INDUSTRIAL MAGISTRATES COURT OF WESTERN AUSTRALIA

CITATION : 2024 WAIRC 00185

CORAM : INDUSTRIAL MAGISTRATE C. TSANG

HEARD : MONDAY, 19 FEBRUARY 2024

DELIVERED : MONDAY, 29 APRIL 2024

FILE NO. : M 63 OF 2023

BETWEEN : TERENCE TAMIANA

CLAIMANT

AND

TEAM GLOBAL EXPRESS PTY LTD ACN 084 157 666

RESPONDENT

CatchWords : INDUSTRIAL LAW – whether ‘continuous employment with one and the same employer’ has been previously determined – whether the decision of the Full Bench of the Western Australian Industrial Relations Commission is binding on the Industrial Magistrates Court

Legislation : Long Service Leave Act 1958 (WA)

Industrial Relations Act 1979 (WA)

Cases referred

to in reasons: : Baker Hughes Australia Pty Ltd (ABN 20 004 752 050) v Venier [2016] WAIRC 00843

Coghill v Indochine Resources Pty Ltd [2015] FCA 377

Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250

Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194

FP Group Pty Ltd v Tooheys Pty Ltd [2013] FWCFB 9605

Gibbs v Woodside Energy Limited (ABN 63 005 482 986) [2023] WAIRC 00930

Griffith v Australian Broadcasting Corporation [2003] NSWSC 298

McGee v Yeomans [1977] 1 NSWLR 273

Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90

Keramaniakis v Wagstaff [2005] NSWDC 14

Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175

Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148

Proctor v Jetway Aviation [1984] 1 NSWLR 166

Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44

Valentine v Eid (1992) 27 NSWLR 615

Viro v The Queen [1978] HCA 9

Result : Claim dismissed

Representation:

Claimant : Mr N Ellery (of counsel)

Respondent : Mr S Pack (of counsel)

REASONS FOR DECISION

Background

1         On 27 April 2023, the claimant (Mr Tamiana) filed an Originating Claim seeking $6,862.26 for pro‑rata long service leave, asserting continuous employment by the respondent (Team Global) and its predecessor, Toll Transport Pty Ltd (Toll Transport) from 23 February 2015 to 24 May 2022, a period of seven years, three months, and two days.

2         On 30 May 2023, Team Global filed a Response, contending that:

(a) Mr Tamiana was employed by:

(i) Toll Personnel Pty Ltd (Toll People) from 23 February 2015 to 13 March 2016.

(ii) Toll Transport from 14 March 2016 to 31 July 2021.

(iii) Team Global from 31 July 2021 to 24 May 2022.

(b) In July 2021, the Global Express Division of Toll Holdings Limited was transmitted to Team Global. Team Global accepted that Mr Tamiana’s service with Toll Transport was continuous with his employment with Team Global, but did not recognise his prior service with Toll People. Consequently, Mr Tamiana did not meet the requisite threshold of seven or more years’ of ‘continuous employment with one and the same employer’ to qualify for pro‑rata long service leave under s 8 of the Long Service Leave Act 1958 (WA) as applicable on 24 May 2022 (LSL Act): Baker Hughes Australia Pty Ltd v Venier [2016] WAIRC 00843 (Baker Hughes).

The evidence

3         On 31 October 2023, the parties filed a statement of agreed facts, which was subsequently updated on 17 January 2024, stating:

1. The Claimant, Terence Tamiana, was employed as a casual Forklift Operator by Toll Personnel Pty Ltd (Toll People) from on or about 23 February 2015 until 13 March 2016, being a period of 1 year and 21 days.

2. The Claimant was offered and accepted employment as a full-time permanent Forklift Operator by Toll Transport Pty Ltd (Toll Transport) from 14 March 2016 to 31 July 2021, being a period of 5 years, 4 months and 17 days.

3. The Claimant was employed as a full-time permanent Forklift Operator by the Respondent, Team Global Express Pty Ltd (Team Global Express), from 31 July 2021 to 24 May 2022, being a period of 9 months and 24 days.

