2001 WAIRC 04042
100106604
AGAINST THE DECISION TO TERMINATE MADE ON 5/1/2001

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION


PARTIES MARGARET SUSAN THOMAS
APPELLANT
-V-

CHIEF EXECUTIVE OFFICER, MINISTRY OF FAIR TRADING
RESPONDENT
CORAM PUBLIC SERVICE APPEAL BOARD
COMMISSIONER P E SCOTT - CHAIRPERSON
MS D ROBERTSON – BOARD MEMBER
MR B APPLEBY – BOARD MEMBER
DELIVERED MONDAY, 29 OCTOBER 2001
FILE NO PSAB 1 OF 2001
CITATION NO. 2001 WAIRC 04042

_______________________________________________________________________________
Result Application dismissed for want of jurisdiction
Representation
APPELLANT MR B CUSACK

RESPONDENT MS L COLEMAN

___________________________________________________________________________


Reasons for Decision

COMMISSIONER P E SCOTT AND MR B APPLEBY

1 This is an appeal to the Public Service Appeal Board (“PSAB”) filed on 16 January 2001 against what the appellant says was a decision to terminate her employment made on 5 January 2001. She occupied a position which carried a salary lower than the “prescribed salary” as defined within the Public Sector Management Act 1994 (“PSM Act”). The appellant was at all material times a Government officer. There is no dispute that the appellant’s employment was subject to a probationary period and was also subject to a workplace agreement registered pursuant to the Workplace Agreements Act 1993 (“WA Act”). The Workplace Agreement made no specific provision for any claims regarding termination of employment to be referred to any particular body or to apply any particular procedure. The appellant’s letter of appointment dated 25 May 2000 says, amongst other things:

“I am pleased to advise that your appointment to the above office has been approved …

A six-month probationary period will apply to this appointment and an assessment will be made at that time.” (Exhibit 1)


2 The probationary period was extended beyond that six months probation period.
3 A memorandum dated 5 January 2001 addressed to the appellant from Patrick Walker, Chief Executive, on the subject of “Termination of Probation”, deals with issues of work performance such as the time taken to finalise particular files, says that the appellant’s “capacity to analyse issues succinctly and bring issues to closure has been the primary problem”, and concludes by noting that:

“Overall I do not believe the information you have provided gives me sufficient reason to extend your employment with the Ministry beyond today. Accordingly, I have asked Anne Driscoll to arrange the necessary administrative arrangements to conclude your probationary employment effective at 5.00pm today.” (Exhibit 5)

