100421248

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

 -v-

 DIRECTOR GENERAL, DEPARTMENT OF JUSTICE

RESPONDENT

CORAM COMMISSIONER J L HARRISON

 PUBLIC SERVICE ARBITRATOR

DATE OF ORDER FRIDAY, 26 MARCH 2004     

FILE NO PSAC 51 OF 2002

CITATION NO. 2004 WAIRC 10979

_______________________________________________________________________________

Catchwords Jurisdiction of Public Service Arbitrator – Whether order sought falls within ambit of a Public Sector Standard – Arbitrator held to have jurisdiction – Application not in relation to a breach of a Public Sector Standard – Industrial Relations Act 1979 (WA) s 80E(1) s 80E(5) s 80E(7); Public Sector Management Act 1994 (WA) s 97(1)(a)

Result Jurisdiction found.

Representation

Applicant Mr J Dasey

Respondent Mr R Andretich (of counsel)

_______________________________________________________________________________

Reasons for Decision

1          On 17 December 2002 the applicant applied to the Public Service Arbitrator (“the Arbitrator”) seeking an urgent conference pursuant to s44 and s80E of the Industrial Relations Act 1979 (“the Act”) with the Director General, Department of Justice (“the respondent”) in relation to a dispute involving the non-appointment of Mr Neville Jones to a Level 7 Principal Policy Officer position with the respondent.  A conference was held on 24 January 2003 and as the matter was not settled by conciliation the matter was referred for hearing and determination.  The respondent raised a preliminary issue of the Arbitrator’s jurisdiction to deal with this matter and it was decided that this issue would be dealt with before the substantive matter was heard.

2          On 10 January 2003 the applicant wrote to the Commission seeking leave to amend Schedule A of its application.  A number of grounds and particulars were included in the amended schedule and the following orders were sought:

 “Urgent Interim Orders Sought

 The applicant seeks the following interim order to prevent this application from potentially becoming nugatory:

1. The respondent shall not in any way alter, abolish, relocate, restructure, make redundant, diminish or declassify or permanently allocate to another person, the position and duties of Principal Policy Officer level 7, (position number P001035), and shall maintain adequate money in its budget to fund this position, at least until final orders are issued in the determination of this matter.

Final Orders Sought

The applicant seeks the following final orders:

1. The actions of the Director General, relating to the construction and forwarding of his memorandum dated 23 October 2002, concerning Mr Neville Jones, and the instructions to officers contained therein, are hereby void ab initio.

2. The actions of the Executive Director, selection panel members, human resource officers and any other officer, in direct response to the Director General’s memorandum dated 23 October 2002, relating to Mr Jones, are hereby void ab initio.

3. Within 7 calendar days of the date of the issuing of this Order, the respondent is to complete the implementation of Mr Jones’ promotion to the position of Principal Policy Officer level 7, (position number P001035), so that Mr Jones is substantively confirmed in the position with effect from the date on which the position was advertised.  Mr Jones is to be permitted to perform all of the position’s duties and is to receive all benefits, entitlements, privileges, powers, authority, responsibility, amenities and status which should reasonably accompany the position.

4. Within 7 calendar days of the date of this Order, the Director General himself, is to successfully send by e-mail, a copy of these Orders and accompanying Reasons for Decision, to all staff with email facilities within the respondent’s employ.  No derogatory comments about Mr Jones are to be contained in the email, or in any other written communications to staff.  The email is to also request staff with email facilities, to forward the information to staff without email facilities.”

3          However prior to this application progressing any further Mr Jones sought leave to intervene on his own behalf in this application and an application was lodged to join Application 102 of 2003, which was a claim by Mr Jones that he has been denied a benefit due to him under his contract of employment, to this matter.  These issues were dealt with by the Commission as presently constituted and separate reasons issued in relation to these issue.

4          Prior to the hearing on the issue of jurisdiction the parties agreed on a statement of facts as follows:

 “Agreed Statement of facts for purposes of jurisdiction hearing in PSAC 51 of 2002

1. The Applicant’s member Mr Neville Jones is a permanent level 6 Public Service Officer with over 20 years service with the Respondent.