3A. During his employment with both Toll People and Toll Transport, the Claimant:

(a)  worked at the Toll Express Yard, located at Perth Airport, Western Australia; and

(b)  undertook duties as a Forklift Operator.

4. Toll People and Toll Transport were at all material times wholly owned subsidiaries of Toll Holdings Ltd (Toll Holdings). Toll Holdings was the holding company for all companies within the Toll Group.

5. In mid-2021, Toll Holdings sold (Sale) its Global Express Division (including Toll Transport, but not Toll People) to Allegro Funds Pty Ltd (Allegro).

6. Allegro operated the former Toll Global Express Division through IPEC Pty Ltd (trading as Team Global Express).

7. On or about 13 July 2021, Toll Holdings sent the Claimant a letter about the Sale.

8. The Respondent recognised the Claimant’s prior service with Toll Transport as being continuous employment with the Respondent.

9. The Respondent did not recognise the Claimant’s prior service with Toll People as being continuous employment with the Respondent for the purpose of calculating the Claimant’s long service leave entitlements.

10. After the 31 July 2021 transfer date, the Claimant continued to:

(a) work in the same workplace at the Toll Express yard, located at Perth Airport, Western Australia; and

(b) undertaking the same duties as a Forklift Operator.

11. The Toll Group - TWU Enterprise Agreement 2013-2017 operated from 12 November 2013.

12. The Toll Group - TWU Enterprise Agreement 2013-2017 applied to the Claimant during his employment by Toll People and during his employment by Toll Transport until 14 December 2017.

13. Toll - TWU Enterprise Agreement 2017-2020 operated from 15 December 2017.

14. Toll - TWU Enterprise Agreement 2017-2020 applied to the Claimant during his employment by Toll Transport from 15 December 2017.

15. The Toll Group - TWU Enterprise Agreement 2013-2017 and the Toll - TWU Enterprise Agreement 2017‑2020 provided that:

(a) ‘Toll’ means Toll Holdings and each of its wholly-owned subsidiaries which employs a Transport Worker.

(b) ‘Transport Worker’ means any person who is eligible to be a member of the Union [Transport Workers’ Union] and who is employed by Toll in Australia in any of the classifications contained in the Award or in a [relevant] Local Agreement.

(c) The Agreement applied to and is binding on Toll, all Transport Workers and the Union.

(d) Transport Workers will be entitled to accrue and to take long service leave in accordance with applicable State legislation.

16. The Global Express - TWU Enterprise Agreement 2021-2023 applied to the Claimant during his employment with the Respondent up to 24 May 2022.

17. The Claimant ceased employment with the Respondent on 24 May 2022.

18. Since the conclusion of the Claimant’s employment with the Respondent, the Respondent has not paid to the Claimant any amount in respect of any accrued long service leave entitlements because the Respondent does not recognise the Claimant’s service with Toll People as being continuous employment with the Respondent, and says he is therefore not entitled to a payment of long service leave.

19. On or about September 2022, Toll IPEC rebranded and changed its company name to ‘Team Global Express Pty Ltd’.

The parties’ contentions

4         Mr Tamiana submits that:

(a) His employment with Toll People and Toll Transport involved the same job, location, duties and functions, with the only change from Toll People to Toll Transport being a transition from casual to full-time employment.

(b) Toll People and Toll Transport were both wholly owned subsidiaries of Toll Holdings. ASIC company extracts indicate that at the relevant time, Toll People and Toll Transport had the same shareholder (Toll Holdings) and registered address, and all five directors of Toll People were also directors of Toll Transport, with Toll Transport having a larger board comprising of six additional directors.

(c) The same enterprise agreement applied to his employment with both Toll People and Toll Transport.

(d) Having regard to these facts, and applying a purposive and beneficial interpretation of the LSL Act, the phrase ‘continuous employment with one and the same employer’ should be construed as referring to one employer in substance, rather than one legal entity employer.

