2007 WAIRC 00396

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 00396

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
SENIOR COMMISSIONER J H SMITH
COMMISSIONER J L HARRISON

HEARD
:
THURSDAY, 8 MARCH 2007

DELIVERED : THURSDAY, 26 APRIL 2007

FILE NO. : FBA 37 OF 2006

BETWEEN
:
HEALTH SERVICES UNION OF WESTERN AUSTRALIA (UNION OF WORKERS)
Appellant

AND

DIRECTOR GENERAL OF HEALTH AS DELEGATE OF THE HON. MINISTER FOR HEALTH IN HIS INCORPORATED CAPACITY UNDER S.7 OF THE HOSPITALS AND HEALTH SERVICES ACT 1927 (WA) AS THE METROPOLITAN HEALTH SERVICE
Respondent

ON APPEAL FROM:

JURISDICTION : PUBLIC SERVICE ARBITRATOR
CORAM : COMMISSIONER P E SCOTT
CITATION : (2006) 86 WAIG 3197
FILE NO : PSACR 15 OF 2006

CatchWords:
Industrial Law (WA) - Appeal against decision of Public Service Arbitrator - Review sought of classification of position pursuant to s80E of the Industrial Relations Act 1979 (WA) - Jurisdiction of Arbitrator - Applicability of s80G(2) of the Industrial Relations Act 1979 (WA) - Meaning of the word "decision" in the context of s80G - Issues relating to "privative clause" and relevant authorities - Application of the Statement of Principles to the claim before the Arbitrator - Whether the error of the Arbitrator was a "jurisdictional error" and relevant authorities - Appeal allowed.

Legislation:
Industrial Relations Act 1979 (WA) (as amended), s7, s12(1), s26, s43(1), s44, s49(2), s50, s51(4), s80C, s80D(1), s80E(1), (2)(a), (b), (5), s80F(1), (3), s80G(1), (2)

Industrial Relations Commission Regulations 2005, r102(1), r106(3)


Result:
Appeal allowed, decision of Arbitrator quashed, and matter remitted to an Arbitrator
REPRESENTATION:
Counsel:
APPELLANT :MR D H SCHAPPER (OF COUNSEL), BY LEAVE
RESPONDENT :MR D MATTHEWS (OF COUNSEL), BY LEAVE


Case(s) referred to in reasons:

Bennett v Higgins (2005) 146 IR 205
Craig v The State of South Australia (1995) 184 CLR 163
CSA v Commissioner, Public Service Commission (1994) 74 WAIG 801
Director General, Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244
Director General, Department of Justice v Civil Service Association of Western Australia Inc (2005) 149 IR 160
Enright v Sleepeezee Pty Ltd (2004) 84 WAIG 305
Grellier v Secondary Education Authority No. PSA 54 of 1996
Grumont v Director General, Education Department (2001) WAIRC 01817
Helm v Hansley Holdings Pty Ltd (In liq) (1999) 118 IR 126
Michael v Musk (2004) 148 A Crim R 140, [2004] WASCA 203
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales and Others (2003) 57 NSWLR 212
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs and Another (1996) 137 ALR 103
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72
Re Refugee Tribunal and Another; Ex parte Aala (2000) 204 CLR 82
Re Robbins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511
Re Sharkey and Others; Ex parte Robe River Mining Company Pty Ltd (1992) 46 IR 72
Said v District Court (NSW) (1996) 39 NSWLR 47
Samad and Others v District Court of New South Wales and Another (2002) 209 CLR 140
Solomons v District Court of New South Wales and Others (2002) 211 CLR 119
Wall v Department of Fisheries (2004) 84 WAIG 3895
Woolworths Ltd v Hawke and Others (1998) 45 NSWLR 13


Case(s) also cited:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Carbines v Powell (1925) 36 CLR 88
Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463
Great Fingall Consolidated Ltd v Sheehan (1906) 3 CLR 176
McEldowney v Forde [1969] 2 All ER 1039
Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54
Plaintiff S157 v Commonwealth [2003] HCA 2
Registrar v CEEEIPPAWU [1999] WASCA 170
Shanahan v Scott (1957) 96 CLR 245
South Australia v Tanner (1989) 166 CLR 161
Swan Hill Corporation v Bradbury (1937) 56 CLR 746
Webster v McIntosh (1980) 32 ALR 603




Reasons for Decision

RITTER AP:

Introduction
1 On 9 November 2006 the appellant filed a notice of appeal. The notice of appeal was in the form of Form 9 of the Industrial Relations Commission Regulations 2005 (the regulations) which pursuant to regulation 102(1) is a notice of appeal to the Full Bench. The notice said that the appellant had instituted an appeal against the decision of the Commission, constituted by Public Service Arbitrator Commissioner P E Scott (the Arbitrator) given on 19 October 2006 in matter No PSACR 15 of 2006.
2 The decision of the Arbitrator was an order that “this matter be, and is hereby dismissed”. The Arbitrator also published reasons for decision on 19 October 2006. The reasons and the order followed a hearing by the Arbitrator on 13 October 2006.

The Notice of Appeal
3 The grounds and particulars of appeal were set out in a schedule to the notice of appeal. At the commencement of the hearing of the appeal the appellant obtained the leave of the Full Bench to amend the grounds of appeal by the deletion of two paragraphs which were both numbered 5. The Full Bench informed the parties that a formal order would be included in the final orders issued by the Full Bench.
4 The grounds and particulars of appeal therefore are:-
“1. That the Public Service Arbitrator (“Arbitrator”) erred at law in determining that the matter could only be remedied in accordance with the Statement of Principles ((2006) 86 WAIG 1631 at 1657) in particular principle 1 and 2 and erred at law in finding that “Given the status of those Principles and their binding nature on a single Commissioner, I am unable to find that the matter is one which the Arbitrator can deal with”.

2. The Arbitrator erred at law in determining that the matter referred sought to amend the Award whereas the application sought to determine the classification of a position utilizing a broad banded classification structure which has already been determined within the Award.

3. That the Arbitrator erred at law by concluding that the act, matter or thing done by the respondent could not be reviewed, nullified, modified or varied by the arbitrator in accordance with Section 80E (5) of the Industrial Relations Act 1979 (“the Act”).

4. That the Arbitrator having found that jurisdiction existed to deal with the current classification of the Duty Medical Scientist position (Position Number PC 001535) did not refer the matter for determination consistent with the general provisions of the Industrial Relations Act in particular Section 6 Objects; Section 26 Commission to Act According to Equity and Good Conscience; and Section 80E Jurisdiction of Arbitrator.”

5 The reference to the Statement of Principles or the Principles, in the grounds of appeal, reasons of the Arbitrator and submissions of the parties is to the “Statement of Principles – July 2006”. This is Schedule 2 to the General Order and Order of the Commission in Court Session made on 4 July 2006 (the General Order). The General Order was made pursuant to s50 and s51(4) of the Industrial Relations Act 1979 (WA) (as amended) (the Act). Order 8 said that the “Statement of Principles – July 2006 as set out in Schedule 2 operate with effect on and from 7 July 2006” (See (2006) 86 WAIG 1656). They are also known as the State Wage Fixing Principles.

Factual Background
6 The initiating application was made by the appellant to the Arbitrator for a conference pursuant to s44 of the Act. The schedule to the application set out the “Relief Sought” and the “Grounds and Reasons”. As the contents of the schedule provide a good summary of the background to the application to the Arbitrator, it is appropriate to set it out in full, as follows, minus the five attachments to the schedule, which will then be referred to:-
“RELIEF SOUGHT:

1. That the classification level of the position of Duty Medical Scientist, Clinical Pathology (PC 001535) be reviewed by the Public Service Arbitrator.

2. That the decision of the respondent in declassifying the above position in 2001 was unfair and unreasonable.

3. That the classification of the above position be determined as being a HSU Level 6 (to be viewed as a Level 7 when the decision associated with the Health Professionals Review is implemented).

GROUNDS AND REASONS:

1. There is a significant history associated with the position of Duty Medical Scientist (A/Hours) Post No. 001535.

2. Prior to the change from Path Centre to Path West in 2005 the position was classified as a GOSAC Level 2/4 (equivalent to HSU Level 3/5).