2. Mr Jones applied for a Level 7 vacancy in position 001035 Principal Policy Officer (“the position”).

3. The selection panel interviewed Mr Jones on 10 September 2002 and subsequently assessed Mr Jones as the recommended applicant.  On 26 September 2002 such a recommendation was forwarded to the Executive Director, who had delegated authority to appoint an officer to fill the subject vacancy.

4. The Executive Director endorsed the recommendation on 7 October 2002.

5. On 11 October Mr Jones was advised through letter (sic) from a Recruitment Officer that he had been recommended for appointment. (Letter No1).

6. On Thursday 24 October Mr Jones was advised by the Chairperson of the selection pane, (sic) Mr Bill Cullen that the Director General, Mr Alan Piper had sent Mr Cullen a memo raising concern over Mr Jones (sic) overall performance and requesting Mr Cullen to obtain reports from specific people.

7. The Director General’s memo, dated 23 October 2002, required Mr Cullen to consider the referee reports and consult with the Manager Human Resources, before advising Mr Piper of Mr Cullen’s recommendation regarding Mr Jones’ suitability for the position.  (Letter No 2)

8. The appointment of Mr Jones did not proceed.

9. On 5 December Mr Jones received a letter from the Director Human Resources stating that notwithstanding the letter of 11 October the position would not be filled and that as a result of referee reports which had been received the Executive Director felt that Mr Jones was unable to meet the requirement’s (sic) of the vital aspects of the essential criteria.  (Letter No 3)”

(Exhibit A1)

5          Attached to the agreed facts (Exhibit A1) were three letters as follows, formal parts omitted:

“P001035, PRINCIPAL POLICY OFFICER, LEVEL 7, POLICY, PLANNING & RESEARCH, CJJ DIVISION

I am pleased to advise that you have been recommended for appointment to the above position.

Applicants not recommended may lodge a formal application for a review if they are of the opinion that there has been a breach of standard relating to the recruitment, selection and appointment process.  The period allowed to lodge a formal application for review closes 5.00pm 24 October 2002.

In view of the requirement to offer unsuccessful applicants the opportunity for review you will appreciate your appointment is not yet assured.  I will advise you further in due course.”

(Exhibit A1, Letter 1)

“Re: Principal Policy Officer (Position No 001035) - Recruitment, Selection and Appointment Process

Routinely I am advised of senior appointments within the Division.  As such I have recently been advised of the recommended appointment of Mr Neville Jones to the position of Principal Policy Officer within the Community and Juvenile Justice Division.

It has previously come to my attention that there are some concerns in regard to Mr Jones’ skills and abilities as per the following:

• Deficiency in his ability to engage and consult with stakeholders when developing policies/strategies.
• Deficiency in his ability to develop policies/strategies that meet the needs of the business area.
• Deficiency in his ability to complete projects satisfactorily.
• Deficiency in his ability to play a leadership role within the Department.
• Lacks the confidence of his colleagues to represent the Department at senior decision-making forums.

I have been informed that referee reports were not sought by the panel to clarify Mr Jones’ suitability for the position.  Although, I recognise that this is not a mandatory requirement, given the concerns I have outlined above, I request that the panel seek written referee reports from the following personnel:

• Mr Gary Thompson, Executive Director, Courts
• Mr Stephen Kay, Director Court Development
• Mr Alan Thompson (Referee nominated by Mr Jones)
• Dr Bob Fitzgerald (Referee nominated by Mr Jones).

I have sought advice from the Human Resources Directorate, which has prepared the attached referee report to be completed by the referees.  Based on the outcome of these referee reports and in consultation with Mr Terry Bransby, Manager HR (CJJ), I wish to be advised of your recommendation regarding Mr Jones’ suitability for the position before any such appointment is confirmed.”

(Exhibit A1, Letter 2)

“ P001035, PRINCIPAL POLICY OFFICER, LEVEL 7, POLICY & PLANNING, CJJ DIVISION

Notwithstanding the letter of recommendation to the position of Principal Policy Officer P001035, dated 11 October 2002, we regret to advise a decision has been made not to proceed in filling this vacancy.