4 The PSAB has convened to hear the parties’ submissions regarding preliminary matters of jurisdiction. Set out below is an examination, paragraph by paragraph, of the terms of the Industrial Relations Act 1979 (“IR Act”) relating to the PSAB’s jurisdiction and an examination of the PSM Act and the WA Act as they relate to the PSAB’s jurisdiction.
5 Prior to examining the parties’ submissions, we feel compelled to comment on the scheme of the legislation as it affects the public sector. We have found the issues before the PSAB extremely difficult to resolve. Part, if not all, of that difficulty has arisen because of the maze created by the various pieces of legislation. The intentions of the legislature in making legislation dealing with the public sector employment, and the impact on the rights and protection of public sector personnel of being parties to workplace agreements is far from clear. Given the interconnectedness of the various pieces of legislation it is highly unlikely that a Government officer or public service officer could, on reading the legislation, have a reasonable grasp of his or her rights.
6 The jurisdiction of the PSAB is set out in s.80I of the IR Act and is subject to subsection (3) of that section and to s.52 of the PSM Act. Subsection (3) of s.80I of the IR Act says that the PSAB “does not have jurisdiction to hear and determine an appeal by a Government officer from a decision made under regulations referred to in section 94” of the PSM Act. It is not suggested that the Board’s jurisdiction is ousted by any regulations referred to in s.94. Section 52 of the PSM Act deals with “Industrial arbitration or legal proceedings not available for chief executive officers”. As the appellant was not a chief executive officer that section is not relevant to this matter.
7 It is clear that this is not an appeal against any decision of the employing authority in relation to an interpretation referred to in s.80I(1)(a).
8 Subsection (1)(b) of s. 80I(1) deals with appeals by Government officers who hold offices included in the Special Division of the Public Service, and this paragraph has no application to the appellant.
9 Subsection (1)(c) provides for an appeal other than under s.78(1) of the PSM Act by any Government officer who occupies a position that carries a salary not lower than the prescribed salary, from a decision to dismiss that officer. The appellant does not occupy such a position so this paragraph has no application to this matter.
10 Subsection (1)(d) provides for an appeal by a Government officer under s.78 of the PSM Act against the decision of subsection (1)(b) of that section. Subsection (1)(b) of s.78 of the PSM Act provides that subject to subsection (3) and to s.52, an employee who is a Government officer and who is aggrieved by the decision made in the exercise of power under s.79(3)(b) or (c) or (4), 82, 86(3)(b), (8)(a), 9(b)(ii) or (10)(a), 87(3)(a), 88(1)(b)(ii) or 92(1) may appeal to the Industrial Commission constituted by the PSAB, and that the PSAB has jurisdiction to hear such an appeal.
11 There is no suggestion by the appellant that this appeal is at all related to any decision made under any section other than s.78 of the PSM Act. The respondent denies that the decision to bring the employment to a conclusion is based on s.78 of the PSM Act, and says that it is simply based on the terms of the Contact of Service clause of the workplace agreement which covered the appellant’s employment and under Approved Proceedure 3.
12 Section 80I(1)(e) provides for the PSAB to have jurisdiction to hear and determine an appeal, other than an appeal under s.78(1) of the PSM Act, by any Government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer that the Government officer be dismissed.
13 Section 80I(2) defines “prescribed salary” and it is clear that the appellant had a salary lower than the prescribed salary.
14 Section 80I(3) provides that the PSAB does not have jurisdiction to hear and determine an appeal from a decision made under regulations referred to in s.94 of the PSM Act. There is no suggestion that this subsection applies.
15 Section 79 of the PSM Act deals with employees whose performance is said to be substandard. Subsection (3) provides that an employee whose performance is substandard may;

(a) have his or her salary increment withheld, or
(b) be reduced in level of classification, or
(c) have his or her employment in the Public Sector terminated.

16 For the purposes of this matter, the jurisdiction of the PSAB appears to arise in s.80I(1)(d) or (e). The issues of jurisdiction raised by the respondent are whether:

(1) The appellant was dismissed or her appointment terminated by the effluxion of time, or was annulled.

(2) If there was a dismissal, whether the right of appeal provided by s.80I of the IR Act is ousted because of the workplace agreement between the parties.

17 The respondent argues that s.18(1) of the WA Act implies into the workplace agreement a provision that the employer shall not unfairly, harshly or oppressively dismiss the appellant, and that the right not to be so dismissed is enforceable via s.51 of the WA Act, or s.7G of the IR Act if provision is made within the workplace agreement for such enforcement under s.7G, and not otherwise. The respondent says that there is an inconsistency between the terms of s.80I of the IR Act and the agreement. This inconsistency is said to be resolved by s.46 of the WA Act. Section 46 of the WA Act says:

46. Agreement to prevail over certain written laws
(1) Subject to section 45, this Part and any workplace agreement have effect despite any relevant enactment that would otherwise apply.
(2) In subsection (1) “relevant enactment” means an enactment that — 
(a) makes provision for or in relation to the way in which human resources are to be managed or administered in any part of the public sector;
(b) confers a right of appeal against a decision or recommendation of an official performing any function of public sector management;
(c) empowers a person or body to determine the remuneration or other terms and conditions of employment of officers or employees;
(d) requires any determination of the kind referred to in paragraph (c) to be made subject to any order, award or industrial agreement under the Industrial Relations Act 1979,
but does not include any provision of the Equal Opportunity Act 1984.”


18 Accordingly, the respondent says that the effect of the agreement has primacy.
19 The appellant argues that she was dismissed in circumstances which should attract the provisions of s.78 of the PSM Act relating to substandard performance. She also says that s.45 and s.46 of the WA Act, taken together with s.99 of the PSM Act and Regulation 24(1) of the Public Service Management (General) Regulations 1994 mean that s.78 and s.79 of the PSM Act are mandatory and prevail over the WA Act and the effect of the WA Act. Accordingly, the PSAB has jurisdiction pursuant to 80I(1)(d).
20 The respondent in reply says that the respondent’s decision did not arise pursuant to s.78 or s.79 of the PSM Act but was pursuant to the terms of the contract of service provisions contained in the agreement. The appellant’s appointment was made according to an approved procedure referred to in s.64(1) of the PSM Act. An approved procedure, being Approved Procedure 3 has issued. This states:


“Every officer appointed as a permanent officer to the public service shall normally be on probation for a period not exceeding six months.”


