set of proceedings might trigger sub-clause 58(2), the mere giving of directions could not constitute heard or part heard proceedings and nothing else that has been done in relation to the "appeal" could be described as anything other than preliminary procedural steps and not something which was in the nature of an interlocutory step of a substantive kind.

14 A further preliminary matter requiring attention goes to the issue of the competency of the appeal against the decision of Boland J in IRC 754 of 2013. On 27 September 2013 the Court constituted by two members of the Bench (Haylen and Backman JJ) advised the parties that a potential issue of jurisdiction should be addressed prior to hearing any argument on leave, or on the substantive appeal. Shortly stated, the issue concerned the terms of s 55 of the A & T Act (in force prior to 1 January 2014) and whether, pursuant to sub-section (4), the decision of his Honour, Boland J was final and not amenable to further appeal. Arrangements were duly made for the parties to file and serve written submissions on this issue.

15 The version of s 55 in force prior to 1 January 2014 has been set out in full above. In written submissions filed on 27 September and on 4 October 2013, the respondent's primary contention was that the word "final" in s 55(4) appears to be intended to achieve finality by ousting further appellate review under Part 7 of the Act. Mr Sparke, on behalf of the applicants, filed written submissions on 14 October 2013 and on 26 November 2013. The submissions traverse a broad range of matters, and do not address directly the issue of competency of the appeal by reference to s 55 of the A & T Act. The submissions focus upon the structure of the IR Act and on the statutory right of appeal against a decision of a single member of the Industrial Court that was available to a Full Bench of the Industrial Court.

16 The issue of jurisdiction involves the construction of s 55 of the A & T Act both in its particular terms and in the context of the whole of that Act. It may be helpful to examine the complaint and disciplinary structure provided under the A & T Act prior to 1 January 2014.

17 The A & T Act provided a four-tiered structure of reconsideration and appeal. It commenced with conciliation, then review by the Vocational Training Tribunal, then review by the Appeal Panel and lastly, a final appeal to the Industrial Court. The initial complaint was made to the Commissioner for Vocational Training (the Commissioner) (s 39). The Commissioner's first duty under s 40 was to attempt to settle the matter between the parties and if settlement was unsuccessful, the Commissioner was obliged to refer the complaint to the Tribunal. Under s 44, the Tribunal was not bound by the rules of law governing the admission of evidence, but could inform itself on any matter and in such manner as it thought fit. Hearings were to be conducted with as little formality and legal technicalities as the circumstances permitted, but the hearing had to be conducted in the absence of the public. Under s 45, a party to a complaint was not entitled to be represented by a legal practitioner except with the consent of the Tribunal and each of the other parties to the hearing. A party could be represented by an industrial organisation and neither the Crown, or an industrial organisation, was prevented from appearing by a legal practitioner. Pursuant to s 46, the presiding member of the Tribunal could require a person to attend a hearing for the purposes of giving evidence or to produce documents and could require a person giving evidence to be sworn. It was an offence to fail to comply with the requirement to attend the hearing, or to produce a document as required. By s 50, the Tribunal could not make a determination in relation to a complaint made by a party until it had attempted to bring each of the parties to an acceptable settlement. Under s 51 the Tribunal had to determine a complaint, by caution or reprimand, by ordering a person against whom the complaint had been made to make redress as the Tribunal considered appropriate (otherwise than by way of damages for breach of contract) and, could vary, suspend or cancel the apprenticeship or traineeship, or dismiss the complaint. Section 52 provided in certain circumstances where orders for compensation may be made by the Tribunal. Section 54 dealt with appeals to the Appeal Panel and such appeals could be against any decision of the Tribunal or the Commissioner, including vocational training directions made by the Tribunal, or the Commissioner. A number of other appealable decisions were set out in s 54. Such an appeal was to be dealt with by way of a new hearing, and fresh evidence, or fresh information, may be given on the appeal. All of those measures were required to take place before an appeal to the Industrial Relations Commission in Court Session (the Industrial Court) under s 55.

18 The appeal to the Industrial Court under s 55 contained a number of provisions that shed light on the legislative purpose. An appeal to the Industrial Court was not available as of right, but required that leave be granted. An application for leave to appeal had to be made within six months after the appellant was notified of the Appeal Panel's determination, or a further period as the Industrial Court allowed. This may be contrasted with appeals instituted under s 189 of the IR Act which requires an appeal to the Full Bench to be made within 21 days of the date of decision, or within such further time as is allowed.