In conjunction with your application and interview, your nominated referees, plus two Departmental referees were contacted.  Referee reports provided by Mr Thompson and Dr Kay indicate there are issues around your appointment to this position.  Drawing from this information Mr Harvey feels that you are unable to meet the requirements of the vital aspects of the essential criteria.

Also, Mr Harvey is currently looking at the organisational structure within Policy and Planning and is seriously considering abolishing this position, as he believes the structure is ‘top heavy’ and more resources need to be directed to lower level policy positions.

Appointments in the public sector are subject to the provisions of the Public Sector Management (Examination and Review Procedures) Regulations 2001.  Accordingly, as an applicant, it is open to you to make application for a review of this process, if you are of the opinion that the Recruitment, Selection and Appointment Standard (see reverse of page 2) has been breached.

In lodging your claim, specify which part of the Standard you believe has been breached and why, along with a brief explanation as to how the outcome of the selection process has adversely affected you.

Your claim must be received by this office by 5.00pm, 19 December 2002.  Claims cannot be accepted after this date.  Your claim should be forwarded either by email to humanres@justice.wa.gov.au, fax to (08) 9264 1273, post to The Recruitment Officer, GPO Box F317, Perth WA 6841, or hand delivered to the Human Resources Directorate, 11th Floor, 141 St George’s Terrace, Perth.”

(Exhibit A1, Letter 3)

Respondent’s Submissions

6         The respondent does not take issue with Mr Jones having applied for the Level 7 position and being recommended for appointment to this position by the selection panel established by the respondent for filling the Level 7 position.  Even though Mr Jones was advised by letter on 11 October 2002 that he was to be recommended for appointment to the Level 7 position, the respondent maintains that this letter did not constitute notification that Mr Jones was in fact appointed to the Level 7 position.  The respondent maintains that the letter gives advice to Mr Jones that he was recommended for appointment to the Level 7 position and it did not constitute an offer of promotion to this position (Exhibit A1, Letter 1).  The respondent maintains that the applicant did not regard the letter of 11 October 2002 to Mr Jones as an offer of appointment, nor does the applicant maintain that such an offer was accepted by Mr Jones.  If that was the case then it would be open for Mr Jones to argue that he had been constructively dismissed by not being allowed to take up the appointment referred to in this letter.  The respondent argues that the letter sent to Mr Jones on 11 October 2002 did nothing more than advise Mr Jones that he had been recommended for appointment following a selection process.  The respondent maintains that there is no statutory or common law obligation imposed upon an employing authority to implement the outcomes of a selection process and relies on McGarrigle v Public Service Board [1979] 1 NSWLR 292 at p301 in support of its argument.

7            The respondent acknowledges that it did not appoint Mr Jones to the Level 7 position following his recommendation for appointment to this position by the selection panel following the involvement of the respondent’s Director General, Mr Piper.  The respondent argues that it was open to Mr Piper to become involved in the process of appointing a person to this Level 7 position.  Even though the respondent’s Executive Director, Mr Harvey was delegated by the Director General to appoint a person to the Level 7 position, s59(1) of the Interpretation Act 1984 does not preclude a person who delegates any power or duty from becoming involved or exercising or performing at any time a power or duty so delegated.  It was therefore open to the respondent at any time before Mr Jones accepted an unequivocal offer of appointment to refuse to appoint him.

8            The respondent maintains that what has occurred in this instance can only be characterised as a refusal to appoint Mr Jones to the Level 7 position following his recommendation for appointment by the selection panel.

9            The respondent relies on s80E(7) of the Act which excludes from the Arbitrator’s jurisdiction any matter in respect of which a procedure referred to in s97(1)(a) of the Public Sector Management Act 1994 (“the PSM Act”) is or may be prescribed under that act.  This section of the PSM Act provides for the making of regulations to enable employees and other persons to obtain relief in respect of breaches of public sector standards.  The Public Sector Management (Examination and Review Procedures) Regulations 2001, made under section 97(1)(a) specifically provide at Regulation 5(2)(a) for a person to lodge a claim where the person considers that a public sector body is in breach of the Recruitment, Selection and Appointment Standard in relation to a decision made or action taken:

“(i) to appoint or not appoint a person to fill a vacancy; or

(ii) to select or not select a person to form part of an appointment pool;”

where that person is adversely affected by that decision or action.

