2008 WAIRC 00079

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2008 WAIRC 00079

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER S WOOD

HEARD
:
WEDNESDAY, 28 NOVEMBER 2007
FINAL WRITTEN SUBMISSIONS FILED 24 DECEMBER 2007

DELIVERED : FRIDAY, 8 FEBRUARY 2008

FILE NO. : FBA 14 OF 2007, FBA 15 OF 2007, FBA 16 OF 2007, FBA 17 OF
2007

BETWEEN
:
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF AGRICULTURE AND FOOD;
Appellant

AND

TREVOR JAMES WARD;
RESPONDENT

AND



:
CHIEF EXECUTIVE OFFICER, DEPARTMENT OF AGRICULTURE AND FOOD;
Appellant

AND

JOHN MARTIN WALL
Respondent

ON APPEAL FROM:

JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND PUBLIC SERVICE ARBITRATOR
CORAM : SENIOR COMMISSIONER J H SMITH
CITATION : (2007) 87 WAIG 2853; (2007) 87 WAIG 2872
FILE NO : P 1 AND P 2 OF 2007; B 44 AND B 45 OF 2007

CatchWords:
Industrial Law (WA) - Appeal against decision of Commissioner sitting as Commission and as Public Service Arbitrator –s29(1)(b)(ii) applications to the Commission – s80E and 80F(2) applications to the Public Service Arbitrator – public sector employees not paid for hours worked in excess of 37.5 ordinary hours specified in the Public Service Award 1992 – effect of Labour Relations Reform Act 1992 (WA) on workplace agreements - interaction between workplace agreements and industrial instruments
Whether jurisdiction to decide s29(1)(b)(ii) applications – necessity to decide if Commissioner had jurisdiction – whether respondents had power to refer claims to Arbitrator under s80E(2) of the Industrial Relations Act 1979 (WA) – whether claims in respect of salary “allocated” to an office – Statutory construction – Transitional provisions for expired workplace agreements – construction of s4H of the Workplace Agreements Act 1993 – meaning of “bound by an award”
Effect of s114 of the Industrial Relations Act 1979 (WA) – enforcement of an award – preservation of accrued rights – jurisdiction under dispute resolution clause – whether dispute resolvable – Commission/Arbitrator did not have jurisdiction - decisions quashed
Legislation:
Industrial Relations Act 1979 (WA) - s6, 7, 22A, 23, 29(1), 30, 80E, 80F(2), 80G, 114

Interpretation Act 1984 (WA) – s18, 19, 37

Labour Relations Reform Act 2002 (WA) – s99, 100

Public Service Act 1978 (WA)

Public Sector Management Act 1994 (WA)

Workplace Agreements Act 1993 (WA) – s4H, 4I, 4J

Result:
Appeals allowed
REPRESENTATION:
Counsel:
APPELLANT : MR D MATTHEWS (OF COUNSEL), BY LEAVE
RESPONDENT : MR R HOOKER (OF COUNSEL), BY LEAVE
Solicitors:
APPELLANT : MR T SHARP
RESPONDENT : (N/A)


Case(s) referred to in reasons:

Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Bolgari v Steiner School and Kindergarten [2007] VSCA 58
Cockle v Isaksen (1957) 99 CLR 155
Coulton and Others v Holcombe and Others (1986) 162 CLR 1
Crown Scientific Pty Ltd v Clarke (2007) 87 WAIG 598
CSA v Commissioner, Public Service Commission (1993) 73 WAIG 301/302
Director General Department of Justice v Civil Service Association of Western Australia Incorporated (2006) 86 WAIG 231
Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Fingleton v The Queen (2005) 227 CLR 166
Employees Association (1906) 4 CLR 488
Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Health Services Union of Western Australia (Union of Workers) v Director General of Health (2007) 87 WAIG 737
Kenji Auto Parts Pty Ltd t/a SSS Auto Parts (WA) v Fisk (2007) 87 WAIG 328
Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135
The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Roman Catholic Bishop of Bunbury Chancery Office and Others (2007) 87 WAIG 1148
Old UGC, Inc v Industrial Relations Commission of New South Wales in Court Session (2006) 225 CLR 274
Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355
Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129
Re Gilles Contracting Pty Ltd (in Liq); Khatri v Price and Another (1999) 95 FCR 287; (1999) 166 ALR 380
Stacey v Civil Service Association of WA (Inc) (2007) 87 WAIG 1229
Wilson v Anderson and Others (2002) 213 CLR 401
X and Others v Australian Prudential Regulation Authority and Another (2007) 232 ALR 421


Case(s) also cited:

State Government Insurance Commission v Johnson (1997) 77 WAIG 2169
Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114
HotCopper Australia Ltd v Saab [2002] WASCA 190
Perth Fishing College v Watts (1989) 69 WAIG 2307
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Worker’s Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642
Stannard v McIntyre (2004) 140 FCR 244
CIC Insurance v Bankstown Football Club (1997) 187 CLR 384
Director of Public Works v Ho Po Sang [1961] AC 901
Hicks v Aboriginal Legal Service of WA (2001) 185 ALR 689
Esber v Commonwealth (1992) 174 CLR 430
Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1
Reasons for Decision

RITTER AP:

The Context of the Litigation
1 The detail of these appeals will be later described. They arise out of legislation enacted for the purpose of putting into effect the policies of successive state governments about the methods to establish terms and conditions of employment. More specifically, the Workplace Agreements Act 1993 (WA) (the WAA) permitted the registration of individual or collective workplace agreements, the terms of which generally took priority over any otherwise applicable state industrial award. Following a change of government the Labour Relations Reform Act 2002 (WA) (the LRRA) was enacted. One of the purposes of the LRRA was to repeal the WAA, phase out workplace agreements and dismantle the system of their registration. The LRRA amended the WAA to provide transitional arrangements for existing workplace agreements. The present litigation involves the construction of this legislation in the context of the employment of two public sector employees.

The Dispute
2 Both respondents have for some time been employed by the appellant. Until 31 December 2002 their employment was governed by workplace agreements.. The respondents’ employment has also been governed by the Public Service Award 1992 (the PSA 1992) and the Public Sector General Agreement 2006 (the PSGA). (Together the PSA 1992 and the PSGA will be described as “the applicable industrial instruments”).The workplace agreements provided for the working and payment of and for an average of 40 hours per week at an agreed “ordinary rate”. Pursuant to the terms of the amended WAA, detailed later, the workplace agreements expired on 31 December 2002. The respondents have since then continued to work an average of 40 hours per week. The applicable industrial instruments however provide for the working and payment of and for an average of 37½ hours per week at an “ordinary rate”. Since 31 December 2002 the respondents have not been paid for all of the average 40 hours per week they have worked.
3 This is because the appellant has asserted that payment for an average of 37½ hours per week at an ordinary rate is all that is contemplated by and can be paid under the applicable industrial instruments. Additionally, to the extent that the workplace agreements are in conflict with the applicable industrial instruments, the latter prevail, because of the terms of the transitional provisions of the WAA. Overtime is provided for in the applicable industrial instruments but the respondents have not to date been paid overtime for the 2½ hours worked in excess of their ordinary hours. .
4 The respondents’ position is that since 31 December 2002 they have been and continue to be entitled to be paid for the average 40 hours per week worked, in accordance with their workplace agreements, at the present ordinary rate of pay under the applicable industrial instruments. They contend this outcome is mandated by Part 1A of the WAA, enacted as part of the LRRA. As I have said the appellant disputes this.
5 Although this is a fairly narrow dispute, the present litigation has widened into a thorny path of jurisdictional and legal complexities. These will be later described and analysed. The dispute is significant as the Full Bench was informed that approximately 80 other public sector employees are in a similar position.

State Government Public Sector Employment
6 I described the evolution of the employment of public sector employees in Western Australia in Stacey v Civil Service Association of WA (Inc) (2007) 87 WAIG 1229 at paragraphs [113]-[127]. The parties advised in correspondence after the hearing of the appeals that they did not see any error in what was there said. Quoted below are some of these paragraphs which in my opinion set out a context relevant to the present dispute. In these paragraphs:-
(a) “The PSA” denotes the Public Service Act 1978 (WA).
(b) “The PSA 1992” denotes the Public Service Award 1992; an award of the Commission ((1993) 73 WAIG 301.
(c) “The PSMA” denotes the Public Sector Management Act 1994 (WA).
7 I will use the same abbreviations in these reasons. Stacey also refers to the Workplace Agreements Act 1993 (WA) which I have and will cite as the “WAA”, the Labour Relations Reform Act 2002 (WA), which I have and will cite as the “LRRA” and the Industrial Relations Act 1979 (WA) which I will refer to as “the Act”. Relevant paragraphs of Stacey are:-
“113 The PSA commenced on 16 May 1979. Section 20 provided that the public service would be constituted by departments and sub departments and some “posts” in organisations, as defined. Departments and sub departments were defined in s5 of the PSA to be branches of the public service established under ss21 and 22 respectively. Organisations, generally, were defined in s5 to be state trading concerns, state instrumentalities, state agencies or public statutory bodies established or continued by or under a written law and specified in column 2 of the schedule to the PSA.
114 An “officer” was defined in s5 of the PSA to mean someone “in relation” to a department, “employed in the department under and subject to this Act”. With respect to an organisation it meant a person who was employed in the organisation and was a member of the senior executive service. Pursuant to s14(3) of the PSA the Public Service Commissioner had the power to appoint, transfer or promote officers and to determine remuneration.
115 The PSA 1992 was made by order of the Commission after a consent application on 2 February 1993 (CSA v Commissioner, Public Service Commission (1993) 73 WAIG 301/302). It superseded and replaced the Public Service Salaries Agreement 1985 and the Public Service General Conditions of Service and Allowances Award 1989. Pursuant to clauses 3, 4 and 5, the PSA 1992 applied throughout Western Australia to all government officers employed under the PSA and operated from the first pay period commencing on or after 1 December 1992. …
116 Despite the presence of the PSA 1992, there was at least the theoretical possibility that the conditions of employment of public service officers could be changed under a registered industrial agreement pursuant to s41 of the Act. This type of agreement could be made between the CSA, as an organisation, and the employer of public service officers (s41(1)). When registered by the Commission the industrial agreement would “prevail” over any inconsistency with an award unless the agreement expressly provided otherwise (s41(9)).
117 Since 1993 the employment of public sector employees in Western Australia has changed in accordance with the policies of the day of the differently constituted state governments. In 1993 the then Coalition government effected a paradigm shift in the employment of public sector and other employees by the enactment of the Workplace Agreements Act 1993 (WA). As noted in the chronology the Workplace Agreements Act commenced on 1 December 1993. The Workplace Agreements Act permitted employers and employees to enter into a workplace agreement which took precedence over any award whilst the workplace agreement remained in force. (Sections 5, 6). The Workplace Agreements Act by s4 took priority over the Act. Pursuant to s19(2) of the Workplace Agreements Act an individual workplace agreements generally had effect from when it was signed by the parties to the agreement or from some later day as provided for in the agreement.
118 Part 3 of the Workplace Agreements Act set out its application to the public sector. Section 43(1) enacted that a person who was appointed under a written law to a position as an officer or employee; employed by the Crown; or the holder of an office or position in or under a public authority, may be a party to a workplace agreement as an employee. Section 43(2) said that subsection (1) applied whether or not in law a person had a contract of employment. Section 44(1) provided that in respect of the employees to whom s43(1) applied, the employer for the purpose of the Workplace Agreements Act was to be a person prescribed by the regulations in respect of that employee or class of employee. Section 45(1) provided that any matter that was excluded from the operation of the part by the PSA (including regulations under the PSA) could not be varied or affected by agreement between the parties to a workplace agreement. Schedule 3 to the Workplace Agreements Act set out consequential amendments in accordance with s103 of that Act. By clause 6 of schedule 3, the PSA was amended to insert s53A which excluded from the operation of part 3 of the Workplace Agreements Act “any matter concerning the management or structure of the Public Service that is prescribed for the purposes of this section”.
119 One effect of the enactment of the Workplace Agreements Act, with respect to public service officers, was that it permitted such employees and their notional employer to enter into individual contracts which could be at variance from the PSA 1992.
120 The Workplace Agreements Act also allowed for collective workplace agreements. These agreements had to be registered to be effective after lodgement with the Commissioner of Workplace Agreements. (ss26, 31, 32). The Commissioner kept a register of workplace agreements. (s28). Pursuant to s39 of the Workplace Agreements Act an agreement lodged with or registered by the Commissioner was generally not open for inspection. This did not apply however to a workplace agreement referred to in s43(1) that was lodged with or registered by the Commissioner. These workplace agreements were open for inspection by any person and could be disclosed to any person who in the opinion of the Commissioner made a request for information that could reasonably be complied with by the Commissioner. (s40). Although s43(3) of the Workplace Agreements Act was amended by the Industrial Legislation Amendment Act 1995, this did not change the essential nature of the Workplace Agreements Act with respect to public service officers.
121 The PSMA commenced to operate on 20 August 1994 and 1 October 1994 respectively. (See s2 of the PSMA and the Government Gazette, 19 August 1994, page 4155 and 30 September 1994, page 4948). The PSMA repealed the PSA. The PSMA continued the existence of an office created under s14(3) of the PSA (see clause 4 of Schedule 5 of the PSMA). Section 112(1) of the PSMA provided that a reference in a “written law or book, document or writing to the Public Service Act 1978 or the Public Service Act 1904 is, unless the contrary intention appears or it is otherwise provided under the Acts Amendment (Public Sector Management) Act 1994, to be construed as if it had been amended to be a reference to this Act”. Both parties accepted this section applied to rule 12(l)(vi) of the CSA rules.
122 Under the PSMA a “public service officer” was someone employed in the “public service” (s3). The public service, under s34 of the PSMA was constituted by, amongst other entities, state government departments established under s35 of the PSMA. The PSMA provided for the administration of the “public sector”, which as defined in s3 included the “agencies” which in turn included “departments”. The PSMA contained general principles for the public sector about public administration, management and conduct (Part 2). The PSMA provided for a Commissioner for public sector standards to prescribe standards and codes of ethics. The PSMA also established a process for dealing with a “breach of discipline” by a public service officer (s80). Under s78 a public service officer who was a “government officer” could appeal to the Commission constituted by a Public Service Appeal Board against decisions made in the exercise of specified powers in the PSMA.
123 After the commencement of the PSMA, the PSA 1992 continued to apply to officers appointed under s14(3) of the PSA whose office continued to exist by clause 4(c) of Schedule 5 of the PSMA.
124 This was because the scope clause of the PSA 1992 was amended by order of the Commission made on 19 June 1997. (See (1997) 77 WAIG 1716). The order was said to operate from 1 October 1994. The amended scope clause referred to public service officers appointed under Part 3 of the PSMA and also to officers appointed under s14(3) of the PSA whose office continued to exist by virtue of clause 4(c) of Schedule 5 to the PSMA. …
127 Following the election of the Australian Labour Party as the State Government in 2001, steps were taken to repeal the Workplace Agreements Act, including in its application to public sector employees. This was effected by the Labour Relations Reform Act 2002 (WA); Act No. 20 of 2002. The thrust of that Act was, by way of repeals and amendments to the Workplace Agreements Act, to remove the capacity to enter into workplace agreements which had precedence over the awards of the Commission. The Labour Relations Reform Act also contained transitional provisions for the continued operation in some circumstances of workplace agreements which were still current. Section 4H of the Workplace Agreements Act provided that certain conditions of workplace agreements continued as part of a contract of employment between the employer and the employees. With respect to public sector officers, s44(2) was amended so that an employee and notional employer could pursuant to s24(1) of Workplace Agreements Act enter into an agreement in writing cancelling the workplace agreement.”

