BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining & Energy Union of Workers & Anor

(2006) 151 IR 361; [2006] WASCA 49

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Industrial Law
2. › Unfair refusal to employ
3. › Procedural fairness on appeal
4. › Departure from agreed basis of case
5. › Denial of right to be heard
6. › Industrial Relations Act 1979 (WA), ss 44, 49, 90(1)(c)
1. Industrial Law
2. › Unfair refusal to employ
3. › Procedural fairness on appeal
4. › Remittal to Commission
5. › Parties agreed to remittal if ground of appeal made out
6. › Failure to alert parties to departure from agreed course
7. › Industrial Relations Act 1979 (WA), ss 49(5), 49(6a)
1. Industrial Law
2. › Retrospective orders
3. › Power to give retrospective effect to order under s 44
4. › Limitation to date of application
5. › Industrial Relations Act 1979 (WA), ss 39(3), 44(13)
1. Industrial Law
2. › Jurisdiction of Industrial Appeal Court
3. › Construction of s 90(1)(b)
4. › Error in construction or interpretation of Act
5. › Whether finding that person not an employee involves error in construction of 'employee' and 'employer'
6. › Industrial Relations Act 1979 (WA), s 90(1)

Quick Take

Where parties to an industrial appeal agree that if a ground of appeal succeeds the matter should be remitted for further hearing, the Full Bench must alert the parties before departing from that agreed course and afford them an opportunity to be heard. The Commission's power under ss 44(13) and 39(3) of the Industrial Relations Act 1979 (WA) to give retrospective effect to an order is limited to the date upon which the application was lodged, and requires a finding of special circumstances. The narrowed s 90(1)(b) jurisdiction of the Industrial Appeal Court does not extend to all errors of law in determining employment status — only errors in the construction or interpretation of the Act itself are appealable, and where the Full Bench correctly understands the statutory definitions and applies them to the facts, no appealable error arises.