As this standard is in place and given that Mr Jones’ complaint falls within its ambit then the Arbitrator is excluded from dealing with this issue given the terms of s80E(7) of the Act.

10         The respondent also maintains that where there has been a statutory illegality not an unlawful administrative act as argued by the applicant then s80E(7) of the Act and s97(1)(a) of the PSM Act are excluded from applying.

Applicant’s submissions

11         The applicant maintains that there is no question that Mr Jones is a government officer or that the application was properly commenced by a registered organisation under s80F of the Act in relation to an industrial matter.  The applicant seeks to have the Arbitrator exercise its specific power under s80E(5) of the Act to nullify the actions taken by the respondent in relation to a government officer.

12         The applicant submits that as this application does not come within the ambit of any public sector standard the Arbitrator is therefore not excluded by the operation of s80E(7) of the Act and s97(1)(a) of the PSM Act from dealing with this application.  The applicant maintains that even though this issue is about the failure to appoint a government officer to a position it does not involve the normal events relating to the Recruitment, Selection and Appointment Standard.  If it did so, the applicant concedes that the issue would be a matter that does not attract the Arbitrator’s jurisdiction.  Rather, the applicant argues this claim concerns the unlawful interference by the Director General, Mr Piper in Mr Jones’ appointment to the Level 7 position after the selection process was completed.

13         This application seeks to have the Arbitrator enquire into the Director General’s actions in what the applicant claims was an improper and unlawful interference in the selection process for this Level 7 position.  The applicant argues that if it was not for the actions of the Director General, then Mr Jones would have been appointed to the Level 7 position.

14         The applicant maintains that when the Director General became involved in the selection process this constituted an exercise of administrative power in a manner contrary to the principles of administrative law.  The relief sought by the applicant is to have this unlawful exercise of power declared void and for the selection and appointment process to proceed as it would have, had the unlawful action not occurred.  The applicant maintains as decisions made by the Director General of a public sector organisation in relation to employees constitute an exercise of power derived from the PSM Act the principles of administrative law therefore apply.  The applicant relies on the Civil Service Association of Western Australia Incorporated v Director General, Education Department of WA [2002] 82 WAIG 2982 at p2983 in support of its argument.  In this case Kenner C stated:

“I accept the broad proposition advanced by the applicant that public sector and private sector employment is different, in that public sector bodies are subject to general administrative law principles in the application of statutory rules, regulations and Acts of Parliament.  Considerations relevant to the contract of employment are of course important, but they are not the only considerations in public sector employment: see generally Aspects of Public Sector Employment Law 1988, G McCarry; Malloch v Aberdeen (1973) 1 WLR 1578.”

15         The applicant maintains the Arbitrator has power to void an unlawful decision and relies on the decision in Civil Service Association of WA Incorporated v Director General, Ministry of Justice [2002] 82 WAIG 2858 at 2862 in support of its argument.

16         The applicant claims that the respondent’s Director General acted unlawfully on the following grounds:

1. Once a power is delegated the person with the delegated power must act without interference and that an exercise of discretionary power at the direction or the behest of another person is an improper and unlawful exercise of power.

2. It is unlawful for the Director General to seek to direct the Executive Director (who was delegated the power to make the particular decision) in the exercise of his powers.  In accepting and acting on that direction the Executive Director rendered his subsequent decision unlawful.

3. The Executive Director acted unlawfully when he rescinded the decision that Mr Jones be selected for appointment.

4. A decision maker should only take into consideration issues that are relevant to the decision.  It is an improper and unlawful exercise of power if irrelevant considerations affect the decision.  (Roberts v Hopwood [1925] AC 578 House of Lords (England)).  The Executive Director should not have taken account of the Director General’s comments about Mr Jones, which were received after the selection process had been completed.

5. The actions of the respondent in interfering with the selection process amounted to using the process for performance management of Mr Jones, which is an improper purpose (R v Toohey (Aboriginal Land Commissioner) Ex Parte Northern Land Council (1981) 151 CLR 170).

