Western Australian Industrial Relations Commission

No access to Commission’s general jurisdiction for redeployed or redundant public sector employees

The Full Bench unanimously dismissed an appeal by a former government officer whose employment ended when he took voluntary redundancy.  For some time, the government officer received an ‘attraction and retention’ allowance, which he said should have resulted in an increase to his severance package of $22,330.64.  He referred the matter to the Commission pursuant to s 95 and s 96A of the Public Sector Management Act, claiming that the Redundancy and Redeployment Regulations were unfairly applied and that he was not allowed a benefit to which he was entitled (the allowance).  In the alternative, the government officer claimed in the Commission’s general jurisdiction that the allowance was a contractual benefit. 

The Hon. Acting President observed that s 95(5) of the PSM Act prevents government officers from referring redundancy and redeployment‑related industrial matters ‘if the employment of the employee concerned is terminated.’  The appellant argued that the word ‘terminated’ means that the employment is ‘terminated’ at the employer’s initiative and that his employment was not ‘terminated’ by the employer as he resigned his employment as part of a severance agreement.  Therefore, he claimed he could still refer the matter to the Commission.  Her Honour held that when the words of s 95(5) are read in context with s 101 of the PSM Act, as they should be, there is no relevant distinction between resignation and termination.  The word ‘terminated’ simply means that the employment ended.  Because the appellant’s employment was terminated, albeit by resignation, he could not refer the matter to the Commission after his employment in the public sector ceased. 

The appellant also argued that the attraction and retention allowance was a contractual entitlement he could claim pursuant to s 29(1)(b)(ii) of the Industrial Relations Act.  He said he could make a claim in the Commission’s general jurisdiction because he was no longer a government officer.  The Hon. Acting President also dismissed this ground.  The Chief Commissioner Scott and Commissioner Emmanuel agreed.  Her Honour found that an industrial matter affecting a government officer is not restricted to employees with a current employment relationship; the employee remains a ‘government officer’ for the purpose of industrial matters arising out of the employment relationship, and all industrial matters relating to government officers come within the exclusive jurisdiction of the Public Service Arbitrator.  However, the Public Service Arbitrator has no jurisdiction to deal with a claim referred under s 95 or s 96A of the PSM Act or a claim for denied contractual entitlements. 

The Hon. Acting President went on to find despite the fact that the Public Service Arbitrator had no jurisdiction to deal with the appellant’s claims, the appellant was prohibited from using the general jurisdiction of the Commission to circumvent the restrictions created by s 95 and s 96A of the PSM Act.  Those provisions create a specific scheme to regulate redeployment and redundancy disputes in the public sector.  A rule of law known as the principle in Anthony Hordern says that when a person is precluded from taking action under a specific scheme, they cannot have recourse to a general scheme as this would frustrate the restrictions in the specific scheme.  As the appellant was prevented from referring a matter under the specific scheme in the PSM Act, he could not refer the same subject matter to the general jurisdiction of the Commission. 

The decision can be read here

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