19 In addition, the Industrial Court could exercise the function that could have been exercised by the Appeal Panel in making the determination the subject of the appeal. In this way, the Industrial Court stood in the place of the Appeal Panel and was subject to the legislative directions for the Appeal Panel as established by the A & T Act and not by the IR Act. Further, the Industrial Court, conducting an appeal under s 55, was not bound by the rules of evidence but could inform itself in any manner it thought fit. It is to be noted that s 163(2) of the IR Act provides that the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session. Sub-section 55(4) of the A & T Act stated that the Commission's decision is to be given effect as if it were a decision of the person or body in respect of whose decision, determination, action or failure to act is the action prompting the appeal under s 55.

20 This many tiered structure of review and ultimate appeal to the Industrial Court available prior to 1 January 2014 is noteworthy for the fact that in the review and appeal approach of the A & T Act, this was the first time that a judicial officer was involved. Although the rules of evidence do not apply, the structure of the Act strongly suggested that, after all the other avenues have been availed of, there was one further chance for a judicial body to conduct an appeal and thus bring about a resolution of the matters in dispute. Section 55 was also significant for what it did not provide: in terms, it did not provide for a further right of appeal in relation to a decision made by a single member of the Industrial Court to a Full Bench of the Industrial Court. The section did not state what the role of the Full Bench on appeal would be as it did specify in relation to the role of a single member of the Court. The s 55 right of appeal itself was subject to the grant of leave. A further right of appeal to a Full Bench would open a grant or refusal of leave under s 55 to be re-considered (by the Full Bench) with another need for leave to be granted for that further level of appeal. The provision of such a further appeal right to the Full Bench would usually require specific provisions laying down the procedure and the role of the Full Bench on appeal.

21 When the various levels of review under the A & T Act are considered, it suggests that as a matter of policy, the legislature had determined that there would be one further and final avenue of appeal and that would be to a single member of the Industrial Court.

22 I mentioned earlier that IRC 754 of 2013 was allocated to me pursuant to s 190A of the Act. I am not aware of any judicial consideration of the provision. The section provides:

190A Interlocutory and other matters in proceedings on appeal

(1) If an appeal is made under this Part to a Full Bench of the Commission, the Commission constituted by the President (or by another member of the Commission nominated by the President) may do any one or more of the following for the purposes of, or in relation to, the appeal:

(a) make any consent order in relation to the appeal,

(b) grant leave to withdraw or discontinue the appeal,

(c) give any directions in relation to the hearing of the appeal,

(d) deal with any interlocutory application in the appeal.

(2) (Repealed)

(3) A member of the Commission who made a decision the subject of an appeal may not constitute the Commission for the purposes of this section.

(4) This section does not authorise:

(a) the Commission constituted in accordance with this section to grant leave to appeal, or

(b) the granting of a stay against the decision appealed against otherwise than under section 190.

23 The only provisions of any apparent relevance to the application under IRC 754 of 2013 are s 190A(1)(c) and (d). Under the first of those provisions, a member of the Commission can give any directions in relation to the hearing of the appeal. Section 190A(1)(d) permits a member to deal with any interlocutory application in the appeal. The difficulty I have with the provision is that no party has made any application to the Court to deal with the issue of the competency of the appeal. It was raised directly by the Court on 27 September 2013. Similarly the three questions I asked the parties to address on 18 December 2013 do not arise in the context of any application by the parties to that effect. Accordingly, I take the view that I have no power under s 190A(1)(d) to determine the issue of competency of appeal.

24 I have sought to highlight some of the issues that may arise for further agitation in another forum. If I had resolved the issue raised as to the competency of the appeal, that may have constituted heard or part heard proceedings. However neither party has asked me to do that and I have only made certain observations for the purposes of the matter going forward. One final matter I should mention concerns the directions hearing that took place on 24 January 2014. The respondent, represented on that day by Mr Miles, contended that the Court should dismiss both appeals. Mr Sparke, on behalf of the applicants, submitted that the appeals should be upheld. I do not consider I have the power to do either of those two things. Both applications (assuming there is jurisdiction) require leave to appeal. Section 190A(1) sets out the extent of the Commission's powers when acting in accordance with the section. Section 190A(4) expressly does not authorise the Commission as constituted in accordance with the section to grant leave to appeal. I have already recorded my view that s 190A(1)(d) does not arise in the present circumstances on the basis that no party applied to the Court to deal with an interlocutory application "in the appeal". Therefore the proceedings in this Court, to the extent there is a competent appeal in IRC 754 of 2013, are spent. The processes are spent because no other application has been made to the Court to invoke its jurisdiction vis a vis its declaratory jurisdiction.

25 Both matters will be sent to the President with a view to dealing with the proceedings as pending proceedings in the Supreme Court.

Decision last updated: 17 February 2014