6. Reasonable expectation and estoppel are legal doctrines not covered by the standards and it is open to the Commission to take these matters into account when dealing with this matter.

17         The applicant maintains that the remedy sought by this application is one within the Arbitrator’s powers and argues that the arbitrator has the power to declare certain actions void and to issue any appropriate additional orders requiring the respondent to act lawfully when completing its administrative tasks.

Findings and Conclusions

18         Section 80E(7) of the Act limits the jurisdiction conferred on the Arbitrator under the Act as this section prevents the Arbitrator from dealing with any matter referred to in s97(1)(a) of the PSM Act.  Section 97(1)(a) of the PSM Act reads as follows:

“(1) The functions of the Commissioner under this Part are:

(a) to make recommendations to the Minister on the making, amendment or repeal of regulations prescribing procedures, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of public sector standards.”

Additionally, s23(2a) of the Act limits jurisdiction:

“(2a) Notwithstanding subsections (1) and (2), the Commission does not have jurisdiction to enquire into or deal with any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.”

19         Section 80E(1) of the Act reads as follows:

“(1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a Government officer, a group of Government officers or Government officers generally.”

20         Section 80E(5) of the Act prescribes what the Arbitrator may do in the exercise of his or her jurisdiction:

“(5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any Government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.”

21         I accept that Mr Jones is a government officer and that this issue concerns an industrial matter as defined in the Act as it relates to Mr Jones’ rights as an employee.

22         The question to be determined in this case is whether or not the relief sought by the applicant relates to a breach of a public sector standard specifically the standard applying to recruitment, selection and appointment.  The Recruitment, Selection and Appointment Standard is as follows:

“Outcome

The most suitable and available people are selected and appointed.

The Standard

The minimum standard of merit, equity and probity is met for recruitment, selection and appointment if:

 A proper assessment matches a candidate’s skills, knowledge and abilities with the work-related requirements of the job and the outcomes sought by the public sector body, which may include diversity.

 The process is open, competitive and free of bias, unlawful discrimination, nepotism or patronage.

 Decisions are transparent and capable of review.”

It is also the case that regulations exist that allow a claim in relation to a breach of this standard to be lodged where a decision to appoint or not appoint a person to fill a vacancy has been made.

23         It is clear that the Arbitrator has no power to enquire into or deal with any matter dealing with a breach of a public sector standard.  However, it is also the case that s80E of the Act gives the Arbitrator jurisdiction to deal with an industrial matter concerning a government officer as long as the matter the subject of the application does not fall within the ambit of the relevant public sector standard.

24         On the information before me it is my view that the issues involved in this matter fall within the Arbitrators’ jurisdiction.  The applicant’s complaint centres on whether or not the Director General lawfully and validly exercised his statutory powers when he became involved in the selection process for the Level 7 position which resulted in a decision to reverse the recommendation to appoint Mr Jones to the Level 7 position.  In my view this is an issue which does not relate to a breach of the Recruitment, Selection and Appointment Standard as it is a dispute about the lawfulness of the Director General’s actions in intervening in the selection process relating to the Level 7 position after Mr Jones had been advised by the respondent that he had been recommended for appointment to this position.  In reaching this view I rely on the authority contained in the Full bench decision of the Civil Service Association of WA Incorporated v Director General, Ministry of Justice (op cit) and in particular at  p2862 where his Honour, the President stated:

“There was also a submission that there was no jurisdiction in the Commission to declare the transfer invalid because what was being sought was the judicial review of an administrative act.  That, it was submitted, on behalf of the respondent, was outside the jurisdiction of the Commission constituted by the Arbitrator, which, so constituted is not a superior court.  Jurisdiction in this matter was said to be conferred, as I have said, by s.80E of the Act.

S.80E(1) of the Act reads as follows:-

“(1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a Government officer, a group of Government officers or Government officers generally.”

S.80E(5) of the Act prescribes what the Arbitrator may do in the exercise of his jurisdiction.  S.80E(5) reads as follows:-

“80E. Jurisdiction of Arbitrator:

(5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any Government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.”