3. However, this position had not always been classified as a GOSAC Level 2/4. The position in 2001 was downgraded from a GOSAC Level 5 (HSU Level 6) to a Level 2/4. The downgrading of the classification level for the position occurred when the position had fallen vacant. (See Attachment 1 for a copy of the minutes of the CRC meeting of November 2001 where the decision was made to declassify the position).

4. The HSU became aware of the issue associated with the classification of the Duty Medical Scientist when HSU took over coverage of the newly formed Path West in mid 2005.

5. The HSU wrote to the Chief Executive of Path West on 26 July 2005 to raise the issue and seek to have the position classified at Level 6. (See Attachment 2)

6. A meeting took place on 12 August between the HSU and Mr Taylor of Path West.

7. Subsequent to this meeting the HSU wrote to Path West, dated 31 August 2005, (See Attachment 3). In this correspondence the HSU included its submission regarding the decision to downgrade the position.

8. The Path West wrote back on 2 September 2005 (See Attachment 4) indicating agreement to review the position and suggesting an effective date of 31 August 2005 should the position be viewed as being a HSU Level 6.

9. Agreement was reached that a further review of position would be conducted to determine the appropriate classification for the position.

10. As a result of the agreement reached to review the classification of the position, Path West employed Austral Training and Human Resources to provide them with an assessment report and recommendation.

11. Austral delivered their report and recommendation, dated 15 March 2006. Austral Consultant, Mr Tony Pepper, recommended that the position remain at a HSU Level 3/5.

12. The Classification Review Committee met and considered the assessment report and recommended that the classification remain at the declassified level of Level 3/5 and this recommendation was then endorsed by the Chief Executive (See Attachment 5).

13. We disagree with the conclusions reached by the independent assessor and further the decision of the CRC and Chief Executive. We seek a review of the appropriate classification for the position and the process by which the position was downgraded in the first instance.

14. We say that the respondent was obliged when Path West was created and all positions were created within the new entity known as Path West to ensure that all positions were classified correctly.

15. Such other grounds and reasons as may be put before the Commission/Public Service Arbitrator.”

7 Attachment 1 to the schedule was as indicated in the “Grounds and Reasons”, the minutes of the meeting of the Classification Review Committee (CRC) on 7 November 2001. The classification of the position was Item 3. The minutes set out the discussion at the meeting and concluded with a resolution that position PC001161 and PC001535 be classified level 2/4.
8 Attachment 2 was as described, a letter from Mr Dan Hill the secretary of the appellant to Dr Peter Flett, the chief executive of PathWest dated 26 July 2005. The letter refers to the decision by the CRC in November 2001 to downgrade the position of duty medical scientist, after hours position No 001535, from level 6 (then GOSAC level 5) to level 3/5 (then GOSAC level 2/4).
9 Mr Hill’s letter said upon review of the relevant documents and the submissions made by the current occupant of the post the appellant had formed the view the position was erroneously and unfairly downgraded. An agreement was sought to reclassify the position to HSO level 6.
10 The letter said the circumstance fell outside of the usual reclassification process whereby changes in work value are identified and the case is made to the PathWest CRC. The letter said that under “section 80E of the Industrial Relations Act the [appellant] can seek review by the Public Service Arbitrator of the classification of this position, however, we believe it is a practical first step to see if we can reach agreement through negotiation”.
11 As stated in the “Grounds and Reasons”, attachment 3 is a letter from the appellant to PathWest dated 31 August 2005 which included the appellant’s submissions regarding the decision to downgrade the position. The submissions were five pages long and quite detailed.
12 Attachment 4 is as described in paragraph 8 of the “Grounds and Reasons”.
13 Attachment 5 is a letter to Mr Jason Cardey, the duty medical scientist of clinical pathology from the secretary of PathWest CRC which said that the CRC had recommended the position of duty medical scientist PC001535 remain as currently classified at HSU level 3/5. The letter said the recommendation was subsequently approved by the chief executive of PathWest.

Proceedings Before the Arbitrator
14 The notice of application for a s44 conference was dated 6 June 2006. The dispute was not settled by conciliation and on 3 October 2006 the Arbitrator published, pursuant to regulation 31, a Memorandum of Matters Referred for Hearing and Determination. The schedule contained a summary of the appellant’s position and said the appellant sought the Arbitrator to determine the value of the position in 2005 rather than undertake a reclassification review which required a demonstration of work value change between 2001 and 2005. It also said the appellant sought the reclassification of the position to be HSU level 6.
15 The schedule also set out the respondent’s position. This was contained in paragraphs 3 and 4 as follows:-
“3. The Respondent rejects the Applicant’s claims and says that:
(a) The application can only be processed by way of a current reclassification application. Any changes in the classification of the appeal position must be subject to significant work value change as prescribed in Principle 6 of the State Wage Case.
(b) There is no jurisdiction for the Arbitrator to determine the classification of the appeal position without a work value review.
(c) The Applicant’s member has a right to a review of the CRC’s determination of 15 March 2006 but no right to seek a review of the 2001 decision as at the time of that decision:
(i) The Applicant was not the relevant registered industrial organisation;
(ii) The HSU Award and Agreement had no application;
(iii) The current incumbent was not the incumbent of the appeal position; and
(iv) The current employer was not the employer.

4. The Respondent denies that the Applicant is entitled to the relief sought or any relief at all and requests that the application be dismissed.”

16 Although not material to the appeal the date specified as 15 March 2006 in paragraph (3)(c) ought to have been 15 May 2006.

The Arbitrator’s Jurisdiction
17 I have already mentioned that a hearing occurred on 13 October 2006. As will be referred to in greater detail below, at the hearing there was a lack of clarity as to the basis upon which the application was before the Arbitrator. The application commenced with a notice for a s44 conference. It was common ground at the appeal however that the hearing and order of dismissal by the Arbitrator was under s80E(1) or (2) of the Act. Section 80E of the Act is in the following terms:-
“80E. Jurisdiction of Arbitrator
(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.
(2) Without limiting the generality of subsection (1) the jurisdiction conferred by that subsection includes jurisdiction to deal with — 
(a) a claim in respect of the salary, range of salary or title allocated to the office occupied by a government officer and, where a range of salary was allocated to the office occupied by him, in respect of the particular salary within that range of salary allocated to him; and
(b) a claim in respect of a decision of an employer to downgrade any office that is vacant.
(3) An Arbitrator also has the jurisdiction conferred on an Arbitrator as a relevant industrial authority by —
(a) Part VID Division 5 Subdivision 3;
(b) section 97WI; and
(c) section 97WK.
(4) The jurisdiction referred to in subsection (3) is to be exercised in accordance with the relevant provisions of Part VID, and the provisions of —
(a) subsection (6); and
(b) section 80G,
do not apply to the exercise of any such jurisdiction by an 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.
(6) Notwithstanding subsection (1), but subject to subsection (7), an Arbitrator may — 
(a) with the consent of the Chief Commissioner refer an industrial matter referred to in subsection (1) or any part of that industrial matter to the Commission in Court Session for hearing and determination by the Commission in Court Session; and
(b) with the consent of the President refer to the Full Bench for hearing and determination by the Full Bench any question of law, including any question of interpretation of the rules of an organisation, arising in a matter before the Arbitrator,
and the Commission in Court Session or the Full Bench, as the case may be, may hear and determine the matter, or part thereof, or question, so referred.
(7) Notwithstanding subsections (1) and (6), an Arbitrator does not have jurisdiction to enquire into or deal with, or refer to the Commission in Court Session or the Full Bench, 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.”

The Claimed Applicability of Section 80G(2)
18 Ordinarily it may not matter if an application was made pursuant to s80E(1) or (2) but it has materiality because of the presence of s80G(2) of the Act.
19 Section 80G is in the following terms:-
“80G. Provisions of Part II Division 2 to apply
(1) Subject to this Division, the provisions of Part II Divisions 2 to 2G 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).”