(e) Authorities discussing concepts of joint employment and pro hac vice support ‘employer’ being given a broad or expansive term to include two legal entities: Coghill v Indochine Resources Pty Ltd [2015] FCA 377, Kelly v Bluestone Global Ltd (in liq) [2016] WASCA 90, Placer (Granny Smith) Pty Ltd v Specialised Reline Services Pty Ltd [2010] WASCA 148, Deutz Australia Pty Ltd v Skilled Engineering Ltd [2001] VSC 194.

(f) Whilst Baker Hughes is highly persuasive and relevant for the Industrial Magistrates Court (IMC), it is not binding on the IMC because:

(i) Neither the Industrial Relations Act 1979 (WA) (IR Act) nor any other Act states that decisions of the Full Bench of the Western Australian Industrial Relations Commission (Full Bench) are binding on the IMC.

(ii) The IMC is a court whilst the Full Bench is not.

(iii) Reference to the IMC being bound by a Full Bench decision in Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175 (Melrose) was obiter.

(g) If the majority in Baker Hughes is taken to be stating that in any factual scenario, where there is more than one entity, that they cannot be ‘one and the same employer’, then the majority are wrong.

(h) Whilst the majority in Baker Hughes expressed their views on the meaning of ‘one and the same employer’ in absolute terms, Baker Hughes was decided based on the facts as outlined at [4] of that decision. Baker Hughes did not consider any different factual scenarios, including the circumstances of Mr Tamiana’s employment, which dramatically contrast to those in Baker Hughes.

5         Team Global submits that:

(a) The decision of the Full Bench in Baker Hughes is binding on the IMC: Melrose
[27]-[28] and Keramaniakis v Wagstaff [2005] NSWDC 14 (Keramaniakis) [50]-[58].

(b) Section 12(1) of the IR Act provides that the Western Australian Industrial Relations Commission (Commission), and the Full Bench, are a court of record.

(c) Section 84 of the IR Act provides that an appeal lies from a decision of the IMC to the Full Bench, thereby creating an appellate hierarchy: Keramaniakis [50]-[56].

(d) The Full Bench in Baker Hughes determined a point of law and the IMC is bound to follow a decision of the Full Bench on a point of law: Keramaniakis [56].

(e) The Full Bench in Baker Hughes found, as a matter of statutory construction, that ‘one and the same employer’:

(i) Is not ambiguous: [87].

(ii) Should not be construed in the plural: [87].

(iii) Means continuous employment with a single employer: [90].

(iv) Are words of limitation; limiting the meaning of ‘employer’ to the singular: [90].

(v) Allow no ‘room to read the words qualifying continuous employment in s 8(1) of the LSL Act … when the employer is a company, as encompassing and including any related bodies corporate’: [91].

(f) Mr Tamiana’s contention that ‘one and the same employer’ should be construed as referring to one employer in substance is inconsistent with, and contrary to, the decision of the Full Bench in Baker Hughes. As such, this contention must be rejected.

(g) The concepts of joint employment and pro hac vice do not support Mr Tamiana’s construction for the following reasons:

(i) Joint employment is a development of the common law that has not been accepted by any Australian court, as noted in FP Group Pty Ltd v Tooheys Pty Ltd [2013] FWCFB 9605 [40]‑[45]. Furthermore, the LSL Act specifically refers to ‘one and the same employer’, which is inconsistent with the concept of joint employment.

(ii) The doctrine of pro hac vice concerns vicarious liability and whether the actions of a worker may be attributed to someone other than their employer: Day v The Ocean Beach Hotel Shellharbour Pty Ltd [2013] NSWCA 250 [14]-[15], [23]-[33]. Under the doctrine, liability is singular and shifts from one entity to another, rather than being shared, joint or multiple.

(h) Although Mr Tamiana’s location and duties of work remained substantially the same during his employment with Toll People and Toll Transport, his employment status changed from casual to permanent, which constitutes a significant difference. The fact that a single enterprise agreement covered his employment with both Toll People and Toll Transport is reflective of their status as related entities, and in any event, this argument was rejected by the Full Bench in Baker Hughes. Moreover, the ASIC company extracts reveal a difference in the directorship between Toll People and Toll Transport, which would be relevant to any consideration of the degree of control exercised between the two entities.

