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Appeals to the Full Bench

If you are not satisfied with a decision of the Commission or the Industrial Magistrate's Court, you may be able to appeal the decision to the Full Bench in accordance with the Industrial Relations Act 1979 (WA) and the Industrial Relations Commission Regulations 2005. You must have evidence to support the grounds of your appeal, namely that the Commission or the Industrial Magistrate's Court has either erred in the application of the relevant law in dealing with your matter or did not properly account for the evidence put at hearing.

The Full Bench is constituted by the Chief Commissioner or Senior Commissioner as the presiding member and at least two other Commissioners. The decision of the Full Bench can be by majority of its members. The Commissioner who heard the original matter will not be a member of the Full Bench.

Please note that making an appeal to the Full Bench against a decision of the Commission does not automatically suspend the order that you are appealing. To suspend the operation of an order by the Commission, you must make a separate application for a stay of operation. To find more information on applications for stay of operation of order refer to the Related applications tab below.

This is not the case for appealing against a decision of the Industrial Magistrate's Court. An order or judgment of an Industrial Magistrate is automatically suspended (stayed) if an appeal is filed, until such time as the appeal has been heard and determined (see regulation 42 of the Industrial Magistrate's Courts (General Jurisdiction) Regulations 2005 (WA)). Therefore, there is no need to apply for a stay in this situation.

You might like to seek independent legal or industrial advice before commencing an appeal, to ensure you apply the correct provisions of the relevant legislation and use related and significant case references.

How does an appeal to the Full Bench work?

An appeal is not an opportunity to re-run your case. The appeal is heard and determined on the evidence and matters raised in the initial hearing before the Commission or the Industrial Magistrate. This means that generally speaking, you will not be able to call witnesses to give evidence or provide documents to the Full Bench which were not before the Commission or Industrial Magistrate at the initial hearing.

 

The process of an appeal to the Full Bench is as follows:

Step 1 - Filing a notice of appeal: the party seeking to appeal (appellant) submits an appeal form to the Full Bench.

Step 2 - Filing appeal books: the appellant must file their appeal books with the Registry.

Step 3 - Hearing: a hearing is held where the Full Bench decides on the outcome and finalises the case.

How do I submit an application?

To commence an appeal, a Form 8 - Notice of Appeal Against a Decision Made by the Commission or the Industrial Magistrates Court must be filed with the Registry.

Critical information

  • A Form 8 must be instituted within 21 days of the initial decision (s 49(3) of the Industrial Relations Act 1979 (WA)). The date of the decision is taken to be the date when the decision (order) is sealed by the Commissioner and deposited in the Commission’s Registry. In the case of a decision of an Industrial Magistrate, the date of the decision is the date it was delivered.
  • If you fail to submit the form within the prescribed time, you can make an application for extension of time. However, there is no guarantee that the application would be successful. Please see the related applications tab for more information.   

What happens next?

After you have submitted your Form 8 the Commission’s Registry will:

  • check it to make sure that it contains all the required information;
  • if the form is complete, send a copy of it to you for your records; and
  • serve a copy of it on the respondent. There is no need for you to serve your Form 8 on the respondent unless you are instructed to do so.

You must then lodge your appeal books with the Commission's Registry within 14 days of filing.

How do I file an appeal book?

Once you have filed your Form 8, you must then lodge three copies of your appeal book in an approved form and serve a copy of the appeal book on each respondent (see regulation 102(10) of the Industrial Relations Commission Regulations 2005 (WA)). This must be done within 14 days of filing the Form 8.

If you fail to lodge and serve the appeal books within the prescribed time, you can make an application for extension of time. However, by submitting your appeals book out of time, you may risk not being able to have your appeal heard. Please see the related applications tab for more information.

An appeal book must contain:

  • a copy of the Form 8;
  • a copy of the application or reference instituting the proceedings before the Commission/Industrial Magistrate;
  • a copy of any answer or counter-proposal filed in the proceedings;
  • where applicable, a copy of that part or those parts of the settled issues containing the matters relevant to the appeal which were before the Commission/Industrial Magistrate;
  • any written submissions, or outline of submissions, provided to the Commission/Industrial Magistrate;
  • a copy of the decision that is the subject of the appeal and the Commission's/Industrial Magistrate’s reasons for that decision;
  • a list of the page numbers of the transcript of the proceedings at which reference is made to the subject matter of the appeal;
  • a copy of all relevant exhibits tendered during the proceedings; and
  • a copy of any other document which will be required by the Full Bench to determine the appeal, including any further particulars of the claim or answer filed in the proceedings.

In addition, the Chief Commissioner has directed that an appeal book is to contain a contents page, and that all pages within the appeal book are numbered. 

Structure and number of appeal books

The Registrar will not accept an appeal book unless all the pages are clearly legible.

Take particular note that you will need to prepare at least five copies. This includes three copies for the Full Bench, one for each respondent and one for your own use. Appeal books must be bound. The Commission’s preference is that the books are bound in 'comb binding'. It is also requested that one copy that is lodged with the Commission is left unbound to assist in the lodgement and scanning process undertaken within the Registry.

