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Public Service Arbitrator

What is the Public Service Arbitrator?

The Public Service Arbitrator has exclusive jurisdiction to deal with industrial matters relating to government officers. Commissioners are appointed by the Chief Commissioner to be Public Service Arbitrators.

Who can bring a matter to the Public Service Arbitrator?

Government officers and public service officers can make applications to the Public Service Arbitrator. Information on the types of applications that can be made to the Public Service Arbitrator can be found here

 What can the Public Service Arbitrator do?

The Public Service Arbitrator can convene compulsory conferences to endeavour to resolve industrial disputes. If the dispute is not resolved, the Arbitrator may hear and determine the matter and make legally binding orders. 

The Arbitrator also: 

  • registers and amends industrial agreements;
  • makes and amends awards;
  • interprets award and agreement provisions; and
  • deals with disputes about the level of classification of positions.

Public Service Arbitrator Latest News

Applications by scientists for conversion from fixed term contract to permanent employment dismissed

The Public Service Arbitrator has dismissed applications for the conversion of two fixed-term contract employees to permanency on the basis that the employees did not meet the requirements of cl 2.1(a) and cl 11 of Public Sector Commissioner’s Instruction No. 23 (CI 23).

The Public Service Arbitrator, Commissioner Emmanuel, noted that CI 23 provides the pre-conditions that must be met for conversion of employees on fixed term contracts.

The employees are research scientists and have been employed by the Director General, Department of Biodiversity, Conservation and Attractions for over seven years on a series of fixed-term contracts, with the latest both due to expire in mid-2021.

The Director General considered whether the employees were eligible to be converted to permanency under the terms of CI 23, and decided they were not eligible for two reasons:

  1. the reason for the employees’ engagements on a fixed term contract is a circumstance mentioned in the relevant industrial agreement, the Public Service and Government Officers SCA General Agreement (namely, they are working on projects with finite lives), and thus the requirement in cl 2.1(a) of CI 23 was not satisfied; and
  2. the external funding for the employees’ roles could not reasonably be expected to continue beyond the current funding arrangements, and thus the requirement in cl 11(b) was not satisfied.

The employees disputed the Director General’s decision that they were not eligible for conversion to permanency.

Emmanuel C found that the employees were each engaged on a fixed term contract to work on projects with a finite life that were funded only until 2023 or 2024. She found that, as the reason the employees were engaged on a fixed term contract was a circumstance mentioned in the industrial agreement, the requirement in cl 2.1(a) was not satisfied.

Emmanuel C also found that there was no proper basis to ground an expectation that external funding for the roles held by the employees will continue beyond the current funding arrangements, and as such, the requirement in cl 11(b) was not met either.

The applications were dismissed.

The decision can be read here.

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Commission issued declaration that police bargaining has ended

Details  Created: 12 May 2020

The Public Service Arbitrator has issued a declaration under s 42H(1) of the Industrial Relations Act 1979 (WA) (Act) that bargaining has ended for an industrial agreement to replace the Western Australian Police Industrial Agreement 2017.  

The applicant, the WA Police Union of Workers, made an application to the Commission for assistance in bargaining for the making of a new industrial agreement.

Since the commencement of the bargaining process, the Commission has convened eight compulsory conferences and the parties have met for the purposes of negotiation at least fifteen times. All five offers made by the respondent for a new industrial agreement were rejected by the applicant. Despite the endeavours by the parties and the Commission, the parties were unable to reach an agreement.

The Commission is empowered under s 42H(1) of the Act to declare bargaining between the parties has ended, as long as the Commission is satisfied as to a number of matters.

As the Arbitrator, Senior Commissioner Kenner, found that the applicant had bargained in good faith, bargaining had failed and there was no reasonable prospect of reaching an agreement, the Commission issued a declaration under s 42H(1) of the Act that bargaining had ended between the negotiating parties.

The decision can be read here.

Ex tempore decision was issued at the conclusion of proceedings on 29 April 2020. 

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Application for conversion from fixed term contract to permanent employment dismissed

Details  Created: 17 April 2020

The Public Service Arbitrator has dismissed an application for the conversion of a fixed term contract employee to permanency on the basis that the employee did not meet the requirements of clause 2.1(a) of Commissioner’s Instruction No. 23 (CI 23).

Clause 2.1(a) of CI 23 requires that ‘the reason for engagement on a fixed term contract is not a circumstance mentioned in the relevant industrial instruments’.

The Arbitrator noted that a circumstance mentioned in the Public Service and Government Officers General Agreement 2014 and the Public Service and Government Officers General Agreement 2017, which were in effect at the time of the employee’s employment, was for employment on a fixed-term contract to cover a “one-off period of relief”. His operative contract on the 10 August 2018 explicitly stated his fixed term position was a “one-off period of relief” to cover the position of another worker during the period between July and December 2018.

As the contract indicated a reason for his engagement on the contract mentioned in the agreements, he had not met cl 2.1(a) of CI 23 and therefore the Arbitrator found the employee was ineligible for conversion to permanency. 

 

Interpretation of CI 23

The Arbitrator observed that CI 23 had a commencement date of 10 August 2018, and by its scope and application, was limited to persons employed at the time of its commencement. He found it was not intended to apply to future employees.

The Arbitrator found that there was a clear indication that the terms in CI 23 were not intended to have ongoing effect. The Arbitrator found the respondent’s submission correct in that a review of a fixed term contract employee was intended to be a one-off process, and reiterated that the relevant contract to be considered was the contract in place on 10 August 2018, which was the date that the CI 23 was commenced.

The Arbitrator rejected the applicant’s submissions to the effect that the criteria for conversion of a fixed term contract employee is limited to only those matters referred to in cl 2.1. He found that the following requirements, in addition to cl 2.1, must be met:

  1. The employee must be in employment on a fixed term contract at the time of the commencement of CI 23 i.e as at 10 August 2018;
  2. In the case of an employee who was not had a proper assessment of merit one is to be taken under cl 10;
  3. Relevant advertising and recruitment obligations must be satisfied;
  4. Funding for a permanent appointment must be confirmed as required by cl 12; and
  5. If a suitable permanent registrable or registered employee under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 is able to undertake a role, then no offer of conversion to permanency can be made.

The application was dismissed.

The decision can be read here

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Frequently asked questions

A public service officer is a fixed term, permanent or executive officer, who is employed in the Public Service (for a definition of these terms, see Public Sector Management Act 1994). Broadly speaking, the Public Service is made up of departments and other government organisations.

Employees can find out whether they are a public service officer by looking at their letter of appointment. If the employee is appointed as either ‘permanent’ or ‘fixed term’ and the employer is a government department, the employee is probably a public service officer. Employees can also ask their employer’s HR department for details of their appointment.

Not all government employees are public service officers. For example, if an employee is appointed casually, they are probably not ‘public service officers’. Similarly, if an employee is appointed to assist a political office holder, they are not employees of the Public Service, and therefore they are not public service officers.

However, since public service officers are a type of government officer, they are able to make appeals to the Public Service Appeal Board and applications for reclassification to the Public Service Arbitrator as a government officer (For more information see the government officers section). In addition, public service officers can make specific appeals to the Public Service Appeal Board that are not available to other kinds of government officers. These appeals and applications are detailed below.

A government officer is defined in section 80C(1) of the Industrial Relations Act 1979 (WA).

Government officers are:

  • every person employed on the salaried staff of a public authority;
  • public service officers;
  • parliamentary and electoral office staff;
  • members of the Governor’s Establishment; or
  • some employees appointed before 1 March 1985.

 

Government officers are not:

  • teachers;
  • some railway officers; or
  • post secondary academics.