21 The respondent says that the appellant was not permanently appointed, or if permanently appointed, was subject to probation, and permanency was not confirmed. Accordingly, the decision to terminate was not one which was made pursuant to s.78 and s.79 of the PSM Act.
22 We have considered all of the submissions and documents put to the PSAB and would like to deal with the first issue as to whether or not the appellant’s employment was permanent, subject to a probationary period and required an action on the part of one of the parties to bring it to an end, such an action is termination by the employer. According to the documents before the PSAB, there is nothing to indicate that the appellant was employed for a fixed term. Rather, as Appointment Proceedure 3 contained in Approved Proceedure 3 notes:

“Every officer appointed as permanent officer to the public service shall normally be on probation for a period not exceeding six months.”


23 Prior to the expiry of the period of probation, the chief executive officer is required to do a number of things, including undertaking a performance assessment and confirming the officer’s appointment; or extending the period of probation; or terminating the services of the officer. It is clear that the respondent did not confirm the appellant’s permanent appointment. However, the proceedure required that he either confirm, extend the period of probation or terminate. The appointment was nonetheless a permanent appointment but was subject to a satisfactory completion of a probationary period. It required that the employer terminate the services of the officer if there was to be no extension or confirmation of the permanent appointment. The appointment was not limited to the probationary period but was permanent subject to satisfactory completion of probation. There are two types of probationary employment. The first is a permanent appointment which is subject to the satisfactory completion of a probationary period. The second is for a period of probation only, after which the employer is to consider whether or not to offer a permanent position. There is nothing before the PSAB to demonstrate that the appellant’s appointment was only for a probationary period. We note the letter of 25 May 2000, being attachment A to the respondent’s documents forwarded to the PSAB on 16 March 2001. The letter of appointment says, in its relevant parts:

“I am pleased to advise that your appointment to the above office has been approved. … A six month probationary period will apply to this appointment and an assessment will be made at that time.”


24 Accordingly, we would characterise the employment as being a permanent appointment subject to satisfactory completion of a six month probationary period. This required the employing authority to take some action to bring that employment to an end, such as terminating the services of the appellant, which is what occurred.
25 Accordingly, we find that the appellant has been dismissed. Her appointment did not come to an end by the effluxion of time as it might had there been a fixed term appointment.
26 As to the effect of the WA Act on the PSAB’s jurisdiction, we note the terms of s.45 and s.46 of the WA Act. They provide:

45. Matters that cannot be the subject of a workplace agreement
(1) Any matter that is excluded from the operation of this Part by the Public Service Act (including regulations under that Act) cannot be varied or affected by agreement between the parties to a workplace agreement referred to in section 43 (1).
(2) To the extent that a provision of a workplace agreement is inconsistent with subsection (1) it is of no effect.
46. Agreement to prevail over certain written laws
(1) Subject to section 45, this Part and any workplace agreement have effect despite any relevant enactment that would otherwise apply.
(2) In subsection (1) “relevant enactment” means an enactment that — 
(a) makes provision for or in relation to the way in which human resources are to be managed or administered in any part of the public sector;
(b) confers a right of appeal against a decision or recommendation of an official performing any function of public sector management;
(c) empowers a person or body to determine the remuneration or other terms and conditions of employment of officers or employees;
(d) requires any determination of the kind referred to in paragraph (c) to be made subject to any order, award or industrial agreement under the Industrial Relations Act 1979,
but does not include any provision of the Equal Opportunity Act 1984.”


