BEFORE THE WESTERN AUSTRALIAN

   No. 697 of 1986

INDUSTRIAL RELATIONS COMMISSION

 B E T W E E N :

  RONALD THOMAS BELLAMY

         Appellant

        - and -

  CHAIRMAN, PUBLIC SERVICE BOARD

        Respondent

Before the Full Bench

His Honour the President

D.J. O'DEA

Chief Commissioner B.J. COLLIER

Commissioner G.L. FIELDING

The 4th day of September, 1986.

Mr R.T. Bellamy on his own behalf.

Mr G.M. Overman (of Counsel) and with him Mr R.B. Farrelly on

   behalf of the respondent.

REASONS FOR DECISION

 THE PRESIDENT:  This is an appeal against a decision of a single Commissioner whereby an application by the appellant was dismissed on the ground that, as so constituted, the Commission had no jurisdiction in the matter.

 The application was referred to the Commission under s.29(b)(1) of the Industrial Relations Act 1979 (the Act), and concerned an industrial matter, that is that the appellant as an employee has been unfairly dismissed from his employment.

 According to a statement lodged in answer to the claim, the appellant was employed as a temporary officer under the Public Service Act 1978 and it appears beyond dispute, as demonstrated

in the Commissioner's reasons, that he was at the relevant time, by definition, a Government officer within the meaning of the Act.

 On that perception the Commissioner held that in respect of his claim the appellant had access to the appeal provisions set out in the Act in Part IIA, Division 2 and has no recourse, as a Government officer, to the general jurisdiction of the Commission in Part II, Division 2.

 Under Part IIA, Division 2 provision is made for appointment of at least one Public Service Arbitrator within the Commission (s.80D).  Such arbitrator has:-

"exclusive jurisdiction to enquire into and deal with any industrial matter relating to a Government officer..."

                (s.80E)

That latter section is conferred "Subject to Division 3 of Part II", which refers to the Railways Classification Board and is a qualification which is not relevant in these proceedings.

 Provision is also made under Part IIA, Division 2 for Public Service Appeal Boards which, in general, consist of a Public Service Arbitrator as Chairman with a representative appointed by the employer of an appellant and an employee's representative appointed by the relevant organization (s.80H).

 It is material to the claim of the appellant that a Public Service Appeal Board has jurisdiction to hear and determine, inter alia,:-

              "(e) any appeal...by any Government officer...from a decision, determination or                             recommendation of his employer that he be dismissed"

                (s.80I)

 An appeal under s.80I may be instituted by the public servant or other Government officer concerned or by any organization on his behalf (s.80J).

 The appellant's claim is, on the face of it, an industrial matter and it is quite apparent that as he is a Government officer the claim would come within the provisions of Part IIA, Division 2, probably under the appeal provisions of s.80I.

 The appellant attempted to invoke s.29 which permits an employee to refer to the Commission a claim that he has been unfairly dismissed from his employment.  The generality of the Commission's jurisdiction to deal with industrial matters which may be referred is subject to limitations.  The general jurisdiction and powers of the Commission are conferred under Part II, Division 2.  In s.23 it is provided that the Commission in the excerise of a jurisdiction conferred on it by this part shall not:-

              "(d)              regulate the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind;"

 In this regard the Public Service Act 1978 contains provisions of a kind which may impede the Commission's jurisdiction to deal with such matters concerning public servants.  More particularly the Commission's authority to deal with any industrial matter is expressly "subject to the Act" therefore the general jurisdiction of the Commission is necessarily limited by that conferred upon a Public Service Arbitrator which in the case of Government officers is exclusive jurisdiction in respect of industrial matters.  It is apparent that Part IIA, Division 2 gives expression to a legislative intention that claims by Government officers be dealt with by the means provided in that particular division of the Commission and not otherwise since the Public Service Arbitrator has exclusive jurisdiction.  The purpose of framing the legislation in that way is no doubt to achieve uniformity of treatment for Government officers.

 Under earlier legislation, before the amendment which introduced Part IIA, the provisions of s.23 precluded the Commission from exercising jurisdiction to regulate the salary or wages, or the conditions of employment of:-

"any employee who is a Government officer".