The Workplace Agreements Act as Amended by the Labour Relations Reform Act
8 In paragraph [127] of Stacey the purpose of the LRRA was referred to. The preamble to the LRRA said it was an Act to:-
“• amend the Workplace Agreements Act 1993 to provide for the phasing out and expiry of that Act;
• amend the Minimum Conditions of Employment Act 1993; and
• make consequential amendments to other written laws,
and for related purposes.”

9 Section 29 of the LRRA repealed the long title of the WAA and inserted instead this long title:-
“An Act to make provision after the commencement of section 31 of the Labour Relations Reform Act 2002 —
- for employers and employees to be no longer empowered to make the employment agreements that were authorised by this Act as in force before that commencement;
- for the times when existing agreements automatically terminate;
- for the effect and enforcement of existing agreements until their termination; and
- for the expiry of the Act at a time when all agreements have terminated
and for related purposes”

10 Division 1 of Part 3 of the LRRA included s31 which inserted Part 1A into the WAA. This part comprised ss4A to 4J, including therefore s4H which was mentioned in paragraph [127] of Stacey. It is appropriate to set these sections out in full:-
“4A. Expiry of Act
This Act expires at the end of one year commencing with the designated day.
4B. Further workplace agreements cannot be made
On and after the designated day a workplace agreement cannot be made for the purposes of this Act.
4C. Limit on duration of agreements registered on or after 22 March 2001
(1) This section applies to a workplace agreement that —
(a) was registered on or after 22 March 2001; and
(b) has effect immediately before the designated day.
(2) The agreement ceases to have effect —
(a) at the end of 6 months beginning with the designated day;
(b) on the day on which the parties have agreed that it is to cease to have effect, being a day provided for —
(i) by the agreement; or
(ii) by agreement between the parties under section 24(1);
or
(c) on a day on which section 14(1) or 43(4) becomes applicable to the agreement,
whichever happens first.
4D. Limit on duration of arrangements under repealed section 19(4)(b)
(1) This section applies to an arrangement under repealed section 19(4)(b) that has effect immediately before the designated day.
(2) The arrangement has effect according to its terms despite the repeal of section 19.
(3) The arrangement ceases to have effect —
(a) at the end of 6 months beginning with the designated day;
(b) on the day on which the parties agree in writing that the arrangement is to cease to have effect; or
(c) on the termination of the employee’s contract of employment,
whichever happens first.
4E. Termination of unregistered individual workplace agreements
(1) This section applies to an individual workplace agreement that was signed by the parties to it but that immediately before the designated day —
(a) had not been lodged for registration under repealed section 29 or made ineffective by repealed section 27; or
(b) if lodged for registration, had not been registered under repealed section 31.
(2) The agreement ceases to have effect on the designated day.
4F. Limit on duration of agreements not covered by section 4C or 4E
(1) This section applies to any workplace agreement that —
(2) The agreement ceases to have effect —
(a) has effect immediately before the designated day; and
(b) does not come within section 4C or 4E.
(a) at the end of one year beginning with the designated day;
(b) on the day on which the parties have agreed that it is to cease to have effect, being a day provided for —
(i) by the agreement; or
(ii) by agreement between the parties under section 24(1);
or
(c) on a day on which section 14(1) or 43(4) becomes applicable to the agreement,
whichever happens first.
4G. Termination of effect of agreement under repealed section 23(1)
(1) This section applies to an agreement under repealed section 23(1) that was signed by the parties to it but that immediately before the designated day —
(a) had not been lodged for registration under repealed section 29 or made ineffective by repealed section 27; or
(b) if lodged for registration, had not been registered under repealed section 31.
(2) On the designated day —
(a) the agreement ceases to have effect; and
(b) the employee ceases to be a party to the collective workplace agreement concerned.
(3) The reference in subsection (1) to an agreement under repealed section 23(1) includes an agreement under that section as applied by repealed section 40J.
4H. Employment conditions if workplace agreement or arrangement terminated or employee ceases to be a party
(1) This section applies where —
(a) a workplace agreement or an arrangement under repealed section 19(4)(b) ceases to have effect as provided by section 4C, 4D, 4E or 4F; or
(b) an employee ceases to be a party to a collective workplace agreement as provided by section 4G.
(2) The employment of an employee becomes subject to a contract of employment under this section.
(3) If —
(a) the workplace agreement that ceased to have effect was an individual workplace agreement; or
(b) the arrangement under repealed section 19(4)(b) that ceased to have effect followed on the expiry of an individual workplace agreement,
the contract of employment is one containing —
(c) the same provisions as those of the workplace agreement or arrangement that has ceased to have effect, other than the provisions implied by section 18; and
(d) if the employee had an existing contract of employment relating to the workplace agreement or arrangement, the provisions of that contract.
(4) If —
(a) the workplace agreement that ceased to have effect was a collective workplace agreement; or
(b) the arrangement under repealed section 19(4)(b) that ceased to have effect followed on the expiry of a collective workplace agreement,
the contract of employment is an individual contract —
(c) applying to the employee such of the provisions of the collective workplace agreement or arrangement that has ceased to have effect, other than the provisions implied by section 18, as were applicable to the employee; and
(d) containing, in addition, the provisions of the existing contract of employment that the employee had relating to the workplace agreement or arrangement.
(5) A contract of employment referred to in subsection (3) or (4) has effect, and may be varied or terminated, as if it were a contract entered into between the employer and the employee.
(6) Despite subsection (2) the employer and the employee are bound by —
(a) any award that extends to them; or
(b) any employeremployee agreement under Part VID of the Industrial Relations Act 1979 to which they are parties.
(7) Where subsection (6)(a) applies, the award ordinary rate of pay (howsoever described in the award) shall, for the purposes of the award only, be the rate of pay as prescribed in the award and not that prescribed in the contract of employment.
(8) Where subsection (6)(a) applies, nothing in this section or in any other enactment or law requires an employer to pay an employee more than the greater of —
(a) the employee’s entitlement arising under the contract of employment; or
(b) the employee’s entitlement arising under the relevant award,
whichever is the greater when assessed on a yearly basis.
(9) This section does not apply to —
(a) a workplace agreement that was registered under repealed section 40I; or
(b) an arrangement under repealed section 19(4)(b) that followed on the expiry of such a workplace agreement.
Note: For the position when an agreement or arrangement referred to in subsection (9) ceases to have effect, see section 152 of the Workplace Relations Act 1996 of the Commonwealth.
4I. Rights, obligations and proceedings not affected by termination of agreement or arrangement
The termination of a workplace agreement or an arrangement under repealed section 19(4)(b) by operation of this Division does not affect —
(a) any —
(i) right or entitlement that accrued; or
(ii) obligation or liability that was incurred,
under the agreement or arrangement before the termination; or
(b) any proceedings or remedy in respect of anything referred to in paragraph (a).
4J. This Part to prevail
This Part has effect despite any provision of this Act or a workplace agreement or any other agreement or arrangement.”

11 A definition of “designated day” was inserted into s3 of the WAA by s30 of the LRRA. It meant “the day on which section 31 of the Labour Relations Reform Act 2002 comes into operation.” This day was 15 September 2002. (See s2 of the LRRA and Government Gazette, No 160, 6 September 2002 page 4487).
12 Section 3 of the WAA also contained a definition of “award” which was:-
““award” means — 
(a) an award under the Industrial Relations Act 1979, and includes any industrial agreement or order under that Act; and
(b) an award under the Coal Industry Tribunal of Western Australia Act 1992, and includes any order under that Act and any agreement that comes within section 12(4) or 17(1) of that Act;”

13 Also relevant are ss98-100 of the LRRA, which were:-
“98. Definitions
(1) In this Division —
“the Act” means the Workplace Agreements Act 1993.
(2) Terms used in this Division have the same meanings as they had in the Act immediately before its expiry.
99. Interpretation Act 1984 not affected
The provisions of this Division do not affect the application of sections 37 and 39 of the Interpretation Act 1984, so far as they are consistent with those provisions, in relation to the expiry of the Act.
100. Effect of certain provisions preserved
The provisions of section 4H and Part 2 Division 4 of the Act are to be regarded as continuing to have effect after the expiry of the Act as if they had not expired.”

The Applications
14 The appeals involve orders made in 4 applications. Two were made by Mr Wall and two by Mr Ward. Both of them made an application to the Public Service Arbitrator (the Arbitrator). These were given numbers P 1 of 2007 and P 2 of 2007 respectively. The applications to the Arbitrator were purportedly made under s80E and s80F(2) of the Act. Both Mr Wall and Mr Ward also filed applications which purported to refer the same matter to the Commission in its general jurisdiction under s29(1)(b)(ii) of the Act. In their terms, these applications sought denied benefits that Mr Wall and Mr Ward alleged they were entitled to under their contracts of employment. The s29(1)(b)(ii) applications were given numbers B44 of 2007 (Mr Wall) and B45 of 2007 (Mr Ward). Attached to each of the four applications was a statement of claim. The statements of claim each referred to Mr Wall as the “First Applicant” and Mr Ward as the “Second Applicant”. The statements of claim contained the same factual and legal assertions, other than some details which will be later mentioned. The conclusion in each statement of claim was an assertion that Mr Wall and Mr Ward had not been paid specified amounts which they should have been pursuant to the contractual and legislative arrangements which governed their employment.