27 We note that the heading to s.45 is “Matters that cannot be the subject of a workplace agreement”. The section then goes on to provide in subsection (1) that any matter that is excluded from the operation of that Part, being Part 3 of the WA Act, which deals with its application to the public sector, cannot be varied or effected by agreement between the parties to a workplace agreement. We note that is it not suggested that the parties to the workplace agreement, the subject of this matter, have varied or affected by agreement any matter that is excluded from the operation of Part 3.
28 However, s.45 and s.46 of the WA Act taken together with s.99 of the PSM Act and Regulation 24(1) of the PSM (General) Regulations 1994 have the effect of providing that matters concerning the management or structure of the public sector dealt with by Part 5 of the PSM Act (which include matters dealing with substandard performance and appeals from any decisions relating thereto) are excluded from the operation of Part 3 of the WA Act i.e. that part of the Act dealing with the public sector.
29 Therefore, excluded from the application to the public sector of the WA Act are matters concerning the management or structure of the public sector dealt with by Part 5 of the PSM Act. Section 99 of the PSM Act and Regulation 24 of the Public Sector Management (General) Regulations 1994 set out what those matters are i.e. the prescribed matters. Those prescribed matters are matters concerning the management or structure of the public sector dealt with by Parts 5, 6 or 7 of the PSM Act. Section 78 and 79 of the PSM Act are contained within Part 5. Section 45 of the WA Act says that any matter that is excluded from the operation of that Part, i.e. the Part dealing with its application to the public sector by the PSM Act and its regulations, cannot be varied or affected by agreement between the parties to the workplace agreement. To the extent that any workplace agreements contains a provision which is inconsistent with subsection (1) of s.45 then it is of no effect. It may be that the legislatures intended that the provisions should mean that the mere existence of a workplace agreement would mean that any matter that would be excluded from the operation of that part of the WA Act, that is its application to the public sector, is not affected, but does not say so. It refers to variation or effect by agreement between the parties. It is not agreement between the parties to vary or effect any matter excluded from the operation of that Part by the PSM Act, but it is the existence of the provisions of the WA Act and in particular s.18 and s.51 of the WA Act, which purport to vary or affect the operation to the public sector by the PSM Act. For this reason we are of the view that s.45 does not purport to exclude from the operation of Part 3 matters which are covered by the PSM Act but deals with matters which are not to be the subject of a workplace agreement.
30 Section 46, which is subject to s.45, says that that Part of the Act, i.e. its application to the public sector, and any workplace agreement have effect despite any relevant enactment that would otherwise apply. Subsection (2) defines the relevant enactment as including an enactment which confers a right of appeal against a decision or recommendation of an official performing a function of public sector management. It also refers to any enactment that requires any determination of the kind referred to in paragraph (c) to be made subject to any order, award or industrial agreement under the IR Act.
31 Accordingly, we would conclude that s.45 and s.46 of the WA Act make provision for the primacy of that Act and of the terms of the workplace agreement over any other enactment. The workplace agreement cannot purport to vary or affect any matter that is excluded from the operation of Part 3 of the WA Act by the PSM Act. Section 99 of the PSM Act is headed “Matters that cannot be the subject of industrial agreements or workplace agreements”. This heading is clear and refers to what cannot be contained within a workplace agreement. There appears to be an inconsistency between the heading and the terms of s. 99 in that the terms say that:

“There are excluded from the operation of … Part 3 of the WA Act (being that part which relates to the public sector)
(c) such other matters concerning the management or structure of the Public Sector as are prescribed for the purposes of this paragraph.”