At that time the significance of being a Government officer was that matters relating to salary wages and conditions of employment were regulated exclusively by a Public Service Arbitrator under and by virtue of the Public Service Arbitration Act 1966.  The amendments which were introduced by Act No. 94 of 1984 evinced an intention to maintain the position of a separate and exclusive jurisdiction in relation to Government officers, which term was extended to cover as well as every public servant, every other person employed on the salaried staff of a public authority.  As well as provision for the establishment of Public Service Arbitrators with exclusive jurisdiction and for the establishment of Public Service Appeal Boards, the amending Act provided for the repeal of the Public Service Arbitration Act and s.80I substantially replaced s.34 of the repealed Act, the provisions of which covered the only means by which it was then possible for Government officers to obtain redress upon appeal from decisions of the Public Service Board.  Division 2 of Part IIA gives expression to a legislative scheme to abolish the Public Service Arbitration Act and re-enact its provisions as a division of the Commission.

 In addition to those provisions which I have already examined I would refer to s.80G which provides that:-

 "(1)              ...the provisions of Division 2 of Part II that apply to or in relation to the exercise of the jurisdiction of the Commission constituted by a Commissioner shall apply with such modifications as are prescribed and such other modifications as may be necessary or appropriate, to the exercise by an Arbitrator of his jurisdiction under this Act.

 (2)              For the purposes of subsection (1), section 49 shall not apply to a decision of an Arbitrator on a claim mentioned in section 80E(2)."

 I also refer to s.80L which provides:-

"...the provisions of sections 26(1) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 34(3) and (4) and 36 that apply to and in relation to the exercise of the jurisdiction under this Act of the Commission constituted by a Commissioner shall apply, with such modifications as are prescribed and such other modifications as may be necessary, to the exercise by a Board of its jurisdiction under this Act."

 It is highly unlikely that the legislature, in framing the legislation, intended to provide an alternative to the appeal provisions prescribed under Part IIA, Division 2 for a Government officer.  Under the procedure which the appellant sought to invoke pursuant to s.29(b)(1) there is no prescribed manner or time in which to institute a claim moreover it is open to the Commission in such proceedings to award a successful applicant compensation.  It is far from clear whether that course is open in the exercise of the power conferred upon a Public Service Appeal Board to "adjust all such matters".

              In the light of all of the above the question arises whether upon a proper construction of the Act the general provisions of Part II, Division 2 are intended to apply in respect of the subject matter of the special provisions of Part IIA, Division 2, that is to say in respect of a claim relating to dismissal from employment where the aggrieved employee is a Government officer.  In my opinion the Commissioner correctly answered the question when she found she did not have jurisdiction to deal with the claim brought under s.29(2)(b).  She reached that conclusion by the application of the rule generalia specialibus non derogant (see: Statutory Interpretation in Australia, D C Pearce, Second Edition at para. [57]).  In Refrigerated Express Lines (A/Asia) Pty Ltd v. Australian Meat and Live-Stock Corporation and Others (1979-80) 29 A.L.R. 333, Deane J. at 347 referred to the rule in the following terms:-

"As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions.  "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative..." (per Romilly MR: Pretty v. Solly (1859) 26 Beav 606 at 610).  Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions.  It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter."

 It was earlier pointed out in these reasons that the intention that the special provisions should prevail is indicated by inclusion in the general provision of the words "Subject to this Act".

 There is a reference in Pearce (supra) to a particular application of the principle underlying the generalia specialibus approach where there is a grant of power in general terms and specific terms.  It relates to Anthony Hordern & Sons Ltd. v. Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 C.L.R. 1 at 7 in which, in the majority judgment, it was observed:-

"Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when sec. 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing.  When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."

 Pearce also refers to an excerpt from the judgment of Megarry J. in No. 20 Cannon St Ltd v. Singer & Friedlander Ltd [1974] Ch 229 at 235:-

"...the proper principle to apply if an enactment contains two similar prohibitions, one wide and the other applying only to a limited class of case wholly within the wide prohibition, is to treat the wide prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not."

 The Commissioner made reference in her reasons for decision to the case of Maybury v. Plowman (1913) 16 C.L.R. at 473-4 in which the principle involved in the maxim is explained.

 In my opinion the Commission lacked jurisdiction to deal with the particular application before it and the decision to dismiss the application on that ground was correct.  The result must surely be disappointing for the appellant who acted on his own account without legal representation and when his present application was dismissed it was outside the prescribed time to appeal under s.80I.  In this regard I would merely say in passing that according to a statement attached to the answer filed by the respondent, the appellant's employment ceased upon the expiration of a contract of service for a fixed time rather than by termination by the Director of the Office of Industrial Relations as claimed by the appellant.  These, of course, are matters which the Commission has at no stage been empowered to consider.  I propose that the appeal be dismissed.