The section seems to prevent the Arbitrator interfering with any employer’s exercise of its/his/her duties under the section in relation to any government officer or office under the administration of the employer in relation to any matter within the jurisdiction of an Arbitrator.

However, it is clearly and unambiguously prescribed in s.80E(5) as follows, namely that:-

“any act, matter or thing done by an employer in relation to any such matter ((ie) within the jurisdiction of an Arbitrator), is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him or his jurisdiction in respect of that matter under this Division.”

It is quite clear, therefore, that the decision to transfer and the request or direction for transfer of Ms Bowles was within the jurisdicition (sic) of the Arbitrator.  I say that for the reason which I express hereinafter.

The purported transfer of Ms Bowles was the act, matter or thing was liable to be reviewed, nullified, modified or varied by the Arbitrator in this case.  That is so because it was an act, matter or thing purported to be done or done by an employer as prescribed in the PSM Act, s.80(E)(5), in relation to a matter within the jurisdiction of the Arbitrator.  The purported transfer was clearly a matter within the definition of “industrial matter” in s.7 of the Act because it affected or related to or pertained to the work privileges, rights or duties of both the employer and the employee in an “industry” as defined in s.7.

Accordingly, it was open to the Commission to find that it was unlawful, or ultra vires by way of the review, or to enable the Arbitrator to modify or vary the act of the respondent.

Most cogent in this case is the power which exists under s.80E(5) of the Act to nullify.  To “nullify” means, in its most relevant definition “To render or declare legally void or inoperative: to nullify a contract” (see “The Macquarie Dictionary” (3rd Edition)).

There is also, therefore, expressly conferred on the Arbitrator the power to nullify ((ie) to render or declare void the decision and other acts matters or things done to effect or to attempt to effect) the transfer to Hakea Prison of Ms Bowles.  Equally as cogent is the express power to review contained in s.80.E(5).

Since the express power and jurisdiction exists to nullify any act of the Chief Executive Officer, as an employer, it follows that the Arbitrator is not prevented from doing acts or giving orders or directions which are usually confined to the process of judicial review in a court in order to review, modify, vary or nullify such an act.  If there was a restriction on that power, Parliament would have expressly said so.  It did not.  Further, the act sought to be reviewed clearly fits within the definition of an “industrial matter” as it appears in s.7 of the Act (see also s.80E(1)).  I would therefore find that the power to nullify, modify or otherwise deal with the decision to transfer in accordance with the Act was within jurisdiction.  I say that because the decision to transfer Ms Bowles and the purported transfer of Ms Bowles was an act which affected and directly related to the rights, duties and obligations of both an employer and an employee in an industry as defined.  The act sought to be nullified, modified, reviewed or varied was and is an act, matter or thing done by an employer in relation to a matter within the jurisdiction of the Arbitrator namely an industrial matter relating to a government officer (see s.80E(1)).  It is therefore within jurisdiction whether the act complained of is or was an administrative act or not.

There was, therefore, clearly, express jurisdiction to vary modify or indeed to render void by declaration all or any of the acts, matters or things done effected or attempted to be done or effected by the respondent.

In that this related to what was done or sought to be done pursuant to statutory power under the PSM Act there was clear jurisdiction to nullify, vary or modify what was done.

The Ishmael Case (op cit) is authority for a number of propositions.  These include S80E(7) of the Act which deprives the Arbitrator of jurisdiction to enquire into or deal with or refer to the Commission in Court Session or the Full Bench any matter in which a procedure referred to in s.97(1)(a) of the PSM Act is or may be prescribed under that Act.

However, the question for the Arbitrator was not and could never be whether there was a breach of the prescribed standards, because the prescribed standards could only be applicable to an act of transfer or purported act of transfer which was lawful and/or within power, not one which was void.  S.97(1)(a) of the PSM Act does not operate in its terms, it is trite to observe, to deprive the Arbitrator of jurisdiction to determine whether there is a valid exercise of power under s.65 of the PSM Act.  Indeed, it confers it.”

25         Given this authority and given the terms of s80(E)(5) of the Act it is my view that the Arbitrator has the power to review the lawfulness the Director General’s actions in relation to this matter.

26         I therefore find that the Arbitrator has jurisdiction to deal with this application.