32 Those matters are defined by Regulation 24 as being matters concerning the management of the public sector and are dealt with by, amongst other things, Part 5 of the PSM Act. If one were to exclude the terms of the headings contained within the headings of the PSM Act in respect of s.99 and s.45 of the WA Act, one might come up with a quite different interpretation than if one includes the headings of those sections in the consideration of their meanings. The heading of those two sections make it clear that they make reference to what cannot be the subject of a workplace agreement, rather than what might be the effect of the WA Act.
33 For this reason we are of the view that s.45 does not purport to exclude matters which are covered by the WA Act, but specifies matters which cannot be the subject of a workplace agreement. Section 99 of the PSM Act ought to be interpreted in the same manner. Accordingly, we are not satisfied that s.99 of the PSM Act taken together with Regulation 24 have the effect on s.45 of the WA Act which is suggested by the appellant. As s.46 makes clear, the workplace agreement is to prevail over certain written laws including enactments which confer a right of appeal against a decision or recommendation of an official performing any function of public sector management. If it were otherwise, that is, that parties to a workplace agreement are not to apply those conditions, then one would assume that the legislation would say so. Rather it says that those provisions cannot be affected or varied by agreement between the parties.
34 What remains is that s.18 of the WA Act provides that in every workplace agreement there is implied a provision that the employer must not unfairly, harshly or oppressively dismiss from employment any employee who is party to a workplace agreement, and that such implication is enforceable under s.51, that is via the Industrial Magistrate’s court or under s.7G of the IR Act as the case may be. Section 78 of the PSM Act deals with rights of appeal and reference of certain matters. It may be that the intention of the legislature was that a Government officer bound by a workplace agreement may take a claim in relation to his or her dismissal to the Industrial Magistrate’s court or under s.7G of the IR Act, to the Commission, but where substandard performance results in the withholding of an increment of remuneration or a reduction of level of classification, such a Government officer is entitled to take those matters to the Industrial Commission constituted by the PSAB in accordance with s.78. We note that there is no right of appeal from decisions of the PSAB, yet such a right exists in respect of decisions of the Industrial Magistrate and the Commission.
35 Accordingly, it would appear that if the appellant’s employment was terminated, which we have found that it was, on account of substandard performance, or in accordance with Approved Proceedure 3, which is provided for in s.64 of the PSM Act, that her recourse in respect of her dismissal is dealt with in accordance with the terms of s.18 of the WA Act, and that PSAB has no jurisdiction to deal with her appeal.
36 We note too, the reasons for decision of Fielding SC, then the Public Service Arbitrator, in Dragicevich v Department of Resources Development (PSA 2 of 1999). Although the learned Arbitrator was dealing with a reclassification matter, the circumstances were similar in that the officer concerned was party to a workplace agreement. He says that “public servants are not simply officers of the Crown but also employees (see: Oceanic Crest Shipping Company v Pilbara Harbour Services Proprietary Limited (1986) 160 CLR 626). Indeed, consistent with this idea the PSM Act contains extensive provisions to identify the employer of persons including public service officers, “employed” in departments of State (cf:ss.5 and 64). Although s.80C, which is relevantly dedicated to the jurisdiction of the Public Service Arbitrator, contains only a definition of “Government officer” and no mention of an “employee”, there is no reason why a person cannot be both a Government officer and employee for the purpose of the Act”. The learned Arbitrator goes on to note the lack of jurisdiction to deal with that matter because no “industrial matter” arose in accordance with s.7C of the IR Act due to the parties being parties to a workplace agreement. The learned Arbitrator then examines the terms of s.45 and s.46 of the WA Act as they related to the PSM Act and in particular s.99.
37 The PSAB deals with an even more limited range of matters than the Arbitrator, and all of those matters relate to the industrial relationship between the parties. In the circumstances, it would seem strange that the legislation could provide that a Government officer or Public Service Officer a party to a workplace agreement is not an employee for the purposes of the IR Act, and therefore, cannot bring certain matters to the Public Service Arbitrator, and yet can bring a matter relating to dismissal to the PSAB when the WA Act and the IR Act provide specific methods of redress for alleged unfair dismissals by s.18(1), and s.51 of the WA Act and 7G of the IR Act, and as s.18(1) says “not otherwise”.
38 We would dismiss the appeal on the basis that the PSAB lacks jurisdiction to deal with it.

MS D ROBERTSON

39 By a letter dated 25 May 2000 the appellant was offered an appointment as a Senior Compliance Officer Level 5 with the Ministry of Fair Trading (Ministry).
40 The letter stated that a six month probationary period would apply to the appointment, and that an assessment would be made at that time.
41 The appellant accepted the offer, and entered into a formal Workplace Agreement, (“WPA”) signed it seems by her on 7 June 2000, and on behalf of the Ministry on 19 June 2000.
42 By letter dated 5 January 2001 the Ministry advised the appellant that her services were terminated on the grounds of work performance.
43 That termination led to this appeal, lodged by the appellant on the grounds that the decision was harsh, oppressive and unfair because:

· the assessment of her work performance was unfair in that it was based on flawed comparisons of output with other officers whose type of work was qualitatively different from the appellant.
· that the assessment of her work was invalid in that she was not assessed against the published policy and guidelines for how the work should be undertaken, but rather against an arbitrary standard.
· That a proper assessment of the appellant’s performance would lead to her performance being judged as at least satisfactory.
· Such other grounds as may be advanced at the hearing.