20 At the hearing of the appeal, the respondent raised for the first time that the provisions of s80G(2) applied so that the appellant could not under s49 of the Act appeal against the decision of the Arbitrator.
21 Given the late notice of this submission the Full Bench made an order for the exchange after the hearing of the appeal of written submissions on this and other issues. The respondent filed on 19 March 2007 a document entitled “Respondent’s Further Submissions Pursuant to Orders Made on 8 March 2007”. In that document the respondent reiterated its position that s80G(2) applied. The appellant filed on 27 March 2007 a document entitled “Appellant’s Further Submissions Pursuant to Orders Made on 8 March 2007”. The appellant’s position was that s80G(2) did not apply.

The Submissions on Jurisdiction at the Hearing before the Arbitrator
22 As stated there was a lack of clarity as to the basis on which the application was before the Arbitrator for hearing.
23 The appellant’s advocate opened on the basis that the appellant sought the review and determination of an “industrial matter”, which was the classification or salary level of the appeal position, and that this should be achieved by looking at the duties, skills, responsibilities and conditions under which it operates and to review the decision of the CRC. (T3).
24 The advocate said that a second issue was whether the Arbitrator had jurisdiction to review the industrial matter without the appeal position being subject to a significant work value change as prescribed in “Principle 6 of the State Wage” case. It was submitted this was not the issue that had been referred for determination. (T3).
25 The advocate said that the abolition of the PathCentre had occurred on 12 July 2005 and at that time employees including Mr Cardey, the occupant of the appeal position, transferred into identical position numbers within the Metropolitan Health Service. The advocate said Mr Cardey raised with the appellant a concern about the classification level assigned to his position and about a previous decision of the PathCentre in 2001 to downgrade the classification of the position he now held. This was what led to the appellant writing to the respondent. (T4/5).
26 The advocate said the matter did not come to the Arbitrator by way of a Form 10 Notice of Appeal (under the regulations) as there was not a current reclassification request being considered by the parties and therefore it was appropriate for the appellant to refer the dispute between the parties to the Arbitrator via a Form 1 Notice of Application for a s44 compulsory conference. (T6).
27 It was submitted that, with respect to jurisdiction, neither the Act nor the regulations required, contrary to the position of the respondent, that the Arbitrator must resolve an industrial matter regarding a classification of the position exclusively by conducting a work value review. (T8).
28 The respondent’s advocate in his submissions referred to the appointment of Mr Cardey to take effect from 13 October 2003 as a GOSAC level 2.6, year 6. The appointment was at the maximum salary level for a level 2.4. Mr Cardey had applied for and accepted the position as a level 2.4. It was submitted Mr Cardey was subsequently transferred in accordance with the PathCentre’s directions of 2005 to an HSU level 3/5.6 and then subsequent to that, which applied from 12 July 2005, translated to a level 4/6.6, the top of the level 4/6 range. (T25).
29 The respondent’s advocate submitted that neither the appellant nor Mr Cardey had any interest in the position at the time in which it was downgraded and therefore as third parties had no recourse available to them for a review of that decision. Reference was made to s80E(2)(a) and (b) of the Act. (T26). Reference was then made to s80F(1) and s80F(3). (T26). The respondent’s advocate submitted there was no basis for the appellant to now file an application because they were not the relevant registered organisation at the time and the position was not now vacant. It was occupied and therefore s80E(2)(b) did not apply.
30 The respondent’s advocate said that the second issue raised was that the remedies sought in the application could only be processed by way of a reclassification application and that any changes in the classification of the Duty Medical Scientist must be subject to significant work value change as prescribed by “Principle 6 of the State Wage Case”. (T27). The respondent submitted the jurisdiction of the Arbitrator under s80E(2), when looking at the salary range or classification level of a position, could only be done in respect to work value. (T29).
31 The respondent’s advocate then made submissions about prejudice (T30) and estoppel. (T31).
32 In reply, the appellant’s advocate submitted the issue fell within the general provisions of s80E(1). It was submitted it was an industrial matter referred to the Arbitrator via s44 as a compulsory conference. (T37). It was submitted that s26 of the Act also applied to the effect that the Commission should act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (T37).
33 It was also submitted that the issue was the classification of the position and that the employer under s80E(5) had agreed to review the classification of the position and therefore it was capable (under that subsection) of being reviewed, nullified, modified or varied by an Arbitrator. (T37).
34 It was finally submitted that the issue did not fall within any of the specific “Principles” because it was not a work value change issue and therefore the jurisdiction of the Arbitrator was to review, nullify or modify the decision of the employer utilising equity, good conscience and the substantial merits of the case without reference to technicality or legal forms. (T37).
35 The reference to the applicability of s26 of the Act was presumably pursuant to s80G(1) which has been quoted above. Part II Divisions 2 to 2G encompasses ss22A-49O of the Act and therefore obviously ss26 and 44.
36 In the Arbitrator’s reasons, which will be referred to in detail later, it was not made clear as to whether the Arbitrator thought that s80E(1), (2) or (5) applied.

Jurisdiction at First Instance and on Appeal Revisited
37 Section 80E(5) provides for the powers which may be exercised by an Arbitrator upon the referral of a matter pursuant to the provisions of s80F of the Act. Section 80F of the Act is as follows:-
“80F. By whom matters may be referred to Arbitrator
(1) Subject to subsections (2) and (3) an industrial matter may be referred to an Arbitrator under section 80E by an employer, organisation or association or by the Minister.
(2) A claim mentioned in section 80E(2)(a) may be referred to an Arbitrator by the government officer concerned, or by an organisation on his behalf, or by his employer.
(3) A claim mentioned in section 80E(2)(b) may be referred to an Arbitrator by an organisation or an employer.
(4) A government officer who is an employee under an employeremployee agreement may refer to an Arbitrator where an Arbitrator is the relevant industrial authority under Part VID —
(a) any question, dispute or difficulty that an Arbitrator has jurisdiction to determine under section 97WI; and
(b) an allegation referred to in section 97WK(2).”

38 It can be seen that the scheme of this section is that there is a division of industrial matters for the purpose of who may refer them to the Arbitrator under s80E. As an organisation, the appellant was entitled to refer a matter to an Arbitrator pursuant to s80F(1), (2) or (3).
39 The Act itself does not specify the method by which this referral should take place. Regulation 106 which is headed Reclassification Appeals provides in subregulation (1) that an application in respect of a claim under s80E(2)(a) and (b) of the Act may be commenced by filing a Notice of Appeal in the form of Form 10. Regulation 106(3) provides that a claim under s80E(2)(a) or (b) of the Act may be made at any time, provided however that in respect of a claim under s80E(2)(a) of the Act not more than one claim may be made in relation to the same office within a period of 12 months unless the duties and responsibilities of that office are altered within this period. As stated earlier, the present application was not commenced by a Notice of Appeal in the form of Form 10 but by way of an application for a conference pursuant to s44 of the Act.
40 Section 80E(1) and (2), combined with s80G are somewhat curious provisions. As will be set out later, the second reading speech, when s80G(2) was inserted into the Act, did not indicate why there was the limitation upon rights of an appeal to the Full Bench from a decision of an Arbitrator on a claim mentioned in s80E(2).
41 The opening words used in s80E(2) show that the jurisdiction there conferred upon the Arbitrator is a subset of s80E(1). The present matter which was referred to the Arbitrator certainly fell within the Arbitrator’s general jurisdiction as described in s80E(1).
42 If however the referral of the industrial matter involved a claim of the types specified in s80E(2), as a subset of s80E(1), then the limitation on appeal rights contained in s80G(2) applied.