Consideration

6         The parties agree that:

(a) The central issue for determination is whether Mr Tamiana’s employment with Toll People and Toll Transport constituted ‘continuous employment with one and the same employer’ under s 8 of the LSL Act.

(b) The applicable principles for statutory construction are those outlined in Gibbs v Woodside Energy Limited (ABN 63 005 482 986) [2023] WAIRC 00930 [36].

(c) The principles relevant to Mr Tamiana’s claim are at Baker Hughes [87]‑[91].

(d) The majority in Baker Hughes found at [90]-[91] that:

90 When regard is had to all of these textual indications in the LSL Act it is plain that the words continuous employment with ‘one and the same employer’ means continuous employment with a single employer. As the appellant points out in its supplementary submissions, this meaning is consistent with the definition of the phrase ‘one and the same’ in The New Shorter Oxford English Dictionary on Historical Principles (4th ed, 1993) which is ‘one and the same, (arch.) the selfsame the same, the identical’. As the appellant points out the words ‘one and the same’ are words of limitation; that is, those words limit the meaning of the word ‘employer’ to the singular.

91 Consequently, there is no room to read the words qualifying continuous employment in s 8(1) of the LSL Act with ‘one and the same employer’ when the employer is a company, as encompassing and including any related bodies corporate.

7         By virtue of the matters in [6] above, I agree with Team Global’s submission that if the decision of Baker Hughes has determined the statutory construction of ‘one and the same employer’ under the LSL Act and is binding on the IMC, then Mr Tamiana’s claim must fail.

8         Therefore, the principal issues to be determined are:

(a) Did Baker Hughes determine the statutory construction of ‘one and the same employer’ under the LSL Act?

(b) Is Baker Hughes binding on the IMC?

9         If either of the issues in [8] above are answered in the negative, the following further matters require consideration:

(a) The proper construction of ‘one and the same employer’ under the LSL Act, and the application of this construction to Mr Tamiana’s employment.

(b) Whether Baker Hughes should be followed as a matter of judicial comity unless wrong: Keramaniakis [49].

(c) The parties’ arguments regarding the principles of joint employment and pro hac vice.

Issue one: Did Baker Hughes determine the statutory construction of ‘one and the same employer’ under the LSL Act?

10      The decision in Baker Hughes involved an appeal against a decision of the IMC, instituted under s 84(2) of the IR Act. The appeal was based on the grounds that the Industrial Magistrate erred in answering the following preliminary question in the affirmative: Baker Hughes [1]-[3]:

Is the applicant’s (claimant’s) prior employment with related body corporates (as that term is defined in section 50 of the Corporations Act (Cth)) of the respondent, and his subsequent employment with the respondent, ‘continuous employment with one and the same employer’ for the purposes of calculating long service leave entitlements under section 8(1) of the Long Service Leave Act 1958 (WA)?

11      There were nine grounds of appeal: Baker Hughes [24]:

1. In the absence of any reference to the concept of ‘related body corporate’ or the Corporations Act 2001 (Cth) in the Long Service Leave Act 1958 (WA), the learned Magistrate’s construction is inconsistent with:

(a) the principle that the task of statutory construction must both begin and end with the statutory text; and

(b) the requirement that a court construe a written law and not rewrite it by reference to its purpose or objects.

2. The learned Magistrate erred in concluding that it was of considerable significance to the construction of the phrase ‘one and the same employer’ that the definition of ‘employer’ in the Long Service Leave Act is framed in plurals because:

(a) the definition of ‘employer’ in section 4(1) of the Long Service Leave Act applies ‘unless the context requires otherwise’ and the context given by ‘one and the same’ requires otherwise; and

(b) further and alternatively, section 10(c) of the Interpretation Act provides that ‘words in the singular number include the plural and words in the plural number include the singular’.