44 This is a decision made on the threshold issues raised by the respondent and the Commissioner in this appeal, namely that there is no jurisdiction for this Board to hear the matter.
45 After submissions from both parties, and a preliminary hearing some agreement was reached on the facts of the case.
Agreed Facts

1. The appellant was at the relevant time a Government Officer within the meaning of Section 80C of the Industrial Relations Act 1979 (“IRA”).

2. The jurisdiction of the Public Service Appeal Board does not require that an industrial matter in the terms of Section 7C of the IRA arise.

Applicable Law

46 In this instance the applicable law is the common law of employment as it applies in Western Australia, and as modified by the IRA and the Workplace Agreements Act 1993 (“WPAA”).
47 The common law itself is expressed by past judicial decisions of varying weight accorded by an examination of the judicial hierarchy of the decision making body. While decisions of the Privy Council before the advent of the various Australia Acts in the last decade or so, and of the High Court are almost compulsory in application, decisions of other courts become more persuasive than definitive.
48 In the State jurisdiction, previous decisions of the Public Service Appeal Board (“PSAB”) are at best persuasive only, and each Board can make its own decision on the facts before it, and after giving its own weight to the evidence of the parties before it as to what those facts may be.
49 The decision in appeal PSAB 7 of 1997 (Oliver v CEO Goldfields Esperance Development Commission 77 WAIG 2819) is at the lowest end of the scale of persuasiveness, and I am not convinced, for reasons that I have set out in this decision, that it was a decision based on the correct statutory interpretation of section 46 of the WPAA.
50 I do not consider it an authoritative precedent to be followed in this case.
Employment and termination

51 By their letter dated 25 May 2000 the appellant was clearly appointed by the Ministry on an ongoing (permanent) basis, not for a period of six months.
52 The position offered was that of an officer in the State Public Service, and was, by classification and duties, one of the routine offices created and at all times subject to the provisions of the Public Sector Management Act 1994 (“PSMA”) but as that Act is varied by both the WPAA and the IRA.
53 The letter also created a condition of probation that required the Ministry to make an assessment of her performance within that period. Following that assessment, the Ministry could either confirm the appointment, extend the period of probation, or terminate the employment.
54 In this case there was an assessment followed by a termination in the form of the letter from the Ministry to the appellant dated 5 January, 2001 which has previously been referred to.
55 The termination of an officer of the State Public Service is both authorised and regulated by the PSMA, and in this case particularly by Section 79(3).
56 In summary, I find that the appellant was employed as a permanent officer under the PSMA, and terminated under that same Act. She has the right to appeal that decision in the manner authorised by the PSMA for officers of her classification and duties unless that right is removed by agreement or statute.
Work Place Agreement

57 Clause 13.6 of the WPA signed by the appellant confirms the operation of the PSMA in relation to disciplinary matters, and I find that termination for any reason must be considered a disciplinary matter.
58 The dispute resolution procedures contained in the agreement are designed to resolve disputes on the meaning and effect of this agreement, including any provision implied into this agreement by the Minimum Conditions of Employment Act 1993 (my emphasis).
59 I find that the termination of the appellant’s employment is neither a dispute on the meaning or effect of this agreement, nor a dispute on an implied condition emanating from the Minimum Conditions of Employment Act.
60 Clause 62.2 of that same agreement requires the use of the agreed dispute settlement procedures before any external action is taken (my emphasis again) so I find that the WPA does not purport to preclude an appeal to an external body such as this Appeal Board.
61 By the manner of construction of the WPA, the appointment of an arbitrator in the terms of Clause 62.6 is limited to the resolution of the disputes that I have previously referred to, namely disputes on the meaning and effect of the agreement, and provisions implied by the Minimum Conditions of Employment Act.
62 In conclusion I find that the WPA did not prevent her from making this appeal to this Board.
Workplace Agreements Act.

63 Section 46 of the WPA gives Workplace Agreements paramountcy over the Public Service Act (since replaced by the PSMA) in those matters listed in that section, but subjects that paramountcy to the limitations set out in Section 45.
64 The sections read as follows:
“45. Matters that cannot be the subject of a workplace agreement
(1) Any matter that is excluded from the operation of this Part by the Public Service Act (including regulations under that Act) cannot be varied or affected by agreement between the parties to a workplace agreement referred to in section 43 (1).
(2) To the extent that a provision of a workplace agreement is inconsistent with subsection (1) it is of no effect.