The Claim Before the Arbitrator
43 The reasons for decision of the Arbitrator, although quoting s80E(1) and (2), did not specify which subparagraph the Arbitrator understood the application to have been made under.
44 Contrary to the submission of the respondent’s advocate at the hearing before the Arbitrator, in my opinion the claim was not of the type provided for in s80E(2)(b). That is, this was not a claim in respect of a decision of an employer to downgrade a vacant office. As set out above, the office was not vacant but it was occupied by Mr Cardey.
45 In my opinion however, the claim referred was within s80E(2)(a) of the Act. This was because it was a claim “in respect of the salary … allocated to the office occupied by a government officer …”. The claim was in respect of the salary occupied by Mr Cardey, as the appellant sought a review of the classification of the position held by Mr Cardey which in turn affected his salary. In my opinion this was a claim “in respect of the salary”.
46 The meaning of the expression “in respect of” has been considered in numerous cases.
47 In Bennett v Higgins (2005) 146 IR 205, Le Miere J, with whom Wheeler and Pullin JJ agreed, said at [31]:-
“The phrase “in respect of” has a very wide connotation and has been said to have the widest possible meaning of any expression intended to convey some connection or relation between two subject-matters to which the words refer: McDowell v Baker (1979) 144 CLR 413 and 419 per Gibbs J, but reflects the context in which it appears: Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45 at 47 and 51; Commissioner of Taxation (Cth) v Scully (2000) 201 CLR 148 at 171 [39].”

48 Further, McHugh J in Solomons v District Court of New South Wales and Others (2002) 211 CLR 119 said at [45] that:-
“That phrase has a very wide meaning. In the constitutional context, Latham CJ once said that “[n]o form of words has been suggested which would give a wider power”. This court has also given a wide meaning to the not dissimilar phrase “in respect of”, saying that it only requires “some discernible and rational link” between the matters in question.” (Footnotes omitted)

49 Merkel J summarised the effect of relevant but earlier High Court authorities in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs and Another (1996) 137 ALR 103 at 127-128. His Honour commented:-
“However, as was emphasised more recently in the High Court in Workers’ Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642 ; 81 ALR 260, the phrase must be construed in the context in which it appears.
It has been said, perhaps somewhat extravagantly, that the words “in respect of” “have the widest possible meaning of any expression intended to convey some connexion or relation between two subject matters to which the words refer”: Trustees Executors & Agency Co Ltd v Reilly, cited in State Government Insurance Office (Qld) v Crittenden. The words were cited again by Gibbs J in McDowell, and by Mason J in State Government Insurance Office (Qld) v Rees, when his Honour added the comment: “But, as with other words and expressions, the meaning to be ascribed to ‘in respect of’ depends very much on the context in which it is found”: at CLR 646-7; ALR 262 per Wilson and Gaudron JJ.
Undoubtedly the words “in respect of” have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency co. Ltd v Reilly, that “they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer”. The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends (at CLR 653-4; ALR 267 per Deane, Dawson and Toohey JJ).
In Technical Products Pty Ltd v State Government Insurance Office (Queensland) (1989) 167 CLR 45 ; 85 ALR 173 the words were said (at CLR 47; ALR 175 per Brennan, Deane and Gaudron JJ) to “have a chameleon-like quality in that they commonly reflect the context in which they appear” and to “take their colour from the context in which they are found”: at CLR 51; ALR 177 per Dawson J.
Obviously in any particular instance where those words are used, questions of degree are involved in determining the materiality and sufficiency of the connection between the two relevant subject matters.”

50 In my opinion, in the context of s80E(2)(a) of the Act the words “in respect of” simply require in a broad sense, a connection between the claim and the specified subject matters. For this reason, as set out earlier, the claim made by the appellant was “in respect of the salary” “allocated to the office occupied by” Mr Cardey as “a government officer”. There was a connection between the claim made and the salary.
51 The applicability of s80G(2) will be considered after a discussion of the Arbitrator’s reasons.

The Arbitrator’s Reasons
52 As stated in the memorandum dated 3 October 2006 and quoted above, the respondent asserted before the Arbitrator that there was no jurisdiction for the Arbitrator to determine the classification of the appeal position without a work value review. Paragraph 4 of the schedule also set out the respondent’s position of denying the appellant was entitled to any relief and requested the application be dismissed.
53 The Arbitrator’s reasons for decision commenced with a quotation of the Memorandum. The reasons then related the agreed history of the matter between the parties. In addition to the information contained in the schedule to the s44 application, the Arbitrator recorded that the Western Australian Centre for Pathology and Medical Research (PathCentre) was abolished from 15 July 2005 and the Metropolitan Health Service took over the functions previously undertaken by the PathCentre, by what is now known as PathWest. The employees of the PathCentre had been covered by the Government Officers Salaries, Allowances and Conditions Award 1989 (“the GOSAC Award”) and the Government Officers Salaries Allowances and Conditions General Agreement 2004, an award and agreement to which the Civil Service Association of Western Australia Inc (the CSA) was a party. The reasons recorded that with the creation of PathWest, the positions of those employees were abolished and new positions were created, and due to the arrangements for industrial coverage, the positions became subject to the Hospital Salaried Officers Award 1968 and the Health Services Union – Department of Health – Health Service Salaried Officers State Industrial Agreement 2004 (the HSU Agreement), under the industrial coverage of the appellant. ([2]).
54 The reasons recorded that the arrangements included that the employees ceased to be employed or engaged by PathCentre and became employed or engaged by PathWest. The positions were translated into the structures of the Hospital Salaried Officers Award and the agreement that related to it. (See Western Australian Government Gazette, Tuesday 12 July 2006, No 131). ([3]).
55 The Arbitrator then referred to the downgrading of the position. The reasons also recorded that there was no suggestion that the CSA, the organisation with industrial coverage at the time, objected to the downgrading. ([4]).
56 The reasons recorded that Mr Cardey applied for and was appointed to the level 2/4 position on 2 October 2003. ([5]). The reasons then referred to the initiation of communications by Mr Hill in July 2005. ([6]). The reasons related the history of the matter as noted in the schedule to the application for the s44 conference. ([7] – [9]).
57 In paragraph [10] of the Arbitrator’s reasons it was summarised that the appellant said the Arbitrator was able to consider the matter and come to its own decision with a finding that the position ought to be classified at level 6. The reasons also said the respondent challenged the Arbitrator’s jurisdiction to deal with the matter and argued the only way that the classification could be considered is in accordance with the usual reclassification review which requires consideration of the Work Value Principle contained within the Statement of Principles.
58 Under the heading “The Matter for Consideration” the Arbitrator in paragraph [12] said it was the 2001 review and downgrading which was sought to be remedied, as well as a consideration of the position as it applied in 2005. The Arbitrator said that: “One would be hard pressed to conclude that it was fair and reasonable for the Commission to review a decision taken by a different employer, i.e. Path Centre some five years ago, when the then relevant union, the CSA had a right to challenge that downgrading and did not do so. It may be appropriate for the Commission to enter into a hearing and determination as to a dispute between the parties in respect of the proper classification of a position at this point, subject to whether it is within jurisdiction and subject to the application of the Statement of Principles.” From this it is clear the Arbitrator viewed the application as being one which was affected by the Statement of Principles.
59 The Arbitrator then quoted s80E(1) and (2) of the Act. At paragraph [14] the Arbitrator made a “finding” that the decision to downgrade as it related to the decision of PathCentre would have been within the jurisdiction of the Arbitrator at the time that PathCentre downgraded the position. The Arbitrator also said: “The current classification of the position as it is held by PathWest is able to be considered by the Arbitrator. As noted earlier, whether it is appropriate to consider a decision of an employer, not currently the employer, to downgrade the level of an office that was downgraded some 5 years ago is another matter.” ([14]).
60 The Arbitrator then said the issue “is not one so much of jurisdiction but of whether the Arbitrator is actually able to provide a remedy in the circumstances of the operation of the Statement of Principles”. This confirmed the position of the Arbitrator as set out in paragraph [12] that the claim was subject to the application of the Statement of Principles. ([15]).
61 The Arbitrator then quoted paragraphs 1 and 2 of the Statement of Principles.
62 At paragraph [17] the Arbitrator said the claim was clearly for the purpose of the Arbitrator determining the value of the position with a view to changing that classification to HSU level 6.
63 The Arbitrator said she examined Principle 2 which is headed “When an Award or relevant Agreement may be varied or another Award made without the claim being regarded as above or below the Safety Net”. The Arbitrator set out reasons for, in effect, concluding the claim did not come within paragraph 2 of the Statement of Principles.
64 In paragraph [20] the Arbitrator reasoned therefore that she was “unable to find that the matter before the Arbitrator meets any of the matters which the Commission (in this case, the Arbitrator) is able to consider in accordance with the Statement of Principles. The usual basis upon which reclassifications are able to proceed pursuant to the Statement of Principles is only in accordance with Principle 6 – Work Value Changes. That Principle requires that there be a demonstration of ‘changes in the nature of the work, skill and responsibility required or the conditions under which work is performed’. Those changes ‘should constitute such a significant net addition to work requirements as to warrant the creation of a new classification or upgrading to a higher classification’.” The Arbitrator then said that the appellant did not seek a reclassification based upon the requirements of Principle 6. The Arbitrator said that given “the status of those Principles and their binding nature on a single Commissioner, I am unable to find that the matter is one which the Arbitrator can deal with”. ([20]).
65 The Arbitrator concluded that there was no “capacity for the Arbitrator to consider this matter and it will be dismissed”.

