100315832

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF JUSTICE

RESPONDENT

CORAM SENIOR COMMISSIONER A R BEECH

DATE FRIDAY, 7 MARCH 2003

FILE NO PSACR 20 OF 2002

CITATION NO. 2003 WAIRC 07881

_______________________________________________________________________________

Result Leave for counsel to appear generally refused.

Representation

Applicant Mr B. Cusack (by way of written submissions)

Respondent Mr N. Cinquina (by way of written submissions)

_______________________________________________________________________________

Reasons for Decision - Appearance by counsel

1          The hearing in the substantive matter before the Commission is listed to commence on 13 March 2003.  The respondent has indicated it wishes to be represented by counsel.  The applicant union has objected to the appearance of counsel.  This decision refers to the application by the respondent to be represented by counsel. 

2          Section 31(4) of the Industrial Relations Act 1979 provides as follows:

 “(4) Where a question of law is raised or argued or is likely in the opinion of the Commission to be raised or argued in proceedings before the Commission, the Commission may allow legal practitioners to appear and be heard.” 

3          The Commission must firstly decide whether a question of law is raised or argued, or is likely in the opinion of the Commission to be raised or argued, in the substantive proceedings.  If it is not, counsel will not be allowed to appear and be heard.  The word “likely” means generally speaking “probable” (Western Mining Corporation v. Australian Workers’ Union (1990) 70 WAIG 3525).  If a question of law is raised or argued, or is likely in the opinion of the Commission to be raised or argued, then the Commission is to exercise a discretion whether or not to grant leave.   

4          The discretion to permit counsel to appear is to be exercised within the parameters of the Act, including those established by the objects of the Act, and, in particular s.6(c) which states:

 “(c) to provide means for preventing and settling industrial disputes not resolved by amicable agreement, including threatened, impending and probable industrial disputes, with the maximum of expedition and the minimum of legal form and technicality.”

5          The right of a party to be represented by counsel is therefore limited. 

6          The substantive matter before the Commission is a claim by the union that Ms Westlund has been subjected to a campaign of intimidation, harassment and victimisation that would amount to workplace bullying.  The applicant union seeks the following declaration and orders. 

7                      “(1) A declaration that the Public Advocate has breached the requirements of the Public Sector Management Act 1994, sections 8 & 9.

8                      (2) An order that the Public Advocate cease and desist workplace bullying.

9                      (3) An order that the Public Advocate provide the necessary assistance to relocate Ms Westlund to a suitable alternative position within the public sector.

10                   (4) An order that the Public Advocate place Ms Westlund on paid leave from the date she last worked until the date she is permanently placed in a suitable alternative position within the public service.

11                   (5) An order that all leave entitlements utilised during the period referred to in order (4) be fully reinstated. 

12                   (6) An order that the period referred to in order (4) above shall be regarded as service for all purposes of Ms Westlund’s employment.”

13       The Commission convened proceedings on 17 February 2003 in order to deal with preliminary matters.  On that occasion, the respondent was represented by counsel in order to argue that leave ought be granted for counsel to appear in the substantive proceedings.  On that occasion, counsel stated that issues of law arose out of the circumstances whereby Ms Westlund may be certified as unfit to attend work yet remain “on the books”, and whether the arbitrator can require the respondent to provide the necessary assistance to relocate Ms Westlund to a suitable alternative position within the public sector as the union seeks in order (3) above.

14       The Commission indicated that an issue of law is raised in order (3) and leave was granted to the respondent to be represented by counsel in relation to the order sought in order (3).  If it became apparent that the issues relating to the order are indivisible from the balance of the substantive proceedings, the respondent may ask for the ruling to be revisited.

15       In correspondence to the Commission dated 21 February 2003 the respondent advised that the declaration and orders sought cannot be separated from the substantive proceedings because:

16                   (a) Essentially the applicant is seeking for the Commission to interfere in the management of staff of the Department;

17                   (b) The declaration and orders being sought impact on the Department’s ability to manage staff;

18                   (c) They seek to create new employee paid leave entitlements, and reinstate accrued or pro-rata leave entitlements previously exhausted;

19                   (d) They seek to place employees on paid leave until alternative employment is found;

20                   (e) They seek to require the respondent to provide the necessary assistance to relocate Ms Westlund to a suitable position within the public sector.

21       The respondent submitted that the declaration and orders sought by the applicant “relate or touch upon questions of law, which will be raised or argued or are likely to be raised or argued in the proceedings”.  The respondent stated “questions of law to be raised may include the powers of the Public Service Arbitrator to make such orders and the impact on award entitlements”.