46. Agreement to prevail over certain written laws
(1) Subject to section 45, this Part and any workplace agreement have effect despite any relevant enactment that would otherwise apply.
(2) In subsection (1) “relevant enactment” means an enactment that — 
(a) makes provision for or in relation to the way in which human resources are to be managed or administered in any part of the public sector;
(b) confers a right of appeal against a decision or recommendation of an official performing any function of public sector management;
(c) empowers a person or body to determine the remuneration or other terms and conditions of employment of officers or employees;
(d) requires any determination of the kind referred to in paragraph (c) to be made subject to any order, award or industrial agreement under the Industrial Relations Act 1979,
but does not include any provision of the Equal Opportunity Act 1984.”

65 Section 99 of the PSMA sets out the limitations to the matters listed in section 46 of the WPA, and that section reads:

“99. Matters that cannot be the subject of industrial agreements or workplace agreements
There are excluded from the operation of sections 41, 41A and 43 of the Industrial Relations Act 1979 and of Part 3 of the Workplace Agreements Act 1993 — 
(a) any matters dealt with by a public sector standard or code of ethics, except — 
(i) rates of remuneration;
(ii) leave;
(iii) hours of duty; and
(iv) such other matters as are prescribed for the purposes of this subparagraph;
(b) any matters dealt with by a provision of this Act relating to — 
(i) employment tenure in the Public Service; or
(ii) approved classification systems or procedures in the Public Sector;
and
(c) such other matters concerning the management or structure of the Public Sector as are prescribed for the purposes of this paragraph.”

66 The regulation that expands on section 99(c) reads:

“Prescribed matters for purposes of section 99(c) of Act

24. (1) Matters concerning the management or structure of the Public Sector that are dealt with by --

(a) Parts 5, 6 or 7 of the Act; or

(b) the Occupational Health, Safety and Welfare Act 1984, are prescribed matters for the purposes of section 99 (c) of the Act.

(2) For the purpose of the management of the Public Sector, compensatory loadings or allowances payable for loss or absence of indefinite tenure of offices, posts or other employment in the Public Sector (other than offices referred to in section 6 (1) (d) and (e) of the Salaries and Allowances Act 1975) are prescribed matters for the purposes of section 99 (c) of the Act.”

67 In interpreting the effect of those exclusions I do not reach the conclusions reached by Commissioner Scott and Mr B Appleby, which have been provided to me in draft form.
68 I do not believe that the appellant’s rights to appeal the decision to terminate have been removed by the combined operation of both statutes.
69 The matters listed in both Acts are matters of general management, applicable to the provision of human resources as that term is applied to the collective allocation and management of a workforce.
70 My view is supported as the general terms of the sections are given direction by the more particular terms such as the determination of remuneration, conditions of employment, change of tenure, loadings and allowances and similar matters.
71 One of the rules rule of statutory interpretation limits the identification of general matters in a statute to the same nature of the specific matters listed with the general matters.
72 The nature of the Public Sector Management decisions that may not be appealed (WPA section 46(b)), on my interpretation, then become those decisions applicable to the collective workforce.
73 The management decisions referred to in section 46(b) are then limited to those collective decisions, leaving decisions on the termination of the employment of individuals appealable.
74 The WPAA does not operate to oust the appellant from the jurisdiction of the PSAB.
75 My interpretation makes sense as management decisions affecting the collective workforce should not be appealable by an individual under a WPA, but justice and equity demand that every individual be granted her day in court to appeal a decision made in relation to her as an individual, that is harsh, oppressive and or unfair.
76 I consider that this Board does have jurisdiction to hear on its merits the appeal made by the appellant.
77 I am also of the opinion that the delay caused by the raising of jurisdictional issues by the respondent has in itself created an injustice, if not more injustice, for the appellant.
78 I believe that in future cases, issues of jurisdiction should be argued with the hearing on merit. This issue is so serious that it strikes at the heart of the objects of the IRA (section 6) and of the manner in which the Commission’s power is to be exercised (sections 26 and 27). I propose to pursue this issue further.
79 The Supreme Court of Western Australia Court of Appeal is of the same view as it has expressed in the case of Swan Television and Radio Broadcasters Ltd. Trading as STW Channel Nine Perth v Satie (1999) WASCA 79 (23 June 1999). In this instance this precedent has the force of law in Western Australia.