The Facts
15 As will be later set out, the applications at first instance were largely determined on a Statement of Agreed Facts filed on 8 June 2007. This was in the following terms (with the appellant referred to as “the Respondent”, Mr Wall “the First Applicant”, and Mr Ward “the Second Applicant”):-
“1. The First Applicant is, and has been at all material times, employed by the Respondent as a Level 2 Administration Officer.
2. The Second Applicant is, and has been at all material times, employed by the Respondent as a Level 3 Project Officer.
3. The Applicants are public service officers employed pursuant to s.11 of the Agriculture Act 1988 and under and subject to Part 3 of the Public Sector Management Act 1994.
4. The Applicants are government officers for the purposes of Part IIA, Division 2 of the Industrial Relations Act 1979.
5. The Applicants were until 31 December 2002, employed under workplace agreements pursuant to the Workplace Agreements Act 1993 (WA Act).
6. The Applicants are employed under the Public Service Award 1992.
7. The Applicants are employed under the Public Service General Agreement 2006.
8. The Applicants are employed under the Department of Agriculture Agency Specific Agreement 2007.
9. The workplace agreements which previously provided for the terms and conditions of the Applicants’ employment became, by virtue of s4H(2) of the WA Act, contracts of employment.
10. The contracts of employment referred to in paragraph 9 above include, for each Applicant, an Hours of Work Agreement the text of which has provided at all material times, that “the employee will work an average of 40 hours per week”.
11. At all material times each Applicant has, in fact, worked 40 hours per week.
12. In November 2002 the Government of Western Australia issued:
(a) a Circular entitled “Workplace Agreements – Transitional Provisions”; and
(b) an Information Package for Employees Affected by (changes to the relevant legislation)
The text of which is appended to this Statement of Agreed Facts (Annexures 1 and 2 respectively)
13. In November 2006 the Government of Western Australia issued Implementation Guidelines and Explanatory Notes to the Public Service General Agreement 2006, the text of which is appended to this Statement of Agreed Facts (Annexure 3).
14. This Commission is empowered to resolve the present dispute, difficulty or question arising in the course of the employment of the Applicants under each of:
(a) clause 64 of the Public Service Award 1992;
(b) clause 35 of the Public Service General Agreement 2006; and
(c) clause 8 of the Department of Agriculture Agency Specific Agreement 2005.
and the preconditions for this Commission to exercise its arbitral function pursuant to those respective clauses have, in each case, been satisfied.
15. The Public Service Arbitrator is empowered to inquire into and deal with the industrial matters relating to the Applicants which arise from these applications.
16. Annexure 4 (concerning the claim of the First Applicant) and Annexure 5 (concerning the claim of the Second Applicant), accurately reflect the quantum of the Applicant’s claims and thus the amounts due and owing to them if, on a proper construction of their contracts of employment, totality of instruments governing that employment, and relevant legislation, their present claims are properly grounded in law.”

16 It is presently unnecessary to make any additional reference to the 5 annexures.

The Public Service Arbitrator’s Jurisdiction
17 Sections 80E and 80F of the Act are:-
“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.
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).”

18 Section 80G is relevant to appeals FBA 14 and 16 and is:-
“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).”

The Statements of Claim Attached to the Applications to the Public Service Arbitrator
19 The statements of claim of Mr Wall and Mr Ward which were attached to applications P1 of 2007 and P2 of 2007 made factual assertions which were later reflected in the Statement of Agreed Facts.
20 The statements of claim also referred to the impact of the LRRA upon the WAA. One effect was said to be to cease the legal operation of workplace agreements and to provide for transitional arrangements. Very generally the statements of claim asserted:-
(a) Section 4H of the WAA preserved workplace agreements as statutory contracts.
(b) If an employee was also bound by an award, s4H(8) required a yearly assessment of entitlements to “determine which of the contract of employment or the relevant award is the operative source of remuneration”. (Emphasis as per Statements of Claim).
(c) This exercise was unaffected by s4H(7) which only operated to determine the rate of pay for the purposes of an applicable award.

21 It was also asserted that the intent of the Government of Western Australia was set out in paragraphs [13]-[16] of a “Policy Statement” and also paragraphs [5]-[8] and [12]-[14] of a circular entitled “Workplace Agreements – Transitional Provisions” published by the Department of Consumer and Employment Protection (DOCEP) in November 2002. The statements of claim pleaded that the intent was:-
“(a) to preserve the terms and conditions of those employees, such as the Applicants, moving from workplace agreements to so-called Statutory Contracts of Employment (SCOEs), such that none of those employees would be any worse off by reason of that change in the means of employment regulation;
(b) for hours of work not to change as a result of the ceasing of workplace agreements; and
(c) for employees henceforth employed under SCOEs and an award (and/or an industrial agreement) to have their salaries calculated by reference to an award or EBA rate as applied to hours worked under the contract, rather than merely through an annualised assessment.”

22 It was also asserted that this intent was reaffirmed in the “Implementation Guidelines and Explanatory Notes to the Public Service General Agreement 2006” published by DOCEP on 10 November 2006. Also relied upon was paragraph [64] of the Explanatory Memorandum accompanying the Labour Relations Reform Bill 2002 (WA). (This is later quoted). The then applicants also relied on ss18, 19 and 37(1)(c) and (d) of the Interpretation Act 1984, s41 of the WAA and s99 of the LRRA. It is unnecessary to presently refer to these sections in greater detail. Schedules A and B to the statements of claim summarised in tabular form the arrears said to be due and owing to the then applicants “… on a proper interpretation of the totality of the instruments and materials governing their contracts of employment”.
23 The statements of claim said the jurisdiction of the Commission was invoked on the following bases:-
“12 (a) resolution of a dispute, difficulty or question arising in the course of the employment of the Applicants under the three industrial instruments referred to at paragraph 3(d), (e) and (f) above, pursuant to clauses 64, 35 and 8 of those instruments respectively;
(b) applying to the Public Service Arbitrator to enquire into and deal with the industrial matters as summarised, being matters which are, among other things, claims in respect of the salary allocated to the offices occupied by the Applicants, thus being capable of referral by the Applicants themselves to the Arbitrator pursuant to s.80F(2) of the Industrial Relations Act 1979;
(c) claims pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 that the Applicants have not been allowed by the Respondent certain benefits, not being benefits which, properly understood as to their derivation, arise under an award or order, to which they are entitled under the contracts of employment (these claims being the subject of a separate form of commencement, filed with this application).”

24 The “industrial instruments” referred to in paragraph 12(a) were the PSA 1992, the PSGA and the Department of Agriculture Agency Specific Agreement 2005 respectively.
25 A prayer for relief sought a declaration “as to the correct and equitable interpretation” of the contracts of employment and orders for payment of the amounts due and owing in light of such an interpretation.

The Section 29 Applications
26 The statements of claim in the two s29(1)(b)(ii) applications contained substantially the same wording as in the applications to the Arbitrator. They also asserted that:-
“12. The Applicants invoke the jurisdiction of this Commission on the basis that they claim pursuant to s 29(1)(b)(ii) of the Industrial Relations Act 1979 that they have not been allowed by the Respondent certain benefits, not being benefits which, properly understood as to their derivation, arise under an award or order, to which they are entitled under the contracts of employment. (This claim is related to other claims brought to the Public Service Arbitrator, the subject of a separate form of commencement, filed with this application.)”.
The Commission’s General Jurisdiction
27 The heading of Division 2 of Part II of the Act is “General jurisdiction and powers of the Commission”. The division comprises ss22A to 36.
28 Significantly s22A provides:-
“22A. Interpretation
In this Division and Divisions 2A to 2G — 
“Commission” means the Commission constituted otherwise than as a constituent authority;
“industrial matter” does not include a matter in respect of which, subject to Division 3, a constituent authority has exclusive jurisdiction under this Act.”

29 Section 7 of the Act defines “constituent authority” so as to include the Arbitrator.
30 Section 23(1) of the Act provides:-
“(1) Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.”

31 Sections 23(2), (2a) and (3) of the Act provide some clarification, exceptions to and limitations in the exercise by the Commission of the general jurisdiction.
32 Section 29(1)(b) of the Act provides:-
“29. By whom matters may be referred
(1) An industrial matter may be referred to the Commission — 
…
(b) in the case of a claim by an employee — 
(i) that he has been harshly, oppressively or unfairly dismissed from his employment; or
(ii) that he has not been allowed by his employer a benefit, not being a benefit under an award or order, to which he is entitled under his contract of employment,
by the employee.”

33 “Industrial matter” is defined in s7 of the Act, in expansive terms. The structure of the definition is to first provide a general meaning. This is “any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein …”. This is followed by: “and without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to …”. A number of matters are then listed as (a)-(m). Matter (a) is “the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment.”

The Notice of Answer and Counter Proposal
34 The appellant (then respondent) filed a single notice of answer and counter proposal in response to the four applications (the answer).
35 In the answer the appellant said that the case of the respondents (then applicants) was that s4H of the WAA had the following effects:-
(a) The ordinary hours of work are an average of 40 hours per week.
(b) The respondents are entitled to be paid the ordinary rate of pay under the PSGA for those hours worked.

36 The appellant’s case was expressed to be that s4H of the WAA had these effects:-
(a) The ordinary hours of work of the respondents were, pursuant to the applicable industrial instruments, an average of 37½ hours per week.
(b) Any purported contractual provision to different effect, and in particular the clause in the workplace agreement that the respondents were to work an average of 40 hours per week as ordinary hours, could not form part of their contract of employment.
(c) The respondents could only be paid the ordinary rate of pay under the applicable industrial instruments for an average of 37½ hours per week with overtime payments being available for hours worked in excess of this if the preconditions for payment of overtime were otherwise met.

37 In paragraph [8] of the answer said: “… the material effect of s4H of the WAA is that the terms of a workplace agreement, upon the expiry of the workplace agreement, continued, subject to the parties being bound by any award that extends to them, with the one qualification being that a person’s annual salary may not decrease as a result of the workplace agreement expiring and the award applying”.
38 The appellant did not accept the respondents’ assertions about “extrinsic material”, which I have summarised at paragraphs [21] and [22] above.
39 The appellant also asserted that:-
(a) “Parliament’s intention in enacting Part 3 of the LRRA was to move employees from individual contracts of employment to collective agreements and awards”.
(b) Section 4H(6) of the WAA provided that when a workplace agreement expired the “employer and employee would be bound by any award that extends to them”.
(c) By ss4H(7) and 4H(8) “Parliament was careful to ensure that in comparing remuneration, the workplace agreement and the award were considered on their own terms” (quoting from page 8773 of the relevant “Hansard”) “and there would not be “mixing and matching” of workplace agreement provisions and award provisions”.
(d) The effect of clauses 11(3)(d) and 20(1) of the PSA 1992 and clause 13.2 of the PSGA was that “an employee may only work, as ordinary hours, 37½ hours per week or an average of 37½ hours per week and be paid at the ordinary rate for that number of hours”.
(e) As s4H(6) of the WAA has the effect that the parties are bound by the PSA 1992 and that “… provides for 37½ ordinary hours per week or an average of 37½ ordinary hours per week, and for payment at the ordinary rate for that number of hours, any purported contractual term providing for something different is expressly and impliedly prohibited” by statute and is “invalid and unenforceable”. The reference to “by statute” must be to s114 of the Act.
(f) If the respondents considered that, because they had worked an average of 40 hours per week in the past they are entitled to overtime payments, it would be considered by the appellant.

The Hearing and Statement of Agreed Facts
40 The applications proceeded to a hearing on 8 June 2007. The hearing was for the purpose of deciding all four applications. The hearings were presided over by the Senior Commissioner who was purportedly exercising both her general jurisdiction as a Commissioner under s23 of the Act, with respect to the s29(1)(b)(ii) applications, and that under s80E of the Act as an Arbitrator. As I have said the applications were heard on the basis of a Statement of Agreed Facts. Documents were also received as exhibits but there was no oral evidence. Both counsel made submissions about the way in which the applications should be decided.
41 The exhibits provided the following additional information about the employment of Mr Wall and Mr Ward.

Mr Wall’s Employment
42 These dates and events are significant:-
(i) 30 April 1998 - Mr Wall was appointed by letter to “Agriculture Western Australia”, “commencing” on 20 April 1998 and expiring on 30 June 1998. The appointment was made under s64(1)(b) of the PSMA. The letter said the provisions of the applicable industrial instruments applied to Mr Wall’s service as an officer of the public sector.
(ii) 1 July 1998 - At the expiry of the previous appointment, Mr Wall was engaged under a series of fixed term appointments as an officer level 1 in the support services branch in Merredin.
(iii) 5 January 2001 – This was the final date of engagement under the fixed term appointments.
(iv) 16 February 2000 - Before the expiry of the final fixed term appointment, Mr Wall was appointed pursuant to a letter to the position of administration officer, level 1 in the management services branch at Merredin of “Agriculture Western Australia”. This was under s64(1)(a) of the PSMA.
(v) 14 February 2001 - Mr Wall and a delegate of the Chief Executive Officer of Agriculture Western Australia signed a workplace agreement.
(vi) 14 February 2001 - Schedule C(1) to the workplace agreement signed by both parties.
(vii) 28 February 2001 – A letter from a delegate for the Commissioner of Workplace Agreements to Mr Wall advised that the workplace agreement was registered on 27 February 2001. The registration of the workplace agreement was pursuant to the then WAA.
(viii) 15 April 2002 - Mr Wall was appointed to the position of administrative officer, level 2 in the management services branch in Merredin of the Department of Agriculture. The appointment was also made pursuant to s64(1)(a) of the PSMA. The letter of appointment said the applicable industrial instruments and the Approved Procedures available at the Public Sector Management website and the policies and procedures of the department applied to Mr Wall’s service as an officer of the Public Sector.
(ix) 31 December 2002 - Mr Wall’s workplace agreement ceased because of the provisions of the LRRA and amended WAA.
(x) 22 July 2005 - Letter from the Executive Director of Business Services of the Department of Agriculture to Mr Wall about changes to the departmental structure, announced on 27 May 2005. The letter said that Mr Wall had been placed on a “like to like” basis in the position of administration officer, level 2, position number 99000191 as part of the new business structure.