3. The learned Magistrate erred in concluding that the meaning of the expression ‘one and the same employer’ is obscure when the expression is actually an emphatic reference to a single legal entity and this error, in turn, led the learned Magistrate to err by having regard to extrinsic materials pursuant to section 19(1)(b)(i) of the Interpretation Act.

4. Alternatively to ground 3:

(a) the learned Magistrate should not have given consideration to the extrinsic materials referred to by the learned Magistrate because of the desirability of persons being able to rely on the ordinary meaning conveyed by the text of a provision as specified in section 19(3)(a) of the Interpretation Act, and

(b) further and alternatively, the learned Magistrate should not have taken the extrinsic materials into account because they did not correctly state the law as provided in the Long Service Leave Act.

5. The learned Magistrate erred in concluding that it was necessary to give the phrase ‘one and the same employer’ a liberal interpretation because the Long Service Leave Act is beneficial legislation when the Magistrate should have concluded that ‘one and the same’ are words of limitation which should be interpreted according to their terms.

6. The learned Magistrate erred in concluding that employment with a related body corporate was an implied exception to the requirement that employment must be for ‘one and the same employer’ when the Long Service Leave Act already provides for an express exception to this requirement in section 6(4) of the Act and so no other exception could be implied.

7. Given that the Parliament did not amend section 8(1) in 2006, the learned Magistrate:

(a) erred in construing section 8(1) by reference to Parliament’s intention in 2006 rather than Parliament’s intention when section 8(1) was enacted; and

(b) further and alternatively, erred in concluding that the meaning of section 8(1) changed in 2006.

8. The learned Magistrate erred in ‘reading in’ words to the Long Service Leave Act to address the Parliament’s perceived ‘inadvertent oversight’ in failing to amend section 8(1) in 2006 because:

(a) it was not permissible for the learned Magistrate to ‘read in’ the concept of a ‘related company’ to fill a perceived gap in the legislation; and

(b) further and alternatively, the learned Magistrate erred in concluding that it was possible to state with certainty the words which the Parliament would have used to address the perceived oversight.

9. The learned Magistrate erred in ‘reading in’ to the Long Service Leave Act the definition in section 50 of the Corporations Act when:

(a) section 8(1) of the Long Service Leave Act was enacted prior to section 50 of the Corporations Act and so the Parliament could not have intended section 50 of the Corporations Act was to be ‘read in’ to section 8(1) of the Long Service Leave Act when section 8(1) was enacted;

(b) further and alternatively, the term ‘read in’ by the learned Magistrate was ‘related company’ and section 50 of the Corporation Act defines when ‘bodies corporate’ are related; and

(c) further and alternatively, it is not permissible to ‘read in’ to Western Australian legislation a definition enacted by another Parliament, namely the Commonwealth Parliament.

12      On a plain reading of the matters outlined in [10]-[11] above, in particular the appeal grounds and the references therein to the Industrial Magistrate erring in the construction of the phrase ‘one and the same employer’, I find that Baker Hughes involved the Full Bench determining the proper construction of the phrase ‘one and the same employer’ under the LSL Act.

13      The finding in [12] above is supported by the following passages:

(a) Baker Hughes [9] (emphasis added):

The respondent’s argument about the proper construction of the words ‘one and the same employer’ in s 8(1) of the LSL Act turns substantially on the effect of amendments made to the LSL Act in 1995 and 2006.

(b) Baker Hughes [38] (emphasis added):

Another issue that must be considered is the definition of ‘employer’ in s 4(1) of the LSL Act is expressed to be defined not by the word ‘means’ but by the word ‘includes’. In Du Buisson Perrine v Chan [2016] WASCA 18 Newnes JA observed [56] - [57]:

It is the case that where ‘includes’ (as opposed to ‘means’) is used in a statutory definition it will ordinarily not be intended to be exhaustive but rather simply to enlarge the ordinary meaning of the term to bring within it something that would otherwise not be within it: Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327 [106]; Transport Accident Commission v Hogan [2013] VSCA 335 [47]. It may also be used to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases: Corporate Affairs Commission (SA) v Australian Central Credit Union (1985) 157 CLR 201, 206 - 207.