The specific requirements relating to appeal books are outlined in regulation 102(11A) of the Industrial Relations Commission Regulations 2005 (WA)

What happens next?

After the appeal books are accepted by the Commission's Registry, the Registry will:

  • check to make sure that they contain all the required information;  
  • stamp all of the appeal books as 'filed'; and
  • return the respondent's copies to you for service.

You will then be contacted by the Commission to arrange to have your application dealt with.

Written submissions

Practice Note 3 of 2019 – Written and Oral Submissions to the Full Bench provides information on the types of submissions that are made to the Full Bench and the timelines for their submission.

 

For general information on hearings at the Commission, please read the Commission’s hearing fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission’s representation fact sheet by clicking here.

Possible outcomes

The Full Bench may order that the original decision be quashed, amended or affirmed, or refer the application back to the Commission or Industrial Magistrate for further hearing and determination.

Application for stay of operation of order

A decision of a Commissioner continues to have effect even after an appeal against that decision is lodged unless an application to stay the operation of that decision is granted. You may apply for a stay of operation of order using Form 1 - General Application.

An application for a stay is made to suspend the operation of an order of the Commission which requires a party to take some course of action within a certain period of time. For example, as a party to the original application, you may have been ordered to pay a sum of money by a certain date and you are appealing against that order. If you are successful in your application for a stay, you would not need to pay until the appeal has been dealt with by the Full Bench.

After making your appeal to the Full Bench, you may submit to the Commission an application for the original decision to be stayed wholly or in part as needed (regulation 102(6) of the Industrial Relations Commission Regulations 2005 (WA)). You can use the submission of the appeal as a ground to support your application for stay. If granted, the stay will be in effect until the appeal is determined.

An order granting a stay may be made by the presiding Commissioner (either the Chief Commissioner or the Senior Commissioner) under s 49(11) of the Industrial Relations Act 1979 (WA).

Filing an application for stay

You can make an application for stay by filing a Form 1, which must include the grounds in support of your application. 

Grounds to support the application

In Form 1, you will need to satisfy the presiding Commissioner that it is appropriate to grant the stay. This is because ordinarily a successful party is entitled to enjoy the benefit of the order in their favour at first instance.

The grounds in support of an application for a stay should refer to the following:

  • the reason for seeking the stay;
  • the consequences of the stay not being granted (e.g. will the appeal become useless if the stay is not granted?);
  • anything else which affects the balance of convenience if the stay is not granted (i.e. which party will be inconvenienced more if the stay is not granted);
  • whether the appeal has a reasonable prospect of success; and
  • if there are any other special circumstances that support the granting of the stay.
What happens next?

Once filed, the application will be forwarded to the presiding Commissioner's Chambers to be endorsed with procedural directions which are issued to the Registrar of the Commission.

The directions will ordinarily include the date and time by which the Registrar is to serve the application on the parties and a hearing date. The directions may also include a requirement to swear an affidavit setting out the facts which support the application. Usually, the matter is referred to a hearing which will determine the outcome of the application.

Application for an appeal to be 'struck out'

In some cases, a respondent to an appeal may file an application for an appeal to be 'struck out' or dismissed.

In this situation, the respondent to the appeal would become the applicant, and the appellant would be the respondent.

Filing an application for the appeal to be struck out

To make an application for the appeal to be 'struck out' or dismissed, you should file a Form 1A – Multipurpose Form.

You may make this type of application if you are a respondent to the matter, and you take the position that the appeal is incompetent or not within the jurisdiction.

What happens next?

When an application for an appeal to be struck out or dismissed is filed, the Full Bench will consider the application while dealing with the appeal.

Parties will be kept informed by the Commission as to the status of the application, and whether they will be required to attend a hearing.

 

Application for extension of time

A person who has failed to file a Form 8 - Notice of Appeal Against a Decision Made by the Commission or the Industrial Magistrates Court or appeal book within the prescribed time frame may still be able to file an appeal, provided they also file an application seeking an extension of time.

If appellants do not file their appeal within the prescribed time frame, they run the risk of not being able to have their appeal heard. 

Filing an application for extension of time

To make the application, you must file a Form 1A - Multipurpose Form.

Appeals

An application seeking to extend the time to file an appeal to the Full Bench must include grounds which demonstrate sound reasons why the appeal has been filed out of time, and why the Full Bench should grant the application. The granting of leave to extend the time is in no way automatic.

Appeal books

The same extension of time application process is to be followed where an extension of time is required to file appeal books, outside of the 14-day prescribed time period.

What happens next?

When an application seeking to extend the time for lodging an appeal or an appeal book is filed, the Full Bench will consider the application after hearing from the applicant and the respondent. This may be done informally, or by way of a formal hearing. Parties will be kept informed by the Commission as to the status of the application, and whether they will be required to attend a hearing.

Following determination of the application to extend time to file an appeal, the Full Bench will issue relevant orders.

Appealing a decision of the Full Bench

The next level of appeal after the Full Bench is the Industrial Appeal Court (also referred to as ‘IAC’) which is a separate jurisdiction to the Commission. If you are not satisfied with a decision of the Full Bench or the Commission in Court Session, you may be able to appeal the decision to the Industrial Appeal Court. More information can be found here.