43 The letter dated 16 February 2000 said the appointment was subject to three conditions set out in dot points. The first two were about the appointment being under s64(1)(a) of the PSMA and the provisions of the applicable industrial instruments applying to Mr Wall’s service as an officer. The third dot point set out Mr Wall’s commencement salary and said it would be adjusted from time to time “in accordance with salary movements for the Public Service Award 1992, and the agency’s Enterprise Agreement 1998”.
44 The workplace agreement dated 14 February 2001 contained six clauses and relevantly provided:-
(a) The provisions outlined in the document entitled “Terms and Conditions – Agriculture Western Australia Generic Individual Workplace Agreement 2” dated June 2000 were fully incorporated into the agreement. (Clause 2).
(b) Mr Wall’s existing substantive classification level would be transferred to the same level under the workplace agreement. (Clause 3).
(c) The agreement would have effect from the first pay period commencing on or after 1 January 2001, “otherwise from the first pay period commencing on or after the date of signing”. (Clause 4).
(d) The tenure of employment was not affected. (Clause 5).
(e) Mr Wall was entitled to payment of an “additional hours’ allowance” as prescribed in a schedule C to the workplace agreement.

45 Schedule C(1) to the workplace agreement provided that Mr Wall would work an average of 40 hours per a week between hours which spanned 5:00am to 7:00pm, Monday to Friday.
46 The letter dated 28 February 2001 said the “effect of registration is to confirm that your workplace agreement will apply in lieu of any State industrial award for the period of the agreement”. Minimum conditions of employment which Mr Wall was entitled to, irrespective of the agreement, were set out on the back of the letter.

Mr Ward’s Employment
47 These dates and events are significant.
(i) 28 January 1999 – Mr Ward was informed by letter of appointment under s64(1)(a) of the PSMA to a position with “Agriculture Western Australia” in the office of a project officer, level 3 in the corporate services branch in South Perth. The letter said the PSMA, WAA and the “Agriculture Western Australia Public Service and Government Officer Workplace Agreement 1998” applied to Mr Ward’s service. The terms and conditions of employment were said to be in accordance with an attached workplace agreement.
(ii) 1 February and 5 February 1999 - Schedule A to a workplace agreement signed by Mr Ward and a delegate of the Chief Executive of “Agriculture Western Australia” respectively.
(iii) 6 November 2000 - “Schedule C(1)” (to the workplace agreement) “Hours of Work” agreement was signed, which provided for an average of 40 hours work per week within a span of hours from 5:00am to 7:00pm, Monday to Friday.
(iv) 6 November 2000 and 9 November 2000 - Workplace agreement signed by Mr Ward and a delegate of the Chief Executive Officer of “Agriculture Western Australia” respectively. In this agreement the provisions contained in a “June 1999 Generic Individual Workplace Agreement”, were incorporated into the workplace agreement.
(v) 13 and 14 February 2001 - Workplace agreement executed which had annexed to it a schedule C(1) “Hours of Work” agreement. This workplace agreement also provided the “Terms and Conditions – Agriculture Western Australia Generic Individual Workplace Agreement 2 dated June 2000” were incorporated into and formed part of the agreement.
(vi) 13 February 2001 – The “Hours of Work” agreement was executed. It provided that Mr Ward and the “Manager” agreed there would be an average of 40 hours work per week spanning the hours 5:00am to 7:00pm, Monday to Friday.
(vii) 26 February 2003 – Letter confirmed Mr Ward was transferred to the position of project officer, level 3 in the finance branch of the financial management section at South Perth of the Department of Agriculture.
(viii) 22 July 2005 - Letter sent from the executive director business services to Mr Ward in substantially similar terms to the letter of the same date to Mr Wall. The “like to like” position of Mr Ward was described as number 98000140, project officer, level 3.

48 A schedule to the 1999 workplace agreement provided that:-
(a) “The provisions outlined in the document entitled “Terms and Conditions – Agriculture Western Australia Public Sector and Government Officers” dated June 1998” were incorporated into the agreement.
(b) The agreement was said to have effect from the “first pay period commencing on or after 25 June 1998, otherwise from the first pay period commencing on or after date of signing, or the commencement date of employment for new employees”.

49 Plainly, despite the reference to this date, the workplace agreement did not take effect until Mr Ward’s appointment in 1999.
50 The letter to Mr Ward dated 26 February 2003 said the transfer was made pursuant to s65(1) of the PSMA and was effective from 1 July 2002. The letter said the provisions of the applicable industrial instruments together with the approved procedures and policies of the department referred to in the corresponding letter to Mr Wall, dated 2 April 2002 and referred to above, were conditions of the appointment.

The Reasons for Decision
51 At the end of the hearing the Senior Commissioner reserved her decision. Reasons for decision were published on 24 August 2007. The reasons firstly set out the background and quoted the statements of claim and answer. The reasons then referred to the way in which the hearing had taken place and quoted the Statement of Agreed Facts. The Senior Commissioner then quoted s4H of the WAA.
52 The submissions of the parties were described at some length. The Senior Commissioner then commenced a section of the reasons headed “Conclusion”. The first subheading was: “Is s 4H of the Workplace Agreements Act ambiguous?”. Paragraph [61] of the reasons said:-
“61 The tension between the effect of the terms of the statutory contract of employment and an award, including an industrial agreement created by s 4H(2), (6), (7) and (8) of the WA Act is unusual. I say that firstly because s 4H contemplates to some degree the melding of two or more bundles of statutory rights and obligations where at least one of which (the statutory contract of employment) was originally made (prior to the enactment of s 4H) as a document that was intended to cover matters without regard to any other competing terms and conditions in an award or industrial agreement. Secondly, the interrelationships created between a statutory contract of employment, the award and industrial agreements in s 4H(2), (6), (7) and (8) appear not to be clear on a plain reading of these subsections. If the Respondent's argument is correct then these provisions should be interpreted to render any provision in a statutory contract of employment inoperative where there is a conflict with the award or an industrial instrument. However, the provisions of s 4H do not expressly raise that consequence. The most critical words in the relevant provisions of s 4H are the opening words of subsection (6) which provide, "Despite subsection (2) the employer and the employee are bound by – (a) any award that extends to them". The question that arises is whether by the use of the word "despite", s 4H(6) means that the provisions of the award prevails or overrides the provisions of the statutory contract of employment, or (subject to s 4H(7) in respect of rate of pay) whether the provisions of the documents must be read together. The Macquarie Dictionary defines "despite" to mean, among other meanings, "in spite of; notwithstanding" and it defines "notwithstanding" as "without being withstood or prevented by; in spite of the fact that; although". Regard to these definitions does not indicate with any clarity whether the award is to prevail. However, the use of the word "despite" in s 4H(6) could be said to indicate that some conflict may arise between the statutory contract of employment and the award as the word "despite" does not convincingly raise an intention to override. It conveys uncertainty, is vague and thus raises an ambiguity in the meaning of and the effect of s 4H, in particular subsection (6).”

53 The Senior Commissioner next considered submissions about “Extrinsic Materials”. The (then) respondent’s submission was accepted; that the Commission should not have regard to the Implementation Guidelines in Circular to Departments and Authorities No 16 of 2002 formulated by officers of DOCEP, as that document was simply an interpretation of the legislation by one body. Additionally, the Senior Commissioner said Circular 16 of 2002 was a policy not published until after the LRRA was passed by Parliament and therefore not of assistance. The Senior Commissioner then referred to and quoted from paragraphs [61]-[65] of the Explanatory Memorandum to the Labour Relations Reform Bill 2002 (WA) which said:-
“61. Upon the expiry of a workplace agreement, or its prior cancellation by the parties, new arrangements will come into effect for both the employer and the employee which will act as a safety net for those employers and employees who have not already entered into alternative employment arrangements.
62. The provisions will ensure that no employee, other than by agreement, will be worse off following the expiry of their workplace agreement. Every employee's contract of employment, which was either part of their workplace agreement or operated alongside it will remain in existence and operation. Employers will not be permitted to reduce an employee's wages below that being paid under the workplace agreement.
63. Where a relevant award exists, an employee's employment will also be subject to that award. An employer will be required to comply with all of the terms and conditions contained in the provisions of the relevant award, including penalty rates, allowances and rates of pay. Employers will only apply the ordinary wage as expressed in the award to the provisions of the award.
64. It is expected that employees will continue to work the same hours of work after the expiry of their agreement and will receive the higher of either their wages under:
a) the contract of employment; or
b) as required under the relevant award.
65. However, an employee will not be entitled to recover payment under their contract of employment and the penalties and allowances payable under the award. Employers in these circumstances are to be protected from the principle of "set-off" as it is currently applied by the Industrial Magistrate's Court (see Poletti v Ecob 91 ALR 381).”

54 The Senior Commissioner then referred to the second reading speech of the Minister for Consumer and Employment Protection in the Legislative Assembly on 19 February 2002 at page 7513 of Hansard. The Minister is there recorded as saying:-
“Every employee will retain a contract of employment comprising their workplace agreement and common law contract of employment. An employee's employment will also be subject to the relevant award when one exists. An employer will be required to comply with all the terms and conditions contained in the provisions of the relevant award, including penalty rates, allowances and rates of pay.”

55 The Senior Commissioner also quoted at length from the debate of the Bill in the Legislative Assembly on 21 March 2002, as recorded in Hansard. There were quotations from exchanges between the Minister and Shadow Minister. At paragraph [72] the Senior Commissioner concluded the debate did not provide assistance. She did however identify four issues arising from the debate which can be summarised as:-
(a) Parliament was aware there could be conflict between an award and a statutory contract and intended the operation of the statutory contracts to be transitory.
(b) The debate demonstrated a lack of clarity about the effect of a conflict between a term of a statutory contract and an award.
(c) The debate did not directly deal with the issue before the Commission.
(d) The explanatory memorandum before Parliament said it was expected the hours of work of employees would not change.

56 The Senior Commissioner then considered the purpose of the “Workplace Agreements Amendments Repeal and Transition (sic) Provisions”. The Senior Commissioner said the modern approach to statutory interpretation required a court to look at the purpose or object of the Act under consideration. The Senior Commissioner quoted from the reasons of Kirby J in X and Others v Australian Prudential Regulation Authority and Another (2007) 232 ALR 421 at paragraph [116]. The Senior Commissioner also referred to Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at page 99 and Bropho v State of Western Australia (1990) 171 CLR 1 at page 20 in support of the proposition that “to ascertain the mischief the Act was designed to remedy, the Court may consider extrinsic material”. The Senior Commissioner said the mischief proposed by the amendments to the WAA by the Labour Relations Reform Bill was disclosed in the second reading speech to which reference has already been made. The Senior Commissioner quoted four paragraphs from page 7512 of Hansard. As the conclusions reached by the Senior Commissioner were said to be based upon these paragraphs it is appropriate to set them out in full:-
“In the time workplace agreements have operated, they have significantly and fundamentally damaged the working condition of thousands of Western Australian workers. Individual employees, without the ability to bargain collectively, have seen their wages and conditions driven down below the acceptable community standards in the award system to an artificial low, which was created by the Court Government. These agreements caused enormous difficulties in industries in which the employees were already among the lowest paid, including the security and cleaning industries.
There is a paucity of precise data on the outcomes of the workplace agreements system. However, from the two surveys published by the Commissioner of Workplace Agreements during the term of the previous Government, even from the limited material made available in them, an aggregate picture of wage and conditions erosion clearly emerges.
The Court Government promoted its workplace agreement system as providing flexibility and choice, but effectively it denied many employees any choice. This Government is committed to providing employees with a genuine choice in the type of employment arrangements under which they work. This Government was elected on the principle of implementing a fair, efficient and productive industrial relations policy. It was also elected on a policy that promotes fairness for all employees, not only those with skills that are in short supply. Part of this policy of fairness and justice includes the abolition of the Workplace Agreements Act. Part 3 of this Bill achieves that pre-election commitment. Workplace agreements that were registered prior to 22 March 2001 will remain in operation for up to 12 months after the commencement of this part. This period will give ample opportunity for employers to review their current employment arrangements and put in place new agreements. Workplace agreements that took effect after 21 March 2001 will remain in operation for only six months after the commencement of this part.
In one of its more Machiavellian provisions, section 19(4) of the Workplace Agreements Act allowed a workplace agreement to continue in effect beyond its nominal expiry date. Agreements that are continuing in operation by effect of this section will remain in operation for only six months after the commencement of this part. Although the workplace agreements remain, the agreements will need to comply with the enhanced provisions contained in the Minimum Conditions of Employment Act. Any agreement that has been lodged for registration with the office of the Commissioner of Workplace Agreements but not formally registered, will not come into effect. On expiry of a workplace agreement, or its prior cancellation by the parties, new arrangements will come into effect for both the employer and the employee. The provisions will ensure that no employee, other than by agreement, will be worse off following the expiry of his or her workplace agreement. Every employee will retain a contract of employment comprising their workplace agreement and common law contract of employment. An employee's employment will also be subject to the relevant award when one exists. An employer will be required to comply with all the terms and conditions contained in the provisions of the relevant award, including penalty rates, allowances and rates of pay.”