 THE CHIEF COMMISSIONER:  I have had the advantage of reading the reasons for decision of His Honour, the President.  I, respectfully, generally agree with those views and consider that the appeal should be dismissed.

 COMMISSIONER FIELDING:  I have had the benefit of reading in draft form the reasons for decision prepared by the President.  I agree in substance with those reasons and that the appeal should be dismissed.

 In my view, the Commission as constituted at first instance had as it found, no jurisdiction to entertain the appellant's claim under section 29(b)(i) of the Act.  Section 29 simply dictates who has access to the Commission as ordinarily constituted.  It does not determine what matters the Commission may entertain.  That determination is made by section 23 of the Act.

 Section 23 gives the Commission "cognizance of and authority to enquire into and deal with any industrial matter" except certain matters not currently relevant.  Clearly the dismissal of an employee is an "industrial matter" as defined by section 7 of the Act but the Commission's authority to enquire into and deal with any industrial matter is expressed by section 23 to be "(s)ubject to this Act".  The Act by Division 2 of Part IIA entitled "Public Service Arbitrator and Appeal Boards" makes special provision for the Commission to enquire into and deal with any industrial matter relating to Government officers generally.  Section 80H in that Division establishes Public Service Appeal Boards "within and as part of the Commission".  Those Boards are by section 80I(1)(e) given "jurisdiction to hear and determine" inter alia;  "any appeal, other than an appeal under section 51 of the Public Service Act 1978, by any Government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of his employer that he be dismissed."

 A Government officer for the purposes of the Division is by section 80C defined to mean inter alia "every public servant".

 In my view the clear import of those provisions is that a complaint by a Government officer in respect of his dismissal is to be made to the Commission as constituted by a Public Service Appeal Board and not otherwise.  To suggest that Government officers unlike others have a choice of routes to the Commission would be odd indeed and is not warranted either by the language of the Act nor by its history.  The language is clear.  Section 23 does not give the Commission an absolute warrant to enquire into industrial matters; it is qualified by reference to other provisions of the Act.  (see: Minister for Works and Water Resources -v- Amalgamated Metal Workers and Shipwrights Union of Western Australia (1983) 63 WAIG 1389).  The Act elsewhere makes special provision for industrial matters, in the form of a dismissal of a Government officer from employment, to be dealt with by the Commission constituted by a Public Service Appeal Board.  Consistent with this the Act by section 80J stipulates how such an appeal shall be instituted and by whom.  That section for these purposes can be considered as a substitute for section 29.

 It is trite law that when interpreting an Act it has to be looked at as a whole.  Its separate provisions cannot properly be considered in isolation.  Furthermore, it is well established that when in an Act provision is made for the general and for the particular, the particular overrides the general where there is an inconsistency.  That principle has recently been re-stated in Refrigerated Express Lines (A/Asia) Pty Ltd -v- Australian Meat and Live-Stock Corporation and Other (1979-80) 29 A.L.R. 333.  Hence even if there was some inconsistency between the operation of sections 29 and 80I which I do not accept is the case, the recognised rules of statutory construction would lead to the conclusion that sections 80I and 80J which establish a special remedy for Government officers, in respect of dismissal, override the more general remedy prescribed by sections 23 and 29.

 Furthermore, such a conclusion is consistent with the legislative history surrounding the enactment of the Industrial Relations Act in its present form.  Prior to 1985 when the Acts Amendment and Repeal (Industrial Relations) Act No. 2 of 1984 came into force, Government officers claiming to have been unfairly dismissed did not have recourse to the Commission, but instead to the Public Service Appeal Board as established under and by virtue of section 32 of the Public Service Arbitration Act 1966.  The Public Service Arbitration Act 1966 was repealed by the Acts Amendment and Repeal (Industrial Relations) Act No. 2 of 1984.  In particular section 80I(1)(e) of the Industrial Relations Act 1979 is a re-enactment of the provisions contained in section 32(2)(e) of the Public Service Arbitration Act 1966.  That is entirely consistent with the expressed objects of the provisions contained in the Acts Amendment and Repeal (Industrial Relations) Act No. 2 of 1984 as evidenced in the speech made to the Legislative Council by the Minister for Industrial Relations on the occasion of moving the motion that the Bill leading to that Act be read a second time.  The object of the amending legislation was inter alia, to incorporate the various Public Service tribunals then in existence into the Industrial Relations Commission.  Those tribunals, and in particular the Public Service Appeal Boards, were not abolished or replaced by the Commission but rather re-constituted as part of the Commission.  In those circumstances there is really no warrant in respect of unfair dismissals to interpret the Industrial Relations Act as providing Government officers with access to the Commission other than on the basis of it being constituted by a Public Service Appeal Board.