The Applicability of Section 80G(2)
66 Given the submission by the respondent that s80G(2) of the Act applied and that the appellant could not therefore appeal to the Full Bench, it is appropriate to first consider this issue.

(a) The Respondent’s Submissions
67 In the respondent’s further written submissions it was asserted that contrary to the position of the appellant, the Arbitrator had exercised her jurisdiction by enquiring into and dealing with the appellant’s reclassification application. It was submitted the Arbitrator’s statements in her reasons should be read as a whole and the Arbitrator had expressly acknowledged she had jurisdiction to enquire into and deal with a government officer reclassification application. It was said the Arbitrator exercised her jurisdiction in her reasons for decision in paragraphs [14]-[20]. Parts of paragraphs [15] and [20] of the Arbitrator’s reasons were quoted. It was said the Arbitrator decided the matter and gave her reasons for dismissing the application and there was no failure on the Arbitrator’s part to exercise jurisdiction.
68 It was said that in Director General, Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244 at [29] the Industrial Appeal Court had correctly decided the Arbitrator’s jurisdiction was wide, but in this case the Arbitrator had exercised her jurisdiction, but considered her decision had to be made in accordance with what she considered to be the usual approach.
69 The respondent also submitted s80G of the Act was inserted by s47 of the Acts Amendment and Repeal (Industrial Relations) (No 2) Act 1984 (Act No 94 of 1994). The second reading speech did not make any specific reference to s80G. (Western Australia, Parliamentary Debates, Legislative Council, 4 April 1984, page 6651).

(b) The Appellant’s Submissions
70 The appellant in their further written submissions asserted s80G(2) had no application for two reasons. The first was that if the order of the Arbitrator dismissing the application was a decision at all, it was not a “decision … on a claim” as in s80G(2). It was submitted the phrase “decision … on a claim” requires that the decision directly decide the claim on its merits. It was submitted the decision appealed from did not do this as the Arbitrator reasoned the Principles prevented her from so doing. It was submitted the position may be different if a phrase had been used such as “decision … in relation to a claim”, but the use of the direct and immediate connector “on” and not “in relation to” or an equivalent phrase only prevents an appeal where the merits of the reclassification matter had been decided.
71 Secondly it was submitted that in any event the decision to dismiss the appellant’s claim was not a decision at all. This was based on the reasoning of a majority of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. The appellant’s submissions quoted what was said to be paragraph [77] of the reasons. The context of the observations made by their Honours was s474(1) of the Migration Act 1958 (Cth). This provided that a “privative clause decision” was final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court, and that it was not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. Section 474(2) provided that a “privative clause decision” means “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)”. The matter came before the High Court by way of a case stated. The background was that the plaintiff, a citizen of Bangladesh, had been refused a protection visa. This decision was affirmed by the Refugee Review Tribunal. The plaintiff wished to challenge the decision on the ground that the Tribunal’s decision was made in breach of the rules of procedural fairness. Section 474 potentially created an obstacle to the plaintiff.
72 The reported version of the reasons is different from that which was quoted by the appellant in their further written submissions. They appear to have been quoted from the [2003] HCA 2 version of the decision. The paragraph quoted is paragraph [76] of the CLR reported decision and the footnote numbers are different from those quoted by the appellant. The relevant reported passage of the reasons of the majority is in the following form. In the quotation which follows, the footnotes are omitted:-
“[76] Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression "decision[s] ... made under this Act" must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all". Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties" or to observe "inviolable limitations or restraints", the decision in question cannot properly be described in the terms used in s 474(2) as "a decision ... made under this Act" and is, thus, not a "privative clause decision" as defined in s 474(2) and (3) of the Act.”

73 The appellant in their submissions emphasised the reference to the “general principle” and the statement that an administrative decision involving jurisdictional error is no decision at all.
74 The appellant then submitted the Arbitrator had failed to enquire into and deal with the merits of the appellant’s claim because of a wrong view that the Arbitrator was prevented from doing so or that it was pointless to do so because no remedy could be granted. It was submitted the Principles did not apply and hence the claim could be dealt with on its merits and a remedy could be granted. It was submitted that there was a refusal by the Arbitrator to perform the duty imposed by the Act for which, in the absence of an appeal, mandamus would lie. It was submitted the decision to dismiss the appellant’s claim was not a decision at all in that it was based on an error of law going to jurisdiction. It was submitted it was a wrongful refusal to decide the matter. Section 80G(2) did not therefore apply, as it only applies to “a decision of an Arbitrator on a claim”.

(c) Decision on a Claim
75 I do not accept the first submission made by the appellant on this issue. In my opinion a decision on a claim does not require a decision on the merits. The word “decision” is defined in s7 of the Act to include an “award, order, declaration or finding”. This definition is applicable to s80G as s7(1) provides that the definitions apply in “this Act, unless the contrary intention appears …”. There is no contrary intention in s80G(2). The definition of “decision” in its terms and because it is inclusive, is a broad definition. In this instance there was an order made by the Arbitrator that the matter was dismissed. That order is a decision under s7. It was therefore, absent the issue of jurisdictional error to be later considered, a “decision” for the purposes of s80G of the Act.
76 Further, in my opinion it was a decision on the claim under s80E(2) and referred pursuant to s80F of the Act. As quoted above, the exclusive jurisdiction of the Arbitrator under s80E(2) is to deal with the types of claim there specified. In my opinion a decision by an Arbitrator either that they do not have jurisdiction to deal with the claim, or that they have no authority to grant a remedy in relation to a claim that is within jurisdiction, is a decision “on a claim mentioned in section 80E(2)”.