57 The Senior Commissioner relevantly concluded at paragraphs [78]-[82] of her reasons as follows:-
“78 The mischief that emerges from the amendments to the WA Act in 2002 is that they were designed to produce interim arrangements and to encourage employers and employees to choose to enter into different industrial arrangements. The amendments were also put forward on the basis that no employee would be disadvantaged following the expiry of their workplace agreement.
79 In my opinion the interpretation put forward by the Respondent does not promote the purpose of the amendments made to the WA Act in 2002 by the LRR Act. When regard is had to the purpose and the express words of ss 4H, 4I and 4J of the WA Act, I am of the opinion, (except that in relation to rates of pay) the rights and obligations in a workplace agreement are not rendered inoperative by the provisions of the award. The operation of s 4H(6)(a) and (7) has the effect that except where s 4H(8) applies, the rate of pay for each condition of employment created by the workplace agreement is the rate of pay prescribed in the award.
80 When this construction is applied to the facts of this matter the following consequences flow. Firstly, pursuant to the terms of statutory contracts of employment the Applicants are required to work an average of 40 hours of work a week. Pursuant to the statutory contract of employment all of these hours are ordinary hours of work. Expressly pursuant to s 4H(7) they are required to be paid the award rate of pay when this term of the statutory contract of employment (which requires the Applicants to work an average of 40 hours a week) is read with s 4H(7). Consequently the rate of pay for each of those hours is the rate of pay prescribed under the Award for ordinary hours of work as it is a term of the statutory contract of employment that ordinary hours of work are an average of 40 hours a week. None of these hours of work are overtime. Consequently, no entitlement to claim overtime under the Award arises.
81 It is irrelevant that it is a core condition of the General Agreement than an average of no more than 37.5 hours of work is to be worked as ordinary hours, as the only provisions of the Award, the General Agreement and the Agency Specific Agreement that renders inoperative any provisions in the statutory contracts of employment are provisions that are rates of pay.
82 The operation of s 114 of the IR Act does not apply. Section 114 of the IR Act applies to parties entering into a contract of common law. Statutory contracts of employment are not common law contracts. They are contracts which were entered into and given effect only by statutory force firstly as registered workplace agreements and then by s 4H.”

58 The Senior Commissioner said that if she was wrong in concluding that s114 of the Act did not apply to the statutory contracts of employment preserved by s4H of the WAA, it was “strongly arguable that the effect of ss4H, 4I and 4J is that these sections impliedly repeal s 114 insofar as s 114 applies to the terms of a contract of employment preserved by s 4H.” The Senior Commissioner then addressed this issue. It is presently unnecessary to summarise this. More important for present purposes however is that at paragraph [87] the Senior Commissioner said:-
“87 If the Respondent's construction of s 4H is correct then s 4H(7) would have no work to do as it would follow from s 4H(6) that the rates of pay in the award would render inoperative the rates of pay in the statutory contract of employment by operation of s 4H(6)(a) and s 114 of the IR Act. In addition, s 4H(8) would only apply to an employee's entitlements under the statutory contract of employment which were not inconsistent with any provision of an award. If for example an employee was entitled to eight weeks' paid annual leave under the statutory contract of employment and the award provided for four weeks' paid annual leave, if the Respondent's argument is correct the employee would only be entitled to four weeks' paid annual leave as s 4H(8) would not apply. However, if the construction set out above in paragraph [79] is applied, the employee would retain a right to be paid eight weeks' annual leave but the rate of pay for that annual leave would be determined by the award rate of pay pursuant to s 4H(7). Further, s 4H does not characterise a statutory contract of employment as having the same effect as common law contracts of employment but simply describes them as an "individual contract" (s 4H(4)).”

59 The Senior Commissioner next said she did not accept an argument by the (now) respondents that they had an accrued right to be paid for the 40 hours per week they contracted to perform, at the applicable award rate.
60 The Senior Commissioner then considered remedies and quoted s80E(1), (2) and (5) of the Act. In paragraphs [95]-[100] the Senior Commissioner said:-
“95 The Applicants have put the issues for determination by the Commission in the form of two types of applications. One is the applications brought by each Applicant under s 80E(2)(a) pursuant to s 80F(2) and the other is the applications brought by each Applicant under s 29(1)(b)(ii). Whether the Commission has the power to determine the s 29(1)(b)(ii) claims is not clear and has not been the subject of argument by counsel. Consequently, I will make no findings about this issue.
96 I note, however, that whilst it is open under ss 29(1)(b)(ii) and  34(1) of the IR Act to make a declaration that the Applicants are each owed contractual benefits, it is not possible to do so under s 80E(5). Section 29(1)(b)(ii) is an exercise of judicial power by the Commission as it determines existing rights and liabilities. (See Kennedy J at [2] in Ahern v The Australian Federation of Totally and Permanently Incapacitated Ex-Service Men and Women (Western Australian Branch) Inc (2000) 80 WAIG 1729). It is observed, however, that the power to make a declaration as to a right under s 29(1)(b)(ii) is confined to the contractual benefit which is an "industrial matter" within the meaning of s 7 of the IR Act.
97 Section 80E of the IR Act is a source of arbitral power. Pursuant to s 80E(5) a Public Service Arbitrator may only review, nullify, modify or vary a decision by an employer. In Director-General Department of Justice v Civil Service Association of Western Australia Inc, Wheeler and Le Miere JJ at [21] held that jurisdiction of the arbitrator under s 80E did not contain a power to make declarations. At [33] their Honours found that the power to "review" in s 80E(5) is not an independent power to review the decision of the employer but only a power to review (and, if necessary, to differ from) the decision where it is necessary to do so as part of the process of dealing with an industrial matter.
98 In light of these observations I wish to consider whether to make the following orders in respect of applications made under s 80E (P1 of 2007 and P2 of 2007). Firstly, I wish to consider whether I should make an order that the Respondent is to revoke his decision in 2006 not to pay the Applicants for 40 hours a week at the ordinary rate of pay specified in the Award and the General Agreement that the Respondent is to pay:
(a) Mr Wall - $3,699.30 being the amount owed to him as at 31 May 2007 and to pay him for 40 hours a week for each 40 hour week worked since 31 May 2007 at the ordinary rate of pay specified in the Award or the General Agreement (whichever is the greater) until Mr Wall and the Respondent vary or terminate the statutory contract of employment in the manner provided for in s 4H(6) of the Act.
(b) Mr Ward - $4,164.00 being the amount owed to him as at 31 May 2007 and to pay him for 40 hours a week for each 40 hour week worked since 31 May 2007 at the ordinary rate of pay specified in the Award or the General Agreement (whichever is the greater) until Mr Wall and the Respondent vary or terminate the statutory contract of employment in the manner provided for in s 4H(6) of the Act.
99 In relation to the contractual benefits claims, I wish to consider whether to make the following orders. In relation to Mr Wall, I propose making a declaration that the Respondent owes Mr Wall contractual benefits and order the Respondent to pay Mr Wall $3,699.30 being the amount owed to him as at 31 May 2007 and to pay him for 40 hours a week for each 40 hour week worked since 31 May 2007 at the ordinary rate of pay specified in the Award or the General Agreement (whichever is the greater) until Mr Wall and the Respondent vary or terminate the statutory contract of employment in the manner provided for in s 4H(6) of the Act .
100 In relation to Mr Ward, I propose to make similar orders except in relation to the amount outstanding as at 31 May 2007.”

61 The Senior Commissioner concluded that for these reasons she would hear further from the parties prior to making any orders.

The Second Hearing
62 Another hearing was conducted on 6 September 2007 where both counsel made submissions about the orders which should be made. At T37-39 there was an exchange between the Senior Commissioner and the then applicants’ counsel, which arose out of paragraph [95] of the reasons for decision. The Senior Commissioner said to counsel that “one of the things that troubles me” was the reference to the “exclusive jurisdiction” of the Arbitrator in s80E of the Act which “might raise some difficulty in dealing with the contractual benefits claims…”. (T37). The Senior Commissioner also said she had some difficulty as she had not heard the s29(1)(b)(ii) claim in her capacity as an Arbitrator. Counsel submitted the dispute was an industrial matter with “multiple characterisations” and suggested that it could be dealt with by the Commission under either or both of s80E and/or s29(b)(ii) of the Act. Alternatively counsel submitted, “if the dominant character is that this a public service arbitrator dispute… then the existence of 29(1)(b)(ii) with all its breadth must mean…” that orders of the type contemplated by that sub-section could be made by the Arbitrator. Counsel emphasised however that this was very much an alternative position. From the transcript it seems counsel was in part maintaining this submission because, as put by the Senior Commissioner, the dispute might end up “somewhere else” (meaning before the Full Bench) in the near future. As to that the Senior Commissioner then said “probably... the first question that'll be put to you by the - by the Full Bench [sic] about whether there was jurisdiction to make… any orders in relation to [the] contractual benefits claims”. As will be set out below this was a somewhat prophetic comment. The issue was not however taken any further in the submissions of either counsel before the Senior Commissioner. The Senior Commissioner again reserved her decision.

The Supplementary Reasons
63 The Senior Commissioner published supplementary reasons on 19 September 2007. The Senior Commissioner did not address the point about the “exclusive jurisdiction” of the Arbitrator under s80E which was discussed with the respondent’s counsel at the second hearing. The Senior Commissioner rejected a submission by the then respondent that the orders contemplated in paragraph [98] of the primary reasons could not be made as the Commission was not so empowered under s80E(1)(e) of the Act. As this issue is not now in dispute on appeal it is unnecessary to refer to the reasoning to support this conclusion. Relevantly the Senior Commissioner said at paragraphs [8]-[9]:-
“8 Having reviewed paragraph [98] of the reasons I am of the opinion that the orders contemplated in that paragraph should be better expressed so as to properly reflect the provisions of s 80E(5). Further I am of the opinion that the way in which I contemplated making an order in paragraph [98] could be prima facie interpreted as an award of compensation. However I am of the opinion that I am empowered to make an order which will have the effect of requiring the Respondent to make the payments sought by the Applicants. Accordingly I intend to make orders that the decision of Respondent made in 2006 not to pay the Applicants for 40 hours a week at the ordinary rate of pay specified in the Award or the General Agreement be varied in that the Respondent is to pay the Applicants for 40 hours a week at the ordinary rate of pay specified in the Award or the General Agreement (whichever is the greater) from the time the decision made by the Respondent took effect in 2002 until the Applicants and the Respondent vary or terminate the statutory contracts of employment in the manner provided for in s 4H(5) of the Workplace Agreements Act 1993. As the Commission has two applications before it I will make separate orders in relation to Mr Wall and Mr Ward. The Respondent will be given 21 days to effect the variation of his decision.
9 In relation to the contractual benefits claims the Respondent contends that to make the order contemplated in paragraph [99] of the reasons would be to make an order to enforce the provisions of the Award. The Respondent says that s 83(3) of the IR Act provides that an application for an enforcement of an instrument which includes an award or industrial agreement shall not be made otherwise than to the Industrial Magistrate. I do not accept that such an argument could be made out in this matter as the findings made in the reasons make it clear that the Applicants’ entitlement to the amount claimed arise pursuant to the Applicants’ statutory contracts of employment and not by operation of the Award or General Agreement.”

The Orders
64 In application P 1 of 2007 by Mr Wall, the orders made were:-
“(1) The decision of the Respondent in 2006 not to pay the Applicant for 40 hours a week at the ordinary rate of pay specified in the Public Service Award 1992 (“the Award”) or the Public Service General Agreement 2006 (“the General Agreement”) is varied in that the Respondent is to pay the Applicant for 40 hours a week at the ordinary hourly rate of pay specified in the Award or the General Agreement (whichever is the greater) from the date of the effect of decision in 2006 until the Applicant and the Respondent vary or terminate the statutory contract of employment in the manner provided for in s 4H(5) of the Workplace Agreements Act 1993.

(2) The variation of the decision is to be effected by the Respondent within 21 days of the date of the Order.”

65 The same two orders were made in P 2 of 2007 for the benefit of Mr Ward.
66 The Senior Commissioner also made an order in application B 44 of 2007 by Mr Wall in the following terms:-
“[T]he Commission … hereby:-

(1) DECLARES that the Respondent owes the Applicant contractual benefits;

(2) ORDERS that the Respondent pay the Applicant $3,699.30 within 21 days of the date of this order;

(3) ORDERS that the Respondent pay the Applicant 40 hours a week at the ordinary rate of pay specified in the Public Service Award 1992 or the Public Service General Agreement 2006 (whichever is the greater) until the Applicant and the Respondent vary or terminate the statutory contract of employment in the manner provided for in s 4H(5) of the Workplace Agreements Act 1993.”

67 In Mr Ward’s denial of contractual benefits claim B 45 of 2007, the Senior Commissioner made identical orders except that the amount in order 2 was $4,164.00.