Nevertheless, ‘includes’ may be exhaustive if the context in which it appears reveals that intention: YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395, 398 - 399, 402; Dilworth v Commissioner of Stamps [1899] AC 99, 106. Ultimately the question is always one of the proper construction of the statute.

(c) Baker Hughes [39] (emphasis added):

That is, whether the word ‘includes’ is intended to enlarge the matters defined turns on what is the proper construction of the definition. Consequently, in this matter the intention conveyed by the words ‘one and the same employer’ in s 8(1) of the LSL Act is to be determined by:

(a) whether the definition of ‘employer’ in s 4(1) of the LSL Act should be construed as singular or plural, and, in any event, regard is to be had to the definition as an aid to the construction of the material words in s 8(1) of the LSL Act and not as an independent substantive enactment without being read as part of s 8(1); and

(b) within the context of the LSL Act as a whole having regard to the general purpose and policy of the provision and history of legislative amendments to the LSL Act, including extrinsic materials. As Buss JA said in Van Heerden, when undertaking this task of construction the statutory language is paramount [102].

(d) Baker Hughes [81] (emphasis added):

Of importance is an acknowledgement in cl 271 that prior to the enactment of the 2006 amendments the entitlements offered under the LSL Act and the LSL General Order were not the same. Leaving aside for the moment whether proper construction of the words in s 8(1) of the LSL Act ‘one and the same employer’ did not encompass service by related companies, this statement does not state that it was intended to consolidate the LSL General Order into the LSL Act, only that such a recommendation had been made by Fielding C in the review he conducted of labour relations legislation in 1995.

14      The finding in [12] above is also supported by the following:

(a) The parties agreed that the principles relevant to Mr Tamiana’s claim are at Baker Hughes [87]‑[91].

(b) The section of Baker Hughes in which [87]-[91] is contained, is headed ‘Proper construction of words “one and the same employer”’.

(c) The conclusion reached by the majority in Baker Hughes, under the heading of the ‘proper construction of words “one and the same employer”’, appears at Baker Hughes [90]-[91] and is cited in full in [6(d)] above.

15      For the reasons in [10]-[14] above, I find that Baker Hughes determined the statutory construction of ‘one and the same employer’ under the LSL Act.

Issue two: Is Baker Hughes binding on the IMC?

16      Team Global accepts Mr Tamiana’s submission that Pullin J’s statement in Melrose [27], ‘The Industrial Magistrate in this case was obliged to follow the Full Bench decision in the Pinnacle Services case’, was a ‘throwaway line’, and that his Honour did not provide reasons as to why the Industrial Magistrate was obliged to follow the Full Bench’s decision in that matter.

17      Team Global relies on Keramaniakis in contending that Baker Hughes is binding on the IMC.

18      Keramaniakis involves the issue of ‘whether a District Court judge is bound to follow a judgment of a single judge of the NSW Supreme Court as a matter of precedent in its strict sense (ie obliged to follow, whatever the Court’s own inclinations may be…)’: [48].

19      At Keramaniakis [49], Rein DCJ states that it is not in dispute that he should, as a matter of judicial comity, follow Griffith v Australian Broadcasting Corporation [2003] NSWSC 298 (Griffith), a decision of Levine J, a single judge of the NSW Supreme Court, unless he was convinced that Levine J’s judgment was wrong: Valentine v Eid (1992) 27 NSWLR 615 (Valentine) at 620.

20      At Keramaniakis [49], Rein DCJ states that Valentine was ‘a decision of Grove J in which he concluded that a magistrate was not bound as a matter of precedent by a decision of the District Court but that judicial comity applied.’ His Honour also states that ‘[o]ne of the matters which Grove J regarded as important in coming to that decision is that the District Court is not a superior court of record.’