(d) A Decision?
77 This leaves the second basis upon which the appellant sought to avoid the consequence of s80G(2). As set out above, the argument was that in accordance with Plaintiff S157/2002, as a matter of general principle, “an administrative decision which involves jurisdictional error is ‘regarded, in law, as no decision at all’”.
78 Section 80G(2) is a type of “privative clause” in that it restricts an otherwise entitlement to appellate review. The authorities establish that a section like this should be strictly construed.
79 As stated by justices of the High Court in Plaintiff S157/2002 at [72] and also Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [48] this is because sections like s80G(2) of the Act, which restrict appellate rights are circumscribed by the presumption that Parliament does not intend to cut down the jurisdiction of the courts, save to the extent that the legislation in question expressly so states or necessarily implies.
80 The statement in Plaintiff S157/2002 relied on by the appellant is about an “administrative decision”. In my opinion however the decision made by the Arbitrator cannot be so characterised.
81 Section 12(1) of the Act says the Commission is a court of record. The “Commission” is defined in s7 to mean the body continued and constituted under the Act under the name of “The Western Australian Industrial Relations Commission”. Section 80C of the Act defines an “Arbitrator” to mean “the Commission constituted by a public service arbitrator appointed under this Division”. Commissioner Scott has been appointed as a Public Service Arbitrator pursuant to s80D(1) of the Act. Accordingly, when Commissioner Scott acts as an Arbitrator it is as a constituent part of the Commission. Therefore s12 of the Act applies. Whilst in some circumstances the exercise of the powers of the Commission may not be those of a court, the relevant authorities dictate that when performing the arbitral functions contained in s80E(1), (2) and (5) of the Act the Arbitrator is acting as a court. (See Helm v Hansley Holdings Pty Ltd (In liq) (1999) 118 IR 126 and Enright v Sleepeezee Pty Ltd (2004) 84 WAIG 305).
82 This conclusion leads to the issue of whether what was said in Plaintiff S157/2002 at [75] also applies to a decision of a “court” like the Commission, which has a limited, statutory based jurisdiction (Such a court is often referred to as an “inferior court”). This issue was not addressed in either Plaintiff S157/2002 or Craig v The State of South Australia (1995) 184 CLR 163, a decision of the High Court which discussed jurisdictional errors by an “inferior court”.
83 In Halsbury’s Laws of Australia, Administrative Law, paragraph [10 – 2527] it is stated that where “a decision of an inferior court or tribunal is affected by jurisdictional error, the decision is void. This means that there is nothing for a privative clause to protect, for there is no decision in exercise of jurisdiction under the empowering act.” (Footnotes omitted). The footnotes to this statement do not however include authorities about an “inferior court”.
84 There is however a particularly relevant authority on point. This is Re Sharkey and Others; Ex parte Robe River Mining Company Pty Ltd (1992) 46 IR 72. This was a decision of the Full Court of the Supreme Court of Western Australia involving a decision of the Full Bench under the Act. The applicant before the Full Court had been refused leave, by the Full Bench, to object to an amalgamation application filed in the Commission by two unions. The applicant sought orders for writs of certiorari, prohibition and mandamus against the Full Bench. The application involved the correct construction of s72 of the Act. Also relevant to the success of the application was the contents of the then s34 of the Act. This contained a privative clause, restricting the granting of prerogative writs against decisions of the Commission.
85 Nicholson J, with whom Pidgeon ACJ and Ipp J agreed (although both also wrote reasons of their own), said at page 79 the Full Bench had erred in the construction it had placed on s72 of the Act and as a consequence the applicant was denied standing as an objector. At page 81 his Honour said that it was “well established that a constructive refusal to exercise jurisdiction is not protected from review by provisions” of the character of s34 of the Act. His Honour cited a number of authorities to support this proposition, including High Court authorities. At page 83 his Honour concluded that the misconstruction placed on s72 of the Act by the Full Bench constituted a “misconception by it of its jurisdiction and a failure by it to consider the true question which the Full Bench was bound to decide”. His Honour said that this was a jurisdictional error. His Honour held that s34 of the Act did not oust the jurisdiction of the Supreme Court to provide prerogative relief for the jurisdictional error made. (83).
86 Ipp J at page 85 repeated the point made by Nicholson J about a constructive refusal to exercise jurisdiction, and cited a number of authorities also cited by Nicholson J. Importantly, Ipp J at page 86 said that “a decision to refuse to exercise jurisdiction, albeit a constructive refusal, is in effect no decision”.
87 Two decisions of the New South Wales Court of Appeal establish that a different approach was necessary, in relation to s179 of the Industrial Relations Act 1996 (NSW), which provided that, subject to the exercise of a right of appeal to the Full Bench of the Commission, “a decision or purported decision of the Commission” was final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal whether on an issue of fact, law, jurisdiction or otherwise. In these decisions it was material that s179 unlike s80G(2) of the Act, referred to a “purported decision”. (See Woolworths Ltd v Hawke and Others (1998) 45 NSWLR 13 and Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales and Others (2003) 57 NSWLR 212).
88 In my opinion, supported by the decision of Re Sharkey, where the Arbitrator makes a decision effected by jurisdictional error it is in law “no decision”. Applied to this appeal it means that if the Arbitrator’s purported “decision” was infected with an error of this type, s80G(2) would not apply to defeat the appellant’s otherwise right of appeal, under s49 of the Act, because there had not been “a decision” of the Arbitrator.
89 The next issue is what is a jurisdictional error for this purpose. The High Court in Craig at 177-180 emphasised that there is a difference between what constitutes a jurisdictional error by an administrative tribunal and an inferior court. Illustrations of jurisdictional error by an inferior court are provided by Re Sharkey.
90 Relevantly, the court in Craig said there would be jurisdictional error committed by an inferior court if:-
(a) It disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the exercise of any authority to make an order or decision in the circumstances of the particular case (177).
(b) It misconstrues the statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the case (177-178).
91 Another example of a jurisdictional error by an inferior court, is provided by the reasons of Gleeson CJ and McHugh J in Samad and Others v District Court of New South Wales and Another (2002) 209 CLR 140. Their Honours’ joint reasons agreed with the conclusion reached by the joint reasons of Gaudron, Gummow and Callanan JJ but the reasons of the latter joint judgment did not touch upon the issue relevant to the present appeal. The appeal before the High Court involved a decision by the District Court of New South Wales, as an appeal de novo, from a decision by the Director General of the New South Wales Department of Health to cancel a license to supply drugs of addiction. The decision of the District Court was determined against the former licensee. That party then applied to the Court of Appeal of New South Wales for an order in the nature of certiorari to quash the decision of the District Court judge. The Court of Appeal refused the application and the former licensee appealed, on a grant of special leave, to the High Court.
92 Gleeson CJ and McHugh J at page 150 agreed with the contention by the former licensee, that the District Court judge had erred in his construction of the relevant regulation, as excluding a discretion not to cancel a license where a ground for cancellation had been made out. Their Honours said that the error was a jurisdictional error and cited Craig at page 177. At page 151, Gleeson CJ and McHugh J said that if the conclusions by the District Court judge about the nature of the decision he had to make were “erroneous in law, then he based his decision upon a misconception of the nature or limits of his jurisdiction”. Their Honours allowed the appeal and said certiorari should lie on the basis that the decision made by the District Court judge was a decision which should and ought to be quashed on the basis that it contained a jurisdictional error.
93 Furthermore, in a trilogy of decisions of the Full Court of the Supreme Court of Western Australia, the Court decided that certiorari could lie against decisions made by the Court of Petty Sessions for jurisdictional error. In at least two of these decisions, the Court held that certiorari would lie despite a privative clause contained in s147 of the Justices Act 1902 (WA). The cases are Re City of Melville; Ex parte J-Corp Pty Ltd (1998) 20 WAR 72; Re Robbins SM; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511 and Michael v Musk (2004) 148 A Crim R 140, [2004] WASCA 203. In City of Melville, Ipp and Steytler JJ at 76-77 quoted from Craig and Malcolm CJ in Talbot v Lane (1994) 14 WAR 120 at 133 and said an order would constitute a jurisdictional error if it was “made by an inferior court on the basis of a misapprehension or disregard of the nature of limits or powers”.
94 Also, in Said v District Court (NSW) (1996) 39 NSWLR 47, cited by Ipp and Steytler JJ in City of Melville, the Court of Appeal of NSW ordered a decision made by a District Court judge be quashed as it was infected by a jurisdictional error. This was because the decision made by the District Court judge was “based upon a misconception of the nature and limits of his jurisdiction”. (Gleeson CJ at page 56; Priestley and Meagher JJ agreeing).
95 Each of these decisions provide illustrations of the type of errors, committed by an “inferior court” which are characterised as jurisdictional errors and lead to the conclusion that there had been no “decision” for the purposes of s80G(2) of the Act.
96 Also Hayne J in Bhardwaj at [149] referred to an error comitted by the Refugee Review Tribunal as being a jurisdictional error because “what it did was not authorised by the Act and did not constitute performance of its duty under the Act” (See also Re Refugee Tribunal and Another; Ex parte Aala (2000) 204 CLR 82 per Hayne J at [163]).
97 In Judicial Review of Administrative Action, Aronson and Others, Lawbook Company, Third Edition, 2004, at page 227, it is stated, citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 that:-
“Jurisdictional requirements are preconditions to the validity of the exercise of public power. If they are absent or breached, the resulting decision or conduct is invalid. This means that where statutory power is in issue, the ultimate questions are whether the statute has indicated that breach of one of its requirements is to result in invalidity, and similarly, whether the statute has indicated that breach of a common law requirement is not to result in invalidity.” (Footnotes omitted)

98 Further, at page 620 it is stated that “jurisdictional” is now a conclusory label which “stands as a shorthand for all of the grounds for alleging that decision makers lacked legal authority to act or decide as they have done”. (Footnotes omitted). In my opinion the observations made by Hayne J and Aronson are apposite to the present appeal.
99 Attention must therefore be directed to the decision which was made by the Arbitrator, whether it was attended with any error, the significance of such an error being made in the context of the duties reposed in the Arbitrator to make decisions under the Act, and therefore whether the consequence of such an error is that it is “jurisdictional” in nature.
100 To consider this it is necessary to firstly see whether any of the grounds of appeal can be established.

Ground 1
101 The ground is quoted above. The appellant in support of this ground provided to the Full Bench a copy of the HSU Agreement. Although referred to in the reasons of the Arbitrator it seems the HSU Agreement was not formally before her. The document was however provided to the Full Bench without objection. The HSU Agreement was an agreement registered by the Commission.
102 The appellant submitted that what it wanted the Arbitrator to consider was whether a specified position, assigned to a level by the respondent within the HSU Agreement, was fair and appropriate. The position itself was not contained in or referred to in the HSU Agreement. Instead, the HSU Agreement clause 13 – Salaries and Payment, provided for various salary levels. The assignment of a position to a level within that clause was undertaken by the respondent administratively pursuant to clause 13(4)(d).
103 Accordingly, it was submitted the claim before the Arbitrator did not seek the variation of the HSU agreement or any award. It sought to have the administrative decision of the respondent to assign the appeal position to a particular level, reviewed by the Arbitrator on the merits.
104 To determine the ground it is necessary to review the basis on which the Arbitrator dismissed the claim. The reasons of the Arbitrator are however, and with great respect, attendant with some confusion on this issue.
105 In paragraph [12] the Arbitrator referred to possibly having a hearing and determination of the claim “subject to whether it is within jurisdiction and subject to the application of the Statement of Principles”.
106 In paragraph [14] the Arbitrator referred to having jurisdiction in the past tense, referring to the time that the PathCentre downgraded the position. The Arbitrator then said that “the current classification of the position as it is held by PathWest is able to be considered by the Arbitrator”. This appears to be a statement that the Arbitrator had jurisdiction. This view is enhanced by paragraph [15] where the Arbitrator said the issue was not “so much of jurisdiction but of whether the Arbitrator is actually able to provide a remedy in the circumstances of the operation of the Statement of Principles”.
107 After reviewing the applicability of the Statement of Principles the Arbitrator at paragraph [20] said the matter before her did not meet “any of the matters which the Commission (in this case, the Arbitrator) is able to consider in accordance with the Statement of Principles”. The reference to “able to consider”, is suggestive of a conclusion that the Arbitrator lacked jurisdiction. This position is enhanced by the last sentence in paragraph [20] where the Arbitrator said “I am unable to find that the matter is one which the Arbitrator can deal with”. Further, in paragraph [21] the Arbitrator concluded there was “no capacity” for her to consider the matter.
108 Although I accept the respondent’s submission that the reasons of the Arbitrator must be read as a whole, as I have said and with great respect, engaging in this exercise produces some confusion.
109 The ground of appeal may however be considered on the basis that the Arbitrator either decided that because the matter did not fit within the Statement of Principles she lacked the jurisdiction to hear and determine the application, or alternatively although having jurisdiction she was, on the same basis, unable to provide a remedy. The next question is whether this was in error.
110 Sections 80E(1) and (2) of the Act provides the Arbitrator with exclusive jurisdiction to enquire into and deal with any industrial matter relating to amongst other things a government officer. There was no dispute that the matter before the Arbitrator related to a government officer or that it was an industrial matter. This was correct as the expression “industrial matter” is defined broadly in s7 of the Act and includes “any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry …” and “the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment”. Accordingly, the Arbitrator had exclusive jurisdiction to enquire into and deal with the claim referred to her.
111 Section 80E(1) of the Act does not in its terms state that the Arbitrator must enquire into and deal with an industrial matter where it has been referred under s80F, but it is implicit that this is to occur. Furthermore in this instance the Arbitrator prepared a Memorandum of Matters Referred for Hearing and Determination.
112 In Director General, Department of Justice v Civil Service Association of Western Australia Inc (2005) 149 IR 160, Wheeler and Le Miere JJ in discussing the interaction between s80E(1) and (5) said at [29]:-
“However, the powers of the Arbitrator are very wide. They are to inquire into and deal with any industrial matter. To the extent necessary, the exercise by an employer in relation to a government officer of a power relating to that industrial matter may be reviewed, nullified, modified, or varied by the Arbitrator.”

113 The Arbitrator did not enquire into and deal with the matter before her in any substantive way because of her view about the effect of the Statement of Principles. As stated, her conclusion was that because of the Statement of Principles she either lacked jurisdiction or alternatively was unable to provide a remedy in relation to the claim.
114 This directs attention to the interaction between s80E of the Act and the Statement of Principles.
115 The jurisdiction contained in s80E(1) and (2) of the Act is not in any way expressed to be the subject to any General Order, including the Statement of Principles. As long as there is an industrial matter before the Arbitrator of the type referred to in s80E(1), the Arbitrator has the jurisdiction to enquire into and deal with the matter.
116 The appellant submits that the Arbitrator “correctly concluded that the claim did not fit within any of the Principles” but wrongly concluded the claim could not be considered. It was submitted that the Arbitrator ought to have concluded that as the Principles did not apply to the claim, the matter fell to be determined by the exercise of the Arbitrator’s statutory discretion, untrammelled by the Principles. As stated the Statement of Principles is referred to in the General Order made by the Commission in Court Session on 4 July 2006.
117 The proceedings before the Arbitrator involved a registered “industrial agreement” as defined in s7 of the Act. Such an agreement may, relevantly, pursuant to s43(1) of the Act only be varied, renewed or cancelled by subsequent agreement between the parties. On this basis alone it would appear that the Principles could have no application to the formation of the terms of an industrial agreement by the Commission - as it has no arbitral role to play in this.
118 In any event a review of the Principles demonstrates its lack of applicability to agreements. The General Order contains nine orders. Of these, only orders 4, 8 and 9 do not refer to awards. Order 4 is about increases under State Wage Case Principles prior to 7 July 2006, except those resulting from enterprise agreements, not being used to offset the arbitrated safety net adjustment of $20.00 per week. The reference to the “arbitrated safety net adjustment of $20.00 per week”, is a reference to Order 1 which increases the weekly rates of pay for adults in each award of the Commission, other than awards set out in Schedule 1, by “the arbitrated safety net adjustment of $20.00 per week with effect on and from 7 July 2006”. Order 8 has already been referred to. Order 9 is simply about the publication of the clauses of awards varied by the General Order.
119 Additionally the only reference to agreements or registered agreements in the Principles is in Principles 1, 2(g) and (j) and 9(8).
120 Principle 1 of the Statement of Principles is headed “Role of Arbitration and the Award Safety Net”. It provides that:-
“Existing wages and conditions in awards and relevant agreements of the Commission constitute the safety net which protects the employees who may be unable to reach an industrial agreement.
Wages and conditions of employment maintained in awards in accordance with these Principles and through the operation of section 40B of the Act are the safety net.
These Principles do not have application to Enterprise Orders made under section 42I of the Act.”

121 Although Principle 1 refers in the first sentence to “relevant agreements”, it then refers to protecting employees “who may be unable to reach an industrial agreement”. It is not immediately apparent what the “relevant agreements” are. In any event however the HSU Agreement does represent an industrial agreement and accordingly the “wages and conditions” in the HSU Agreement do not fit within Principle 1 as being a safety net to protect employees who are “unable to reach an industrial agreement”. There is a further difficulty in understanding the precise ambit of Principle 1, with respect to agreements because the second paragraph refers to the safety net as being comprised by wages and conditions of employment maintained in awards and through the operation of s40B of the Act. Section 40B of the Act is about the variation of awards by the Commission of its own motion.
122 Principle 2 is headed “When an Award or relevant Agreement may be varied or another Award made without the claim being regarded as above or below the Safety Net” and provides in the first paragraph:-
“In the following circumstances an award or relevant agreement may, on application, be varied or another award made without the application being regarded as a claim for wages and/or conditions above or below the award safety net:”

123 The “circumstances” are then set out as (a) – (j).
124 It can be seen that the first paragraph of Principle 2 also refers to a “relevant agreement” but the context is the variation of the “relevant agreement” on application. The appellant submitted however that it did not seek the variation of an award or agreement. I accept this submission. The claim was as submitted by the appellant, as I have described above.
125 Only “circumstances” (g) and (j) of Principle 2 refer to “relevant agreements”. In “circumstance” (g) there is reference to the variation of a “relevant agreement” to include the minimum adult wage in accordance with Principle 9. Circumstance (j) refers to an application to vary an award to incorporate “industrial agreement provisions into the award by consent pursuant to s40A of the Act. The incorporated industrial agreement wage rate and allowance provisions will not be subject to arbitrated safety net adjustments and will be identified separately in the award at the time of variation”. Clearly neither “circumstance” (g) or (j) applied to the claim which was before the Arbitrator.
126 Principle 9 itself refers to a minimum adult wage clause being required to be inserted in any new award. Principle 9(8) makes reference to above award payments pursuant to enterprise agreements, but this was also not relevant to the claim which was before the Arbitrator.
127 Included as Principle 2(d) is “to adjust wages pursuant to work value changes in accordance with Principle 6”. It is noted however that Principle 6 and other Principles such as Principles 8, 9, 11 and 12 all refer to an award. The industrial matter in issue before the Arbitrator did not involve an award. Principle 6(a) refers to a “change in wage rates”. This is also not what the appellant sought. It was not a claim to change wage rates in an award or even the HSU Agreement, but a change to the classification level of a particular position. As set out, s43(1) of the Act would only allow variation of the registered agreement by a subsequent agreement of the parties. In the second paragraph of Principle 6(a) there is reference to, “a party making a work value application will need to justify any change to wage relativities that might result not only within the relevant internal award classifications structure but also against external classifications to which that structure is related”. Again, the present claim was not a “work value application” and the claim did not involve an award. In the fourth paragraph in Principle 6(a) there is also reference to “wage relativities between awards”. Principle 6(c) refers to the “time from which work value changes in an award should be measured”. The point made about an award not being involved is again relevant.
128 The Arbitrator was correct to conclude that the claim before her did not fit within the Statement of Principles. In my opinion however s43 of the Act, and a review of the Statement of Principles themselves demonstrates that they were not intended to and did not apply to a claim such as that which was before the Arbitrator. The consequence of the claim not fitting within the Statement of Principles was not that the Arbitrator could not deal with the claim or provide a remedy. The claim was an “industrial matter”, referred to the Arbitrator by the appellant under s80F of the Act and was required to be dealt with under s80E(1) and (2), with consideration by the Arbitrator of the possible exercise of the powers set out in s80E of the Act.
129 I accept therefore the submission of the appellant that the Arbitrator erred.
130 The respondent submitted the Arbitrator correctly followed a long line of authority that before reclassifying the position a change in work value must be demonstrated. It was submitted that although the Statement of Principles did not apply to applications for the reclassification of positions, Arbitrators/the Commission had long held that such applications could only succeed upon the demonstration of increased work value. For that reason reference to the Statement of Principles was relevant and convenient. The respondent cited CSA v Commissioner, Public Service Commission (1994) 74 WAIG 801, Grellier v Secondary Education Authority No. PSA 54 of 1996, Grumont v Director General, Education Department (2001) WAIRC 01817 and Wall v Department of Fisheries (2004) 84 WAIG 3895.
131 With respect to these authorities I accept the appellant’s submission that the Arbitrator did not refer to the Statement of Principles as a matter of convenience but found “they were a legal bar to her deciding the matter”. (T16). The appellant also submitted that the cases were distinguishable because they did not apply to an application such as the present which asserted the level to which the position was assigned in 2005 was an incorrect level. I also accept this submission. I also note that none of the authorities cited were decisions of the Full Bench.
132 In summary the Arbitrator erred because:-
(a) The Principles do not cut down the jurisdiction of the Arbitrator to deal with an “industrial matter”, under s80E(1) and/or (2) of the Act.
(b) The Principles did not in any event apply to the application which did not seek any variation of an award, or for that matter, the HSU Agreement. With respect to any variation of the agreement the Principles could not apply because of the contents of s43(1) of the Act.
(c) The consequence of (b) was not that the Arbitrator lacked jurisdiction or could not provide a remedy, but that the Arbitrator’s jurisdiction was not affected by the Principles and the claim therefore could and should be substantially determined without reference to them.
(d) In particular the Arbitrator was required to hear and substantially determine the claim even if it was not based on or could fit within the requirements of Principle 6 and a work value change claim.
133 For these reasons in my opinion, ground 1 of the appeal has been established.

Ground 2
134 This ground asserts error of law by the Arbitrator in determining that the matter referred sought to amend “the award”. There is a difficulty in this ground in that as submitted by the appellant there was no award which applied to the occupier of the relevant position and the classification of that position. The HSU Agreement applied. Insofar as the ground encapsulates that the Arbitrator erred in applying the Statement of Principles as if there was an application to amend an award, it does not take the matter any further than ground 1.

Ground 3
135 In my opinion, ground 3 also does not take the appeal any further than ground 1. The conclusion referred to in ground 3 is the consequence of the way in which the Arbitrator determined the matter. This as referred to with respect to ground 1 was in error.

Ground 4
136 This ground refers to the Arbitrator finding that “jurisdiction existed to deal with the current classification” of the relevant position. As set out earlier there is some difficulty in ascertaining whether the Arbitrator found that she had jurisdiction or not. The ground also refers to the Arbitrator not “referring the matter for determination”. There is some difficulty with the drafting of this ground because the matter was referred for determination, but the matter was not determined in substance because of the Arbitrator’s view as to jurisdiction or whether a remedy could be provided.
137 Overall, ground 4 does not add to ground 1 and need not be considered any further.

Was the Error a Jurisdictional Error?
138 In my opinion the error of the Arbitrator, as set out above with respect to ground 1, was a jurisdictional error. This was because the result of the error was that the Arbitrator did not undertake the duty reposed in her by sub-sections 80E(1) and (2) of the Act, to deal with the “industrial matter” before her.
139 This occurred because of what the authorities describe as a “misconception of the nature and limits” of her jurisdiction. This was that the Arbitrator wrongly decided that she could only hear the claim, or provide a remedy, if it fitted within the Statement of Principles. Put slightly differently, in the terms of Craig, the Arbitrator misconceived the nature of her function or powers in the circumstances of the case. The consequence of this error was, as indicated above, jurisdictional. This is because the effect of it was a failure to do what the Act required – to deal with the “industrial matter”, and consider the application of the powers in s80E(5) of the Act.
140 Accordingly, based on my earlier reasoning the purported decision of the Arbitrator was not a “decision” for the purposes of s80G(2) of the Act. The appellant may therefore appeal under s49 of the Act and the appeal should be allowed.
141 I should also mention that although s49(2) refers to an appeal against a “decision of the Commission” there are many authorities that establish a decision infected with a jurisdictional error is nevertheless a “decision” for the purposes of exercising rights of appeal or review (See for example, Aronson at pages 627-629).

Orders
142 In my opinion a minute of proposed orders should issue in the following terms:-
1. The appellant have leave to amend the grounds of appeal by the deletion of both paragraphs numbered 5.
2. The appeal is allowed.
3. The decision of the Arbitrator is quashed.
4. The appellant’s claim is remitted to an Arbitrator for hearing and determination according to law.

SMITH SC:
143 I have read the reasons of decision of His Honour, the Acting President and I agree with those reasons and have nothing to add.

HARRISON C:
144 I have had the benefit of reading the reasons for decision of His Honour, the Acting President. I agree with those reasons and have nothing to add.
1