Jaggi v City of Parramatta Council [2023] NSWIRComm 1112

Industrial Relations Commission New South Wales Medium Neutral Citation: Jaggi v City of Parramatta Council [2023] NSWIRComm 1112 Hearing dates: 15 November 2023 Date of orders: 15 November 2023 Decision date: 15 November 2023 Jurisdiction: Industrial Relations Commission Before: Commissioner Muir Decision: The appeal in matter 2023/00320804 is dismissed. The appeal in matter 2023/00345303 is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers – Appeal from Industrial Registrar Legislation Cited: Industrial Relations Act 1996, ss 163, 192, 194 Uniform Civil Procedure Rules 2005, r 7.3(1) Work Health and Safety Act 2011, s 229(4) Cases Cited: Secretary of the Department of Planning Industry, and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Vikram Jaggi (Appellant) City of Parramatta Council (Respondent) Representation: Counsel: D Nagle (Respondent)

Local Government NSW (Respondent) File Number(s): 2023/00320804 2023/00345303 Publication restriction: Nil

EX TEMPORE decision 1. These are appeals pursuant to s 194 of the Industrial Relations Act 1996.

Nature of appeals pursuant to s 194 1. Section 194 is headed "Appeal from Industrial Registrar to Commission". The section is found in Part 7 of Chapter 4. Chapter 4 establishes the Industrial Relations Commission of New South Wales and sets out membership, power, procedure, rules and a range of other structures of the Commission. 2. Part 7 sets out, amongst other things: 1. appeals from a single Commissioner to a Full Bench, the nature of such appeals and the powers and procedures on such appeals; 2. appeals, as we have here, from the Industrial Registrar to the Commission; 3. appeals from the Local Court to the Supreme Court; and 4. appeals from decisions of the Commission to the Supreme Court concerning public sector disciplinary appeals. 1. Part 7 also provides for: 1. a single Commissioner to refer a matter to the Chief Commissioner for the Chief Commissioner to determine if the matter should be determined by a Full Bench; and 2. for the Industrial Registrar to refer a matter to the Chief Commissioner for the Chief Commissioner to determine if the Commission and not the Industrial Registrar should determine the matter. 1. Aside from the two sections creating processes for referral from the Industrial Registrar to the Commission or from a Commissioner to a Full Bench, Part 7 deals with appeals, described as such in each case. Part 7 uses the word "appeal", including in s 194. 2. Other than s 194, it is apparent and, indeed, in most cases express, that the appeal is an appeal in the strict sense of the word. The appeal is against a legal error. 3. Section 194 is not without some room for doubt on its face as to whether the appeal is a strict sense appeal or a merits review. 4. The section uses the word "appeal" and not "review". It appears in a part that only deals with strict sense appeals, where that part deals with appeals. As with appeals to a Full Bench in Part 7, new evidence is by leave only. 5. Against that somewhat is that section 194(5) uses language as to what to do after hearing the appeal which is capable of covering merits review. Indeed, other Acts empowering the Commission, for example s 229(4) of the Work Health and Safety Act 2011, use similar if not precisely the same language. 6. However, that language is also used in s 192(1)(a) in respect of appeals to a Full Bench. 7. It is clear to the Commission that s 194, sitting as it does in Part 7, using the word "appeal", creates a strict sense appeal. 8. This also makes sense as otherwise delegation of powers to the Industrial Registrar will more often simply create double the work for the Commission and the parties. The Commission observes that even the powers of reference in Part 7 support this conclusion, as they also ensure an issue is only dealt with once. 9. Accordingly, the Commission will only intervene to correct error which the appellant must bear the onus of establishing warrants the intervention of the Commission. 10. As the appellant expressed, the only difference of substance between an appeal pursuant to s 194 and one pursuant to s 187 of the Act is that no leave is required pursuant to s 194. 11. The parties were on notice the Commission proposed to proceed on this basis and were invited to make submissions against it. They did not do so and, indeed, endorsed the basis of the appeal. 12. The Commission has set out this logic as there do not appear to be any prior decisions of the Commission addressing the issue. 13. Given that the matters now before the Commission are appeals, and in the absence of any guidance to the contrary, the Commission has determined to adopt the jurisprudence of the Commission as to appeals to a Full Bench. 14. The Commission will intervene only to correct a demonstrated error. 15. The other principle to be borne in mind in conducting the appeal here is that the Commission should not be engaged in a search for error, it should not finely sift the conduct and decision of the Industrial Registrar to find error. 16. In summary, it is for the appellant to positively persuade the Commission that demonstrable error infects the decision of the Industrial Registrar.