21      At Keramaniakis [50], Rein DCJ states that a Supreme Court judge sitting alone, and a judge of the District Court, are bound to follow a decision of the Court of Appeal, because, in ‘each case, the judgment is one which can be taken on appeal to the Court of Appeal’:

There can be no doubt that a judge of the Supreme Court sitting alone is bound to follow a decision of the Court of Appeal where the facts of the case are relevantly indistinguishable from the facts in the case before the Court of Appeal: see Proctor v Jetway Aviation [1984] 1 NSWLR 166 [Proctor], and a fortiori this applies to judges of the District Court. In each case, the judgment is one which can be taken on appeal to the Court of Appeal.

22      At Keramaniakis [52], Rein DCJ states that in Proctor, the Court of Appeal was dealing with a decision of a single judge of the Supreme Court (Cross J) in which an earlier decision of the Court of Appeal (McGee v Yeomans [1977] 1 NSWLR 273 (McGee)) was not followed.

23      At Keramaniakis [54], Rein DCJ cites the following passage of Priestley JA in Proctor, 185:

That proposition [enunciated in McGee] therefore become part of the Court of Appeal’s decision and by reason of the system of precedent operative in this State it was a proposition which Cross J was bound to regard as the law. The system of precedent requires that judges apply the law as laid down by courts to which appeals lie from them, mediately or immediately, and whether or not they agree with that law.

24      At Keramaniakis [56], Rein DCJ states that ‘the hierarchy of precedent has within it the indispensable requirement of appeal (mediately or immediately)’ and is echoed in the High Court decision of Viro v The Queen [1978] HCA 9 (Viro). His Honour cites the following passages from Viro and Trident General Insurance Co Ltd v McNiece Brothers Pty Ltd [1988] HCA 44 (Trident):

That the hierarchy of precedent has within it the indispensable requirement of appeal (mediately or immediately) is echoed in Viro v The Queen (1976-1978) 141 CLR 80 in the judgment of Barwick CJ:

‘The essential basis for the observance of a decision of a tribunal by way of binding precedent is that the tribunal can correct the decisions of the court which is said to be bound’ (at p83),

and in the judgment of Stephen J:

‘The first duty of a court is to administer justice according to law. However, in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as that precedent authority has declared it to be, whatever may be its own inclinations in the matter. The sanction implicit in the doctrine of precedent is simple and effective: if an inferior court fails to observe the doctrine the superior court will correct its decision on appeal. Thus the existence of an appeal is inherent in and essential to the doctrine’ (at p129),

and in the words of Brennan J in Trident General Insurance Co Limited v McNiece Brothers Pty Limited (1988) 165 CLR 107 at 129-130:

‘Courts are bound to apply the principles laid down by court higher in the appellate hierarchy and observance of the rule avoids the futility of delivering judgments which will be reversed on appeal.’

25      At Keramaniakis [59], Rein DCJ concludes that he was not bound to follow the decision of Levine J in Griffith, because there is no appeal from a decision of the District Court to a single judge of the Supreme Court: Keramaniakis [58]:

[A] judge of this Court is not bound by a decision of a single judge of the Supreme Court, because even though the District Court is not a court of record and is an inferior court in the curial hierarchy to the Supreme Court, there is no appeal from a decision of this Court to a single judge of the Supreme Court. I accept, of course, that any decision of a single judge of the Supreme Court is entitled to considerable respect and ought be followed unless after due consideration of it, this Court is convinced that it is wrong, for example because some relevant matter or case was not brought to the Supreme Court judge’s attention. I would regard that principle, which might be described as a broad principle of comity, as extending to judgments of all Australian Superior Courts.

26      Unlike Keramaniakis where there is no appeal from a decision of the District Court to a single judge of the Supreme Court, s 84(2) of the IR Act expressly outlines the indispensable requirement of appeal (Keramaniakis [54], [56]) and appellate hierarchy (Trident as cited in Keramaniakis [56]) from IMC decisions to the Full Bench. Section 84(2) of the IR Act states:

84.  Appeal from industrial magistrate’s court to Full Bench

…

(2)  Subject to this section, an appeal lies to the Full Bench in the manner prescribed from any decision of an industrial magistrate’s court.