22       In e-mails which have passed between the respondent and the applicant, copies of which have been provided to the Commission, the respondent indicated that the legal issues it intends to raise include but are not limited to:

23                   (1) The power and or jurisdiction of the arbitrator to make an order requiring the respondent to provide Ms Westlund the necessary assistance to relocate to another position in the public sector;

24                   (2) Legal principles applicable to the granting of the declaration and/or order against the Public Advocate;

25                   (3) Managerial prerogative that relates or touches upon the management of staff and the work they perform;

26                   (4) Public Sector Standards, transfer, redeployment;

27                   (5) The power and or jurisdiction of the arbitrator to order the respondent to place Ms Westlund on paid leave;

28                   (6) The power and or jurisdiction of the arbitrator to grant or make orders sought given the resolution of the workers’ compensation matter;

29                   (7) The power and or jurisdiction of the arbitrator to make an order reinstating exhausted accrued award entitlements and/or reinstating service;

30                   (8) Power and or jurisdiction of the arbitrator to make an order reinstating exhausted accrued award entitlements and/or reinstating service;

31                   (9) Power and or jurisdiction of the arbitrator to make an order which has the effect of creating a new form of paid leave;

32                   (10) Public interest.

33       The applicant union maintains its objection to leave being granted.  In doing so it notes that the questions of law now referred to by the respondent “would seem to cover a wider ground” than order (3) sought by the union.  The applicant union maintains its objection on the basis that the Commission has already considered the issue of leave for counsel to appear and the issues now raised by the respondent fall outside the scope of the conditions set.

34       I make the following comments by way of observation.  In the proceedings before the Commission on 17 February 2003 the only issues of law to be raised by the respondent were whether Ms Westlund may be certified as unfit to attend work yet remain “on the books” and whether the arbitrator can issue the order (3) as sought.  The matters referred to by the respondent in the correspondence and the e-mails between the parties go much further than those issues.  That is surprising given that the proceedings on 17 February 2003 had been set down since 6 December 2002 on the basis that the respondent’s request for leave to be represented by counsel would be dealt with on 17 February 2003.  I would have expected on 17 February 2003 that the respondent would have raised all the questions of law it intended to raise in the substantive hearing.

35       While I acknowledge that circumstances may change as the preparation for a hearing proceeds and issues which may not have been anticipated may arise, the quite wide ranging questions of law now raised to by the respondent do not appear to be matters which have arisen only recently.

36       It may be able to be said that most, if not all, proceedings before the Commission may involve some question of law.  This is because the Commission is a creature of a statute which operates in accordance with that statute and arguments may arise regarding the interpretation of the statute.  Further, matters of employment law are frequently central to the issues which are brought to the Commission.  The point to be made is that s.31 of the Industrial Relations Act 1979 does not give a right to parties to be represented by counsel merely because a question of law is raised or argued or likely to be raised or argued.  Therefore, the fact that a question of law may be raised of itself may not be sufficient justification for the Commission to exercise its discretion to permit counsel to appear.  In other words, merely because the declaration and orders sought “relate or touch upon questions of law” (to quote from the respondent’s letter of 21 February 2003) does not mean that counsel is to be given leave to appear. 

37       Rather, the question of law raised or argued, or likely to be raised or argued, should be a question of substance and not mere technicality.  I say this because the Act provides means for settling disputes with the maximum of expedition and the minimum of legal form and technicality.  The prospect of there being raised unnecessary legal form and technicality, particularly, but not solely, where it inhibits the settling of industrial disputes may well not be the sort of consideration which would justify the exercise of discretion in favour of a legal practitioner appearing in a matter (Western Mining Corporation v. AWU, op.cit). 

38       The substantive matter before the Commission is the claim that Ms Westlund has been subjected to a campaign of intimidation, harassment and victimisation that would amount to workplace bullying.  Section 29 requires the applicant union to specify the relief it seeks once the substantive matter has been made out.  However, it follows that the relief that is sought by the applicant union is not of itself the substantive matter before the Commission.  In granting relief under the Act the Commission is not restricted to the specific claim made or to the subject matter of the claim:  s.26(2).  It is apparent in what follows that the concern of the respondent has principally been directed to the relief that is sought.  However, it does not automatically follow that the relief that is sought is indivisible from the substantive matter before the Commission such that leave is to be granted to counsel to appear and be heard also for the substantive matter. 