 On the information produced to the Commission at first instance, it appears that at all material times the appellant was a public servant employed under a contract for a fixed term pursuant to section 30 of the Public Service Act.  He was thus, by definition, a Government officer.  It appears too that he was engaged in the clerical division of the Public Service in an office which carried a salary lower than that "for the time being payable in respect of a position included in the Special Division of the Public Service which by reason of section 80I(2) is the "prescribed salary" level for the purposes of section 80I(1)(e)".  If in fact the appellant was dismissed he therefore had access to the Commission as constituted by the Public Service Appeal Board and not otherwise.

 The indications are that the appellant was not dismissed but rather his employment ended by the effluxion of time.  It seems from the papers filed in the Commission that there was a refusal to re-employ the appellant rather than a dismissal from employment.  If that is the case then whatever might be said of the inter-relationship between sections 23 and 29(b) and the provisions of the Division 2 of Part IIA of the Act, section 29(b) would not entitle the appellant to come before the Commission.  Although a refusal to employ, as with a dismissal from employment, is clearly an "industrial matter" within the meaning of that term as defined by section 7 of the Act,  it is not a matter which an individual can bring before the Commission under section 29(b).  That sub-section is limited to dismissals from employment.  I adhere without re-stating it, to what I said on this subject in Leaper -v- Parry's Department Store (WA) Pty Ltd (1964) 64 WAIG 962,963.

 The appellant included as a ground of appeal an allegation that the Commission did not have regard for section 26(1)(a) and (b) of the Act.  The substance of that ground as I understand it was that since the Commission is bound to act according to equity, good conscience and the substantial merits of the matter, and without regard for legal technicalities the Commission should not in the circumstances ignore any constraints imposed by Division 2 of Part IIA of the Act which might otherwise impede the appellant's application under section 29(b).  However the provisions of section 26 of the Act do not enable the Commission to assume jurisdiction it does not have, rather it is a command to the Commission as to how to approach matters within its jurisdiction.

 The appellant also alleged as a ground of appeal that the respondent did not inform him of the provisions of the Public Service Act.  That question is not an industrial matter and cannot be a valid ground of appeal.  He complained too, that the Commission failed to take cognizance of the fact that he, as an individual, had no standing to take his complaint of unfair dismissal to the Public Service Arbitrator.  It does not follow thereby that he can bring a claim as an individual for the same matter under section 29 of the Act.  As an individual he did have a right to appeal to the Commission constituted by the Public Service Appeal Board assuming he was dismissed rather than refused re-employment.  Under those circumstances he was not denied access to the Commission as an individual as he inferred.

 Finally, the appellant listed as a ground of appeal that he had been denied natural justice.  He did not, however, allege that he had been denied natural justice by the Commission but rather by the Department of Industrial Relations in which department he was employed.  Again, whether that be a valid complaint or not, it must be shown that the Commission has jurisdiction to deal with that complaint.  The Commission may not assume any more jurisdiction than it is given by the Parliament and for the reasons indicated a complaint by a Government officer in respect of dismissal can only be made to the Commission as constituted by a Public Service Appeal Board and then only in accordance with the provisions of the Act.

 It is for the foregoing reasons that I agree that the appeal should be dismissed.

 THE PRESIDENT:  The unanimous decision of the Full Bench is that the appeal should be dismissed.

                                           Order accordingly.

BEFORE THE WESTERN AUSTRALIAN

   No. 697 of 1986

INDUSTRIAL RELATIONS COMMISSION

 B E T W E E N :

  RONALD THOMAS BELLAMY

         Appellant

        - and -

  CHAIRMAN, PUBLIC SERVICE BOARD

        Respondent

Before the Full Bench

His Honour the President

D.J. O'DEA

Chief Commissioner B.J. COLLIER

Commissioner G.L. FIELDING

O R D E R

This matter having come on for hearing before the Full Bench on the 7th day of August, 1986 and having heard Mr R.T. Bellamy on his own behalf and Mr G.M. Overman (of Counsel) and with him Mr R.B. Farrelly on behalf of the respondent and the Full Bench having reserved judgment on the matter and judgment being delivered on the 4th day of September, 1986, wherein the Full Bench unanimously dismissed the appeal and gave reasons therefor, it is this day, the 4th day of September, 1986 ordered that the appeal be dismissed.

                            By the Full Bench

                                PRESIDENT