27      Furthermore, unlike Keramaniakis [58] where Rein DCJ states that the District Court is not a court of record, and contrary to Mr Tamiana’s submission that the Full Bench is not a court, s 7, s 12, s 15, s 81(1) and s 81(2) of the IR Act expressly state that the Commission, the Full Bench, and the IMC are all courts of record:

(a) Section 7 of the IR Act defines the Commission, and the Full Bench, as follows:

Commission means the body continued and constituted under this Act under the name of The Western Australian Industrial Relations Commission;

Full Bench means the Commission constituted as provided by section 15(1);

(b) Section 15(1) of the IR Act states:

15.  Constitution of Full Bench and Commission in Court Session

(1)  The Full Bench is to be constituted by 3 commissioners, at least 1 of whom must be the Chief Commissioner or the Senior Commissioner, sitting or acting together.

(c) Section 12 of the IR Act states:

12.  Commission is court of record etc.

(1)  The Commission is a court of record and must have an official seal.

(2)  All courts, judges, and persons acting judicially must take judicial notice of the seal of the Commission affixed to a document and must presume that it has been duly so affixed.

(d) Sections 81(1) and 81(2) of the IR Act states:

81.  Industrial magistrate’s courts established

(1)  The Governor may by proclamation establish an industrial magistrate’s court at any place within the State.

(2)  An industrial magistrate’s court is a court of record and must have an official seal of which judicial notice must be taken.

28      For the reasons outlined in [17]-[27] above, I find that where the Full Bench has determined a matter of law, that Full Bench decision is binding on the IMC: Trident as cited in Keramaniakis [56] (emphasis added):

The first duty of a court is to administer justice according to law. However, in the case of an inferior court operating within a system where the doctrine of precedent applies, the existence of authority binding upon it determines for it what it must understand to be the law. It must accept the law to be as that precedent authority has declared it to be, whatever may be its own inclinations in the matter.

29      I agree with Team Global’s submission that statutory construction is unquestionably a matter of law.

30      As I have found at [15] above, the Full Bench in Baker Hughes has construed the phrase ‘one and the same employer’ under the LSL Act, which is a matter of law. Consequently, I am bound to follow Baker Hughes when determining Mr Tamiana’s claim.

31      The Full Bench in Baker Hughes [90] held that ‘one and the same employer’ means continuous employment with a single employer, and the words ‘one and the same’ are words of limitation, limiting the word ‘employer’ to the singular. Accordingly, I agree with Team Global’s submission that Mr Tamiana’s contention, which asserts that ‘employer’ should be given a purposive and beneficial interpretation and be construed as referring to one employer in substance rather than one legal entity employer, must be rejected.

32      The Full Bench in Baker Hughes [91] determined that the phrase ‘one and the same employer’ cannot be construed to include related bodies corporate. Therefore, it is not possible to construe ‘one and the same employer’ as including Mr Tamiana’s employment with Toll People.

33      For the reasons outlined in [28]-[32] above, I find that both issues identified in [8] above are answered in the affirmative. Accordingly, for the reasons outlined in [7] above, Mr Tamiana’s claim cannot succeed. As a result, it is unnecessary to consider the issues raised at [9] above.

Conclusion

34      For the preceding reasons, I find that the Full Bench in Baker Hughes determined the statutory construction of the phrase ‘one and the same employer’ under the LSL Act as employment with a single entity only, allowing no scope to construe the phrase as including related bodies corporate.  

35      Furthermore, for the preceding reasons, I find that Baker Hughes is binding on the IMC.

36      Therefore, Mr Tamiana’s claim that his employment with Toll People and Toll Transport constitutes ‘continuous employment with one and the same employer’ under s 8 of the LSL Act cannot succeed.

37      Accordingly, Mr Tamiana’s claim will be dismissed.

C. TSANG

INDUSTRIAL MAGISTRATE