39       The questions of law referred to in the correspondence and the e-mails now relied upon by the respondent to support its application to be represented by counsel can be grouped as follows:

40                   (1) Items (3), (9) of the correspondence, (a) and (b) of the e-mail raise managerial prerogative and public interest respectively.  Matters of managerial prerogative do not stand outside the area of industrial disputes (re:  Cram and Others; ex parte NSW Collery Proprietors Association Limited (1987) 72 ALR 161).  In any event, s.80E(5) provides that the jurisdiction of the arbitrator to enquire into and deal with any industrial matter relating to a government officer cannot affect or interfere with the exercise by an employer of any power in relation to any matter within the jurisdiction of the arbitrator.

41                                           Therefore the fact that managerial prerogative may be touched upon would be insufficient for the Commission to exercise its discretion to grant leave for counsel to appear.  It is beyond question that the mere exercise of managerial prerogative does not prevent the Commission from enquiring into the fairness or otherwise of the exercise of that prerogative where it affects the employment relationship with employees (City of Canning v. Operative Painters and Decorators Union (1994) 74 WAIG 2321 at 2322).  Nor am I aware of any authority which says that the public interest is a reason for granting counsel leave to appear. 

42                                           Finally these items may arise in relation to the substantive matter before the Arbitrator, however, the legal principles relating to them are well settled and these items do not warrant the exercise of discretion to allow counsel to appear.

43                   (2) Item (2) merely states “legal principles applicable to the granting of a declaration and or order against the Public Advocate”.  There is an issue about whether or not the Commission is able to issue a mere declaration in the absence of an order:  Hon Minister for Police v. WA Police Union (2000) 81 WAIG 356.  That issue does not arise in this case.  The mere statement that there is a legal principle applicable is unhelpful and without more does not identify a question of law which is likely to arise in this matter. 

44                   (3) Item (4) merely states “Public Sector Standards, transfer, redeployment”.  It is not clear what is being referred to here.  However, it may be convenient to link this point with items (1) and (e) which respectively raise the power or jurisdiction of the arbitrator to make an order requiring the respondent to provide Ms Westlund the necessary assistance to relocate to another position in the public sector.  In the proceedings of 17 February 2003 those questions of law formed the basis for the Commission granting leave for counsel to appear in relation to order (3) as sought. 

45                                           The issue becomes whether or not those questions of law are indivisible from the substantive matter.  For the reasons given earlier, the relief sought is separable from the substantive matter.  To put it another way, the appearance of counsel in relation to the questions of law relating to such an order, if the evidence shows that the union’s claim is made out and that order is pursued, may be able to be dealt with by written submissions or by a brief appearance by counsel at the commencement or the conclusion of the hearing. 

46                   (4) Items (5) and (d), and items (7), (8) and (c) respectively refer to the power and or jurisdiction of the arbitrator to order the respondent to place Ms Westlund on paid leave or to reinstate accrued leave or “create a new form of paid leave”. 

47                    It is not easy to see what questions of law are raised in this regard.  The Public Service Arbitrator has the power to enquire into and deal with the claim that Ms Westlund has been subject to a campaign of intimidation, harassment and victimisation that would amount to workplace bullying.  If in dealing with that claim it was apparent that some annual leave had been utilised by Ms Westlund which ought be re-credited, it is difficult to see what substantive question of law arises.  The arbitrator is not being asked to create a new form of paid leave nor create new employee paid leave entitlements.  The items do not at this point appear to be of sufficient moment to warrant the exercise of the arbitrator’s discretion to allow counsel to appear in relation to the substantive matter or in relation to orders (4) and (5) as sought.

48                   (5) Item (6) raises the power and or jurisdiction of the arbitrator to grant or make the orders sought given the resolution of the workers’ compensation matter.  The Commission is aware of workers’ compensation matters from earlier proceedings in relation to the production of documents [2002 WAIRC 06875].  The status of those workers’ compensation proceedings, whether current or past, is a matter of fact and it is not clear what question of law may be raised regarding the jurisdiction of the arbitrator.

49       It follows that I am not persuaded that any of the broader questions of law now described in the correspondence and e-mail submitted by the respondent either arises or is indivisible from the substantive matter before the Commission so that the Commission ought revisit its decision of 17 February 2003. 

50       Accordingly, the decision of the Commission is that counsel may appear and be heard in relation to the claim for an order that the Public Advocate provide the necessary assistance to relocate Ms Westlund to a suitable alternative position within the public sector.  As a matter of convenience, the Commission will accommodate the appearance of counsel on that issue either orally or in writing.  In all other respects, leave for counsel to appear is not granted.

51       In reaching this conclusion I feel bound to observe that in the past the Commission as presently constituted has found the appearance of counsel, whether for the applicant or the respondent, generally to have been of assistance to the Commission. 

_______________________________