The Appeals
68 There is an appeal against each of the sets of orders made by the Senior Commissioner. The appeals were given numbers FBA 14, 15, 16 and 17 of 2007. Appeals FBA 14 and 15 were against the orders in favour of Mr Ward and FBA 16 and 17 against those in favour of Mr Wall. FBA 14 and 16 were about the orders made in deciding applications P 1 and P 2 of 2007 whereas FBA 15 and 17 were about the orders made in the denial of contractual benefits claims B 44 and B 45 of 2007.

The Grounds of Appeal
69 The grounds of appeal in FBA 14 and 16 were identical, as were those in FBA 15 and 17, except with respect to the amounts ordered to be paid, set out earlier. In FBA 14 and 16 there were 5 grounds. At the hearing the appellant was given leave to substitute a new ground 5. After this amendment the grounds of these appeals were:-
“1. The Senior Commissioner erred in law in making an order in favour of the Respondent (to this appeal) in circumstances where the claim was referred by the Respondent but was not one to which section 80E(2)(a) Industrial Relations Act applied.
2. The Senior Commissioner erred in law in failing to interpret section 4H(6)(a) Workplace Agreements Act 1993 to mean that the Appellant and Respondent were bound by the Public Service Award 1992 and the Public Service General Agreement 2006 with the result that the Respondent could only be paid the ordinary hourly rate of pay specified in the Award or General Agreement for an average of 37½ hours per week as provided for by the Award and General Agreement.
3. The Senior Commissioner erred in law in finding that the meaning of section 4H Workplace Agreements Act 1993 was ambiguous.
4. The Senior Commissioner erred in law in finding that the Appellant’s interpretation of section 4H Workplace Agreements Act 1993 did not promote the purpose of the amendments made to the Workplace Agreements Act 1993 by the Labour Relations Reform Act 2002.
5. The Senior Commissioner erred in ordering that the Appellant pay the Respondent at the ordinary hourly rate of pay specified in the Public Service Award 1992 or Public Service Agreement 2006 in that this order enforced an award which is the exclusive jurisdiction of an industrial magistrate’s court.”

70 In FBA 15 and 17 there were 7 grounds of appeal but at the hearing the appellant was given leave to delete ground 7. The remaining grounds of appeal were:-
“1. The Senior Commissioner erred in law in failing to interpret section 4H(6)(a) Workplace Agreements Act 1993 to mean that the Appellant and Respondent were bound by Public Service Award 1992 and the Public Service General Agreement 2006 with the result that the Respondent could only be paid the ordinary hourly rate of pay specified in the Award or General Agreement for an average of 37½ hours per week as provided for by the Award and General Agreement.
2. The Senior Commissioner erred in law in finding that the meaning of section 4H Workplace Agreements Act 1993 was ambiguous.
3. The Senior Commissioner erred in law in finding that the Appellant’s interpretation of section 4H Workplace Agreements Act 1993 did not promote the purpose of the amendments made to the Workplace Agreements Act 1993 by the Labour Relations Reform Act 2002.
4. The Senior Commissioner erred in law in finding that the Appellant had denied the Respondent contractual benefits in that the Senior Commissioner’s decision was based on a finding that the Respondent was entitled to be paid the ordinary hourly rate of pay under the Public Service Award 1992 or the Public Service General Agreement 2006 for an average of 40 hours per week when the Award and General Agreement by which the Appellant and Respondent were bound provided that the Respondent be paid the ordinary hourly rate of pay for no more than an average of 37½ hours per week.
5. The Senior Commissioner erred in law in ordering that the Appellant pay to the Respondent the sum of [$3,699.30/$4,164.00], being the amount the Appellant had been purportedly underpaid by the Appellant’s failure to pay the ordinary hourly rate under the Public Service Award 1992 or the Public Service General Agreement 2006, in that this order enforced an award which is the exclusive jurisdiction of an industrial magistrate’s court.
6. The Senior Commissioner erred in law in ordering that the Appellant must, from the date of the order, pay the Respondent for an average of 40 hours per week at the ordinary rate of pay specified in the Public Service Award 1992 or the Public Service General Agreement 2006 when the Award and General Agreement, by which the Appellant and Respondent were bound, provided that the ordinary rate may only be paid for an average of 37½ hours per week.”

The Notice of Contention
71 Prior to the hearing of the appeals the respondents filed a “notice of contention” to the effect that they would contend the orders of Senior Commissioner Smith ought be affirmed on grounds other than those relied upon in the judgment at first instance. Neither the Act nor the Industrial Relations Commission Regulations 2005 contain a specific procedure for a respondent to file a “notice of contention”. The filing and service of the notice was however a sensible way to bring the issues to the attention of the Full Bench and the appellant. At the hearing the Full Bench gave leave to the respondents to rely upon the notice. The grounds of the notice were:-
“As to statutory construction

1. The learned Senior Commissioner erred in law in, having:

(a) implicitly recognised that the relevant statutory text and/or industrial instruments were ambiguous; and, further or alternatively,

(b) acknowledged the importance of a purposive approach to statutory construction;

then failing to have any, or any proper, regard to relevant extrinsic materials, namely the materials pleaded at paragraphs 7-8 of the Respondents' Statements of Claim, in
(c) resolving that ambiguity; further or alternatively

(d) reinforcing the Commission's discernment of statutory purpose; or, further or alternatively

(e) otherwise properly construing the relevant statutory text and industrial instruments.

As to the Respondents' alternative contention

2. If, contrary to the Respondents' primary claim and contentions, the Appellant's construction of the terms of the Respondents' contracts of employment is arguably correct, that construction must be read down in favour of the Respondents' respective accrued rights to be paid for the 40 hours of work contracted to be performed, and actually performed, at the rate of any applicable award (including relevant industrial agreements).

As to remedy

3. The jurisdiction to make the orders is lawfully sourced, in the alternative, by the conferral of jurisdiction on the Commission by the dispute resolution procedures pleaded in paragraph 12(a) of the Statements of Claim in Nos. P1 and P2 of 2007.”

Intervention by the Minister
72 The Senior Assistant State Solicitor at the State Solicitor’s Office wrote to the Registrar on 20 November 2007 to advise that under s30 of the Act the Minister for Labour Relations would seek leave to intervene in the appeals. Leave was granted at the hearing because the Minister has an interest in the outcome of the appeals. The appellant’s counsel also appeared for the Minister. In that capacity he adopted the submissions made on behalf of the appellant.

The Additional Issues
73 At the commencement of and during the hearing the Full Bench discussed with counsel four issues which were relevant but did not seem to have been adequately addressed. These were:-
(1) Did the Senior Commissioner have jurisdiction to hear and determine the s29(1)(b)(ii) applications given the “exclusive jurisdiction” of the Arbitrator under 80E(1) of the Act.
(2) In any event did the Senior Commissioner have jurisdiction to contemporaneously hear and make orders to resolve the same dispute in both sets of applications, as an Arbitrator and an “ordinary” Commissioner. Also, were any of the orders superfluous or in conflict with each other and if so what is/are the consequence(s) of this.
(3) Was the dispute resolvable having regard to the difference between the weekly pay the respondents in effect sought and a weekly payment under the award for 37½ hours at ordinary rates and 2½ hours overtime.
(4) The meaning of s4A of the WAA and s100 of the LRRA and their impact upon the statutory contracts and present litigation.

74 It emerged that the preferable way for these four issues to be adequately addressed was to give counsel 14 days to make supplementary written submissions and then another 7 days to reply. Orders to this effect were made at the end of the hearing and later varied by consent to extend time by a short period. During the hearing counsel otherwise addressed each of the grounds of appeal and the notice of contention.

The Issues
75 Based on all of the grounds of appeal, the notice of contention and the 4 issues raised by the Full Bench, I think these issues need to be resolved in the disposal of the appeals:-
(1) Did the Commission have jurisdiction to hear and determine the s29(1)(b)(ii) applications? (Raised by the Full Bench).
(2) In any event did the Senior Commissioner have jurisdiction to contemporaneously hear and determine the same dispute in both sets of applications as an Arbitrator and an “ordinary” Commissioner? Also did the Commission have jurisdiction to make all 4 sets of orders; were any of the orders made in conflict or superfluous and if so what are the consequences of this? (Raised by the Full Bench).
(3) Were the respondents authorised to commence the applications with the Arbitrator, given s80F(2) and s80E(2)(a) of the Act? (FBA 14 and 16, ground 1).
(4) If the answer to this is yes, is the appellant prevented from appealing against the Arbitrator’s “decisions” because of the contents of s80G of the Act? (FBA 14 and 16, ground 1).
(5) What was the impact on the statutory contracts and the applications at first instance of s4A of the WAA and ss98 and 100 of the LRRA? (Raised by the Full Bench).
(6) Did the Senior Commissioner err in her construction of s4H of the WAA? (FBA 14 and 16, grounds 2, 3 and 4; FBA 15 and 17 grounds 1, 2 and 3).
(7) If the answer to (1) is yes, was the Senior Commissioner in error in deciding there was a denial of contractual benefits. (FBA 15 and 17, grounds 1-4 and also in effect ground 6).
(8) Was the making of the orders that the appellant pay specified sums of money to the respondents beyond jurisdiction because they involved the enforcement of an award which was within the exclusive jurisdiction of the Industrial Magistrate's Court? (FBA 14 and 16, amended ground 5; FBA 15 and 17, ground 5).
(9) Did the respondents have “accrued rights” under their contracts of employment to be paid for the 40 hours per week they were contracted to perform? (Notice of Contention).
(10) Did the dispute resolution procedures described in paragraph 12(a) of the statements of claim in P 1 and P 2 of 2007, provide alternative sources of jurisdiction for the granting of the remedies by the Commission. (Notice of Contention).

76 I will analyse the 10 issues in turn.
77 The third of what I have referred to as the “additional issues” is not in my opinion relevant to the determination of the appeals. It is relevant however to the resolution of the industrial or employment dispute. I will comment upon it in an afterword at the end of my reasons.

Issue 1 – Jurisdiction to Hear and Determine s29(1)(b)(ii) Applications
78 I have earlier quoted paragraph [95] of the reasons of the Senior Commissioner in which she expressed uncertainty about whether the Commission had the power to determine the s29(1)(b)(ii) claims. The Senior Commissioner said the matter had not been the subject of argument by counsel and consequently she would not make findings about the issue. The issue was also raised during the hearing on 6 September 2007 but not addressed in the Supplementary Reasons for Decision.
79 In my opinion and with respect the Senior Commissioner erred in taking the stance she did. As stated by the Full Bench in Crown Scientific Pty Ltd v Clarke (2007) 87 WAIG 598 at [96], the “Commission like any other court or indeed any Tribunal, has a duty to decide whether or not it has jurisdiction”. As set out in that paragraph there is a wealth of authority to support the proposition. As stated by Kirby J in BHP Billiton Ltd v Schultz (2004) 221 CLR 400 at [131]:-
“Before entering upon the exercise of jurisdiction and power, every court or tribunal must satisfy itself as to the existence of such jurisdiction and power. At least, it must do so where there is a contest or an apparent problem.”

80 In the footnote to this sentence, his Honour cited Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415; Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488 at 495; Cockle v Isaksen (1957) 99 CLR 155 at 161; Re Boulton; Ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129 at 133 at paragraph [21]. Kirby J repeated the same point more recently in Old UGC, Inc v Industrial Relations Commission of New South Wales in Court Session (2006) 225 CLR 274 at paragraph [51]. The cases which his Honour cited in Schultz show that this is a principle of long pedigree.
81 In Federated Engine-Drivers at 415, Griffiths CJ referred to the existence of this “first duty” as existing “if only to avoid putting the parties to unnecessary risk and expense”. In the same case, Barton J at page 428 said that it “is wrong to accept jurisdiction without sufficient inquiry as to refuse it with precipitancy”. The point made by Griffiths CJ about the first duty and the avoidance of unnecessary risk and expense for the parties was adopted by Katz J in Re Gilles Contracting Pty Ltd (in Liq); Khatri v Price and Another (1999) 95 FCR 287; (1999) 166 ALR 380 at [14] and by the New South Wales Court of Appeal in Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135, per Hodgson JA (Mason P and Handley JA agreeing) at paragraph [33], amongst other cases. It is also apposite here.
82 To use the words of Kirby J quoted earlier, in these applications there was an “apparent problem”. It was one which the Senior Commissioner was aware of and noted. Accordingly, the problem needed to be addressed and resolved. It could not be side-stepped merely because the question of “power” had “not been the subject of argument by counsel”. Even if the issue had not been raised or argued by counsel the Senior Commissioner should have made the parties aware of it, provided an opportunity to make submissions about it and then made a decision.
83 Also, any agreement between the parties could not have provided jurisdiction when in truth there was none. (See Bolgari v Steiner School and Kindergarten [2007] VSCA 58 at [55] and footnote 28 where Federated Engine-Drivers was cited as well as Fingleton v The Queen (2005) 227 CLR 166.) In Fingleton, Hayne J at paragraph [196] said that “a concession about the court’s jurisdiction … would not bind the court”. Although this was said in the context of a criminal trial, the same applies to any civil court or tribunal of limited jurisdiction. Dr Catherine Button in her article “The Federal Courts ‘Arising Under’ Jurisdiction and the Development of a ‘Contingent Jurisdiction’” (2006) 27 Australian Bar Review 327 at 348 cited Federated Engine-Drivers and said “even where the parties do not contest jurisdiction … it is well established that a court is obliged to consider its own jurisdiction before exercising it”. In my respectful opinion this is plainly correct.
84 As stated by the Full Bench in The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Roman Catholic Bishop of Bunbury Chancery Office and Others (2007) 87 WAIG 1148 at paragraphs [14] and [15]:-
“14 It is apparent that neither party nor the Commissioner at first instance addressed the present jurisdictional issue. This does not of course mean that it is an issue which the Full Bench can overlook. Issues of jurisdiction are fundamental to the hearing and determination of applications.
15 In SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 1760 at 1762 the Full Bench confirmed that jurisdiction cannot be waived, given by consent or conferred when non existent. In Murcia and Associates (A Firm) v Grey (2001) 25 WAR 209 Steytler J (with whom Wallwork J agreed) said at [14] that even where no jurisdictional point was taken at first instance this cannot “create jurisdiction”. As his Honour said it is the duty of a judicial officer to satisfy themselves that they have jurisdiction and an appeal court “is obliged itself to take notice of the fact of that absence of jurisdiction”. (See also Crown Scientific Pty Ltd v Clarke (2007) 87 WAIG 598 at [96]-[97]).”

85 In their supplementary written submissions on appeal, neither party made clear submissions on the consequence of the Senior Commissioner not deciding the issue, nor what should happen if the Full Bench were to decide the Senior Commissioner did not have jurisdiction to determine the s29(1)(b)(ii) claims. The respondents’ counsel observed that neither this issue, nor any aspect of it, was raised against the respondents in any of the appeal grounds presently on foot. Whilst this is so, as I will mention again later, it does not mean any opinion by the Full Bench that there was an absence of jurisdiction does not have consequences.
86 The next question is whether the Senior Commissioner did have jurisdiction to determine the s29(1)(b)(ii) claims.
87 Section 80E(1) of the Act has been earlier quoted. It provides the Arbitrator with “exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer”. It is not in dispute that the respondents were and are government officers. The expression “industrial matter” is defined in s7 of the Act. I have earlier referred to the expansive definition of “industrial matter” in s7 of the Act. The “matter” of the dispute between the appellant as employer and the respondents as employees was clearly within both the general meaning of “industrial matter” and the matters specified in paragraph “(a)” of the definition.
88 Accordingly, under s80E(1) of the Act the Arbitrator had “exclusive jurisdiction to enquire into and deal with” the present dispute. The next relevant question is what was the nature and content of Arbitrator’s exclusive jurisdiction.
89 The issue was considered by the Industrial Appeal Court in Director General Department of Justice v Civil Service Association of Western Australia Incorporated (2006) 86 WAIG 231. In the joint reasons of Wheeler and Le Miere JJ their Honours said at paragraphs [26]-[27] and [29]:-
“26 The first observation to be made about the exclusive jurisdiction of the Arbitrator conferred by subs (1) is that it is unlikely, having regard to the subject matter and to indications in the Act itself, that it is intended to exclude any power conferred on any other body by other legislation to inquire into any matter relating to the work of government officers. For example, it seems unlikely that it was intended to exclude the particular jurisdiction conferred on other bodies by statutes such as the Equal Opportunity Act 1984 (WA), or the Occupational Safety and Health Act 1984 (WA). Even less likely is it that it was intended to exclude those provisions of the Criminal Code (WA) which relate directly to certain aspects of the work of government officers, in that they are directed to the prevention of the misuse of the office (eg, s 83 - corruption). Within the Act itself, ss 80H and 80I set up a Public Service Appeals Board, and confer upon the Board jurisdiction to hear and determine, inter alia, appeals by public service officers in relation to decisions of employing authorities concerning (among other matters) conditions of service other than salary. Appeals of that kind would plainly involve inquiring into industrial matters, and it can hardly be thought that s 80E(1) was intended to exclude the jurisdiction of such a Board to perform its function.
27 It seems likely, having regard to the considerations mentioned, that the expression "exclusive jurisdiction" in s 80E(1) was intended to do no more than exclude the general jurisdiction of the Commission, pursuant to s23, to inquire into and deal with industrial matters generally. That conclusion is fortified by an examination of s 80D, which prescribes the appointment of a Public Service Arbitrator within the Commission, to hold office for a period not exceeding two years and to be eligible for reappointment. It appears that it was thought desirable to ensure that some expertise developed in a particular member of the Commission in relation to matters involving government officers, and perhaps that there should be some continuity in dealing with such matters, so that it was thought preferable to select an individual Commissioner rather than to leave such matters within the jurisdiction of the Commission generally. Section 80E(1) may be directed at achieving only that end. There is therefore no need to be concerned that a finding about the power of the Arbitrator to make determinations would have any effect upon the jurisdiction of this Court to engage in the process of judicial review …
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.”

90 Hasluck J wrote separate reasons but also expressed general agreement with the joint reasons ([64]). There was nothing in his Honour’s reasons which casts any doubt upon the paragraphs just quoted.
91 I have also quoted earlier the relevant words from s29 of the Act. As the heading to the section says, it is about who may refer matters to the Commission. Section 29(1)(b)(ii) provides for individual employees to refer to the Commission claims that they have not been allowed a benefit to which they are entitled under their contract of employment. The structure of s29 contains the clear inference that Parliament regarded a denial of a contractual benefit to be an “industrial matter”. This conclusion is reinforced by the general definition of “industrial matter” in s7.
92 When an industrial matter is referred to the Commission under s29, the Commission has the jurisdiction to inquire into and deal with the industrial matter because of s23(1) of the Act. As stated in the joint reasons quoted earlier, the effect of s80E(1) is that the general jurisdiction of the Commission pursuant to s23 is excluded. That “general jurisdiction” includes claims referred to the Commission under s29(1)(b)(ii) of the Act. The consequence is that the Commission did not have any jurisdiction to deal with the respondents’ referral of the s29(1)(b)(ii) claims. This conclusion is fortified by the contents of s22A of the Act, which has been earlier quoted. Accordingly, the present industrial matters were within the exclusive jurisdiction of the Arbitrator and could only be dealt with by the Arbitrator in accordance with ss80C-G of the Act.
93 The contents of s80G(1) of the Act, quoted above, do not alter this conclusion. The subsection provides for certain provisions of the Act “that apply to or in relation to the exercise of jurisdiction of the Commission” to apply, with modifications, to the exercise of the Arbitrator’s jurisdiction. This does not give to the Arbitrator the jurisdiction vested in the Commission generally under s23 or have the effect that a government officer may concurrently refer the same industrial matter to both the Arbitrator and the Commission exercising its general jurisdiction.
94 The s29(1)(b)(ii) claims ought to have been dismissed on the basis of an absence of jurisdiction. The issue was not addressed at first instance as it should have been. Also, although the point does not form one of the grounds of appeal, this does not give the Commission’s lack of jurisdiction immunity from correction. This issue does not, at least as yet, need to be further considered. This is because there are grounds of appeal which assert the orders made pursuant to the s29(1)(b)(ii) referrals should be set aside for other reasons.

Issue 2 – Did the Commission have Jurisdiction to Make All Four Sets of Orders and If So Were They In Conflict or Superfluous
95 The first aspect of this issue has been decided by what I have said above. The Senior Commissioner did not have the jurisdiction to contemporaneously hear and determine the same dispute in both applications or make all 4 sets of orders. If the Senior Commissioner did have jurisdiction, there seems to be no conflict between the 4 orders. The duplication of orders to the same effect would appear unnecessary. In the circumstances however there is no purpose served in further addressing the point.

Issue 3 – Were the Respondents Authorised to Refer the Applications to the Arbitrator
96 Section 80F of the Act sets out by whom matters may be referred to the Arbitrator. An individual government officer may only refer claims to the Arbitrator in limited circumstances. I earlier quoted s80F(2), which provides that a “claim mentioned in section 80E(2)(a) may be referred to an Arbitrator by the government officer concerned …”
97 The present effect of s80F is that unless the claims were of a type mentioned in s80E(2)(a), the respondents did not have the authority to refer their claims to the Arbitrator. There are three types of claims within s80E(2)(a) of the Act. They are “in respect of”, either the salary, range of salary or title “allocated to the office occupied by a government officer”. The respondents’ claims were not claims in respect of a range of salary or title. Therefore unless the claims were “in respect of the salary … allocated to the office occupied by a government officer” the respondents had no power to refer the claims. This third type of claim is not the payment or amount of the salary of the government officer. It is only the salary “allocated” to that person’s “office”.
98 The applications to the Arbitrator were made upon the grounds set out in the statements of claim in P1 and P2 of 2007. To repeat what has been said earlier, paragraph [10] of the statements of claim referred to schedules A and B which summarised the arrears said to be due and owing to the respondents on a “proper interpretation of the totality of the instruments and materials governing their contracts of employment.” Paragraph [11] asserted that despite demand (the then respondent) had “refused or declined to pay the [then] applicants at an hourly rate equivalent to employees at a equivalent levels who work a 75 hour fortnight and whose salaries are governed by” the PSGA. I have already summarised the prayer for relief.
99 In summary the respondents’ claims asserted they had not been paid in accordance with their statutory contracts of employment. This was because the respondents argued the combined effect of these contracts, s4H of the WAA and the PSGA was that they should have been paid at the ordinary rate of pay under the award for their 40 hours work per week. In short, it was a claim which asserted a breach of a contract, as modified by statute, by non payment in accordance with its terms.
100 Despite the breadth of the expression “in respect of”, emphasised by the respondent’s counsel, in my opinion the respondents’ claims, properly characterised were not “in respect of” the salary allocated to an office. The determination of the claims by the Arbitrator could affect the amount of the respondents’ salary, but this is not the same thing.
101 Accordingly, the appellants have in my opinion established the error pleaded in ground 1 of FBA 14 and FBA 16.
102 This point was not taken at first instance. Whilst that is regrettable, it does not of itself have the consequence that the grounds of appeal must be rejected. It is established that where matters of jurisdiction are involved, the principles discussed by the High Court in Coulton and Others v Holcombe and Others (1986) 162 CLR 1 and subsequent cases do not apply. I have earlier quoted the apt paragraphs from the Full Bench decision in Bishop of Bunbury.

Issue 4 – Possible Preclusion of Appeal Rights Because of s80G(2) of the Act
103 Section 80G(2) has been quoted earlier. The effects and limitations of the subsection were fully discussed in Health Services Union of Western Australia (Union of Workers) v Director General of Health (2007) 87 WAIG 737. In these appeals, my conclusion on issue 3 has made this a non-issue. In my opinion there was not before the Arbitrator “a claim mentioned in section 80E(2)”. Accordingly, s80G(2) has no application.

Issue 5 – The Impact on the Statutory Contracts and Applications of s4A of the Workplace Agreements Act 1993 (WA) and ss98 and 100 of the Labour Relations Reform Act 2002 (WA)
104 All of these sections have been quoted earlier. Both counsel submitted that although the WAA has expired because of s4A, s100 of the LRRA continued the existence of s4H of the WAA, so that it applied to the present litigation. In my opinion this is correct.

Issue 6 – Was there an Error in the Construction of s4H of the WAA?
105 This was the issue which occupied most of the submissions and hearing time in the appeal.

(a) The Senior Commissioner’s Reasoning
106 The Senior Commissioner’s process of reasoning in construing the section was:-
(a) There was an uncertainty and therefore ambiguity in the meaning and effect of s4H(6). ([61]).
(b) The modern approach to statutory interpretation requires a court to look at the purpose or object of the act under consideration and the “mischief” which the act was designed to remedy. ([76], [77])
(c) To ascertain the “mischief” courts may consider extrinsic materials such as the second reading speech. ([77])
(d) Based on the quoted paragraphs from page 7512 of Hansard on 19 February 2002, the amendments to the WAA were:-
(i) Designed to produce interim arrangements.
(ii) To encourage employers and employees to choose to enter into different industrial arrangements.
(iii) Put forward on the basis that no employee would be disadvantaged after the expiry of their workplace agreement. ([78])
(e) The interpretation put forward by the (now) appellant did not promote the purpose of the amendments to the WAA. Given the purpose and the express words of ss4H, 4I and 4J of the WAA, except in relation to rates of pay, the rights and obligations in a workplace agreement are not rendered inoperative by the provisions of the award. ([79])
(f) Section 4H(6)(a) and (7) have the effect that except where s4H(8) applies, the rate of pay for each condition of employment created by the workplace agreement is the rate of pay prescribed in the award. ([79]).

(b) Statutory Construction
107 It is not entirely clear to me that, with respect, the Senior Commissioner properly directed herself as to the approach which ought to have been taken in deciding the question of statutory construction. In my supplementary reasons in Kenji Auto Parts Pty Ltd t/a SSS Auto Parts (WA) v Fisk (2007) 87 WAIG 328 (agreed with by Smith SC and Scott C) I referred to this issue at paragraph [38]. As there stated, statutory construction involves a consideration and analysis of the meaning of the words used in a section in the context of the legislation and legislative scheme as a whole, to try to discern the intention of the legislature (Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [69]; and Wilson v Anderson and Others (2002) 213 CLR 401 at paragraph [8]).
108 Additionally, in Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485, Kirby J at [113] emphasised that attention must be first focussed “upon the crucial language of the relevant provisions before other aids to construction are considered”. In my opinion, with respect, Smith SC may well have not sufficiently focussed on the language of the legislation and legislative context before moving to a consideration of extrinsic material to determine the relevant “mischief”. Additionally, as set out below, I respectfully think the Senior Commissioner’s view about the “mischief” was too narrow.

(c) The Meaning of Section 4H
109 In my opinion, contrary to that of the Senior Commissioner, s4H of the WAA is not ambiguous. Section 4H(2) provides that the employment of an employee becomes subject to a contract of employment “under this section”. The contents of s4H(1) make it plain that this occurs where, as here, a workplace agreement ceases to have effect because of one of ss4C, 4D, 4E or 4F. Section 4H(3) provides that for individual workplace agreements the contract of employment contains “the same provisions as those of the workplace agreement”. Section 4H(5) provides for the variation or termination of the statutory contract of employment.
110 Section 4H(6) is central in my opinion to the present issue. It provides that “Despite subsection (2)” the employer and the employee are “bound by” any award that “extends to them”, or any employer-employee agreement (EEA) under Part VID of the Act to which they are parties. The Senior Commissioner quoted the Macquarie Dictionary definition of “despite”. This included “in spite of; notwithstanding”. She also quoted the definition of “notwithstanding”, which included “without being withstood or prevented by; in spite of the fact that; although”. The Senior Commissioner said these definitions do “not indicate with any clarity whether the award is to prevail”. In my opinion however, and with respect, the use of the word “despite” in conjunction with the expression “bound by” in s4H(6) is important and provides the relevant clarity. Section 4H(6) has the effect that even though the employer and employee have a statutory contract of employment they are also bound by an applicable award or EEA. As I will set out in more detail below, being “bound by” an award has legal consequences. If parties are bound by an award, then a contract of employment which contains terms that are less favourable than the award has no lawful effect. In my opinion this is so for the statutory contracts of employment. My conclusion arises from the interaction between s4H(6) and ss4H(2) and (3). The statutory contracts created by s4H(2) are “under this section”. The contract referred to in sub-section (3) is still “the contract of employment”, created by sub-section (2), which in turn is “under this section”. “This section” includes s4H(6) which provides for the binding nature of an applicable award. In my opinion the use of the expression “bound by” establishes the primacy of an applicable award, given the text and context of s4H. In referring to “context” I include the legislative scheme of the Act and the WAA as a whole after the amendments made by the LRAA.
111 The respondents’ counsel emphasised that s4H(3) provided that the contract contained the same terms as the workplace agreement. Whilst this is so, the parties are also bound by any award that extended to them. The consequence of an award being binding is that if a contract provided for inferior conditions of employment, the award prevails. In my opinion, reaching this conclusion does not have the effect that the Senior Commissioner said it did; that the rights and obligations in a workplace agreement are rendered “inoperative” by an award ([79]). I respectfully, disagree. Instead, I accept the appellant’s counsel’s submission that the terms of the workplace agreement continue as a contract of employment “but despite this, the parties are bound by the award, with the usual consequences”. (Appellant’s outline of submissions, paragraph [28]). I will address this issue in greater detail later in these reasons.
112 The respondent’s counsel also submitted the statutory scheme provided “co-existence” between an award and statutory contract. Generally, this might be so, but on occasions where there is conflict between the award and the contract, and the contract provides an inferior term, the award prevails.
113 The respondents’ counsel also submitted it would not have been the intention of the legislature to affect a disadvantage on employees. It was then submitted that if the appellant’s construction of the legislation was favoured by the Full Bench, the outcome of the present litigation would be to effect a disadvantage on the respondents. I do not accept this submission. Firstly, it has not been clearly shown that what the respondents would be paid for 37½ ordinary hours and 2½ hours overtime under the award is less than what the respondents seek. Secondly, unfairness in an individual case is not decisive in construing the legislation. Thirdly, if there is unfairness the parties can move away from the statutory contracts by entering into another form of industrial agreement or instrument as contemplated by the legislation. Fourthly, the appellant’s counsel said, without demur, and by reference to s4H(8) of the WAA that the respondents have not been paid any less, on an annual basis, than they had under their workplace agreements.
114 The meaning and effect of s4H(6) can also be tested by reference to each type of industrial instrument it covers. I will analyse this next.

(d) Awards, Employer-Employee Agreements and Industrial Agreements
115 I have earlier quoted the definition of “award” in s3 of the WAA. This definition was not amended from when the WAA was enacted in 1993. This, in combination with s4H(6) of the WAA meant that “despite” s4H(2), parties to statutory contracts of employment were bound by:-
(i) An EEA under Part VID of the Act.
(ii) An industrial agreement under the Act.
(iii) An order under the Act.
(iv) An award that extends to them.

116 In my opinion the nature of (i), (ii) and (iv) gives insight into the meaning and effect of s4H(6) of the WAA. I will consider each of them.

(i) Employer-Employee Agreements
117 Part VID of the Act, about EEA’s, was inserted by the LRRA. Section 97UA of the Act provides:-
“97UA. Employer and employee may make an EEA
A single employer and a single employee may make an agreement, called an employeremployee agreement, that deals with any industrial matter.”

118 The legislative scheme in this part, very generally, is that if an EEA is registered by the Registrar of the Commission, it takes effect and “operates to prevent from extending to the employee any award that would otherwise do so”. (s97UE(1)). An EEA can only be registered however if it passes a “no disadvantage test”. (See ss97UE, 97UR(1) and Division 6 of Part VID of the Act). The no disadvantage test is defined in s97VS of the Act. It is not passed if the provisions of the EEA, on balance reduce “the overall entitlements of the employee” under an applicable “award” or “relevant order”. (Definitions of “award” and “relevant order” are contained in s97VR of the Act).
119 An EEA could only have been entered into after the making of a workplace agreement. This is because EEA’s were not provided for in the Act prior to the amendments made by the LRRA. Relevantly, s4H(6) provides that “despite” a statutory contract, an employer and employee are “bound by” an applicable EEA. In the context, this could only mean that if there is a conflict between the terms of a pre-existing workplace agreement, which converted into a statutory contract, and an EEA, the EEA’s terms would prevail. In my opinion, no other construction would make sense.
120 Because EEA’s were only provided for by the LRRA, one could logically only exist between employer and employee after a workplace agreement was made. If it was made when a workplace agreement became a statutory contract the parties were, bound by the EEA “despite” the statutory contract. If there was conflict between an EEA and a statutory contract, about a term of employment, the EEA would apply as the parties were “bound by it”.

(ii) Industrial Agreements
121 As stated the definition of “award” in s3 of the WAA referred to an “industrial agreement” under the Act. From 1993, when the WAA was enacted, to the present, the meaning of “industrial agreement” in the Act has not changed. It is defined in s7 to mean “an agreement registered by the Commission under this Act as an industrial Agreement”. The registration of an industrial agreement is provided for in s41 of the Act, which was first inserted by s26 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 (WA). The nature of agreements which could be registered was changed by the Industrial Relations Amendment Act 1993 (WA). This amendment act amended s41, and inserted s41A into the Act. The scheme governing “industrial agreements” was changed again by amendments made by the LRRA to s41 and the repeal and replacement of s41A. Section 130 of the LRRA inserted Part II Division 2B into the Act. This division is headed “Industrial agreements” and comprises ss40C – 43 of the Act.
122 Section 41(1) of the Act is now:-
“41 Industrial agreements
(1) An agreement with respect to any industrial matter or for the prevention or resolution under this Act of disputes, disagreements, or questions relating thereto may be made between an organisation or association of employees and any employer or organisation or association of employers.”

123 It is notable that an industrial agreement can only be made by an organisation or association of employees and not an individual employee. This is consistent with an amendment to the objects of the Act which was also enacted by the LRRA. The “principal objects” of the Act are contained in s6. By s127 of the LRRA, paragraphs 6(aa) – (ag) were added. Paragraph 6(ad) was “to promote collective bargaining and to establish the primacy of collective agreements over individual agreements”.
124 Linked to this was the insertion of s41(1a) into the Act by the LRRA and the repeal and replacement of s41A. Section 41(1a) provided that “[a]n agreement may apply to a single enterprise or more than a single enterprise”. Under the repealed s41A an agreement could not be registered as an industrial agreement if it applied to “more than a single enterprise”. The amendments made by the LRRA therefore permitted wider scope for industrial agreements, made by organisations or associations of employees, as part of the new object of the Act to promote collective bargaining and establish the “primacy of collective agreements”.
125 Section 41(9) of the Act provides that “[t]o the extent that an industrial agreement is contrary to or inconsistent with an award, the industrial agreement prevails unless the agreement expressly provides otherwise”.
126 The effect of s4H(6) of the WAA is that where parties had entered into an industrial agreement this was binding “despite” subsection (2) and the existence of a statutory contract. If there was a material conflict between the terms of the contract and the industrial agreement the terms of the latter, as a binding industrial agreement, prevailed.

(iii) Orders
127 The reference to “an order under” the Act, included in the definition of “award” in s3 of the WAA does not require additional consideration.

(iv) Awards
128 The making of awards is provided for by Part II, Division 2A of the Act which comprises ss36A-40B. (See also s29A (1a) - (4) for procedural requirements). Section 37 sets out the effect, area and scope of awards. Section 37(1)(a) provides that an award “extends to and bind[s]” all employees employed in any calling mentioned therein in the industry or industries to which the award applies and all employers employing those employees.
129 A key consequence of an award being binding on an employer and employee is contained in s114 of the Act which is:-
“114. Prohibition of contracting out
(1) Subject to this Act, a person shall not be freed or discharged from any liability or penalty or from the obligation of any award, industrial agreement or order of the Commission by reason of any contract made or entered into by him or on his behalf, and every contract, in so far as it purports to annul or vary such award, industrial agreement or order of the Commission, shall, to that extent, be null and void without prejudice to the other provisions of the contract which shall be deemed to be severable from any provisions hereby annulled.
(2) Each employee shall be entitled to be paid by his employer in accordance with any award, industrial agreement or order of the Commission binding on his employer and applicable to him and to the work performed, notwithstanding any contract or pretended contract to the contrary, and the employee may recover as wages the amount to which he is hereby declared entitled in any court of competent jurisdiction, but every action for the recovery of any such amount shall be commenced within 6 years from the time when the cause of action arose, and the employee is not entitled to recovery of wages under this subsection and otherwise, in respect of the same period.”

130 It is significant in my opinion that the legislature, in s4H(6) used the expression “bound by”. The contents of s4H(6) are not to be construed in a vacuum, but in the context of the clearly understood meaning and effect under the Act of an award being binding upon employers and employees. The Senior Commissioner said s114 of the Act did not apply for the reasons set out in paragraph [82] which I have earlier quoted. I do not with respect accept the Senior Commissioner’s reasoning on this point. The terms of s114 in my opinion go beyond application “to parties entering into a contract of common law”. At pivotal places, s114(1) and (2) refer to “every contract” and “any contract” respectively. The statutory contract created by s4H(2) of the WAA is simply described as “a contract of employment under this section” and therefore is not in my opinion outside the descriptions in s114 of the Act.
131 In my opinion it would have required clear language for the legislature to demonstrate an intention to create a statutory contract of employment, between parties who were also “bound by” an award, but where the consequence provided for under s114 of the Act did not apply. In my opinion there is no such language within s4H of the WAA. The use of the expressions “Despite subsection (2)” and “bound by”, in s4H(6) means in my opinion that except as otherwise stated in s4H, if there is a material conflict the award takes primacy over the statutory contract of employment in setting a safety net of minimum conditions and entitlements of employment.
(e) Conclusions on Section 4H(6)
132 The effect of s4H(6) in combination with the definition of an “award” in s3 of the WAA is that “despite subsection (2)” an employer and employee are bound by any applicable award, industrial agreement or EEA. The latter two are agreements which are registered by the Commission. If an employee and employer are “bound by” such agreements, it is clear that where there is conflict between the agreements and the statutory contract, the legislative scheme is that the agreements prevail. Any different construction would not make sense. The same applies in my opinion, with respect to an award. If a statutory contract were to apply in preference to an award about a term of employment, this would be contrary to the legislative package comprised by the LRRA. The effect of workplace agreements, which devolve into statutory contracts, would be perpetuated rather than diminished. Individual workplace agreements in their new form as a statutory contract would take priority over collectively bargained for awards. This would be contrary to principal object 6(ad) of the Act.
133 The point is illustrated by this example. Suppose a statutory contract of employment provided that after 38 hours work per week an employee was entitled to be paid for each hour of overtime at 2 times their ordinary rate of pay. An award which “extends to” these parties provided for overtime at 3 times the ordinary rate of pay after 38 hours work per week. Assume the ordinary rate of