The recent District Court decisions of Amana Living v Soliven ("Soliven") [2013] WADC 118 and Hawker Pacific Pty Ltd v Lang ("Lang") [2013] WADC 117 are testament to the troubles occasioned by both the interpretation of the relevant legislative provisions and the procedure associated with Section 61 Notices.
When is a worker deemed to have applied for an order of an Arbitrator?
Soliven appealed an Arbitrator's decision that the 21 day period on receiving a Form 5 (within which the worker had to "apply for an order of an Arbitrator" under section 61(3) of the Act) is satisfied on making an application for conciliation within that time. The Arbitrator also found that any ongoing timing requirements to bring an arbitration application would be dictated by the 28 days allowed under Rule 23 of the Arbitration Rules 2011 (Rules).
The Arbitrator's decision was upheld and the employer's appeal dismissed. This was despite the appeal being based on the interpretation of Regulation 7(3) which provides a distinct requirement that the conciliation period, commencing on the application for conciliation and ending on the issuing of a certificate at the end of the conciliation process, is not to be included in calculating the 21 day period within which a worker may apply for an order under section 61(3) of the Act.
Therefore, the operation of Regulation 7(3) was subordinate to the broader provisions of the Act and Rules.
In Lang, this discrepancy between regulation 7(3), Rule 23 and section 61 was highlighted as something which needed to be resolved.
Lang involved numerous issues, one of which related to the Arbitrator's finding that Regulation 7(3) was void as subsidiary legislation inconsistent with section 61 of the Act.
The learned Judge was not required to address that issue in any detail. Given the grounds of appeal, however, he did suggest the potential alternative position not taken in 'Soliven', namely that the 28 days to file an arbitration application imposed by Rule 23 of the Arbitration Rules could be the more likely provision that is inconsistent with section 61 of the Act.
Therefore Soliven and Lang support the position that Regulation 7(3) is void in the context of the timing requirements in applying for an order of an Arbitrator under section 61 of the Act, albeit that Lang provides some scope to suggest there are discrepancies which need to be addressed, including the application of Rule 23 of the Arbitration Rules.
The current position is that the application for an order of an Arbitrator is said to have taken place on making an application for conciliation within 21 days of service of the Section 61 Notice.
The two authorities also raise the important issue of when an application is deemed to have been made in the context of filing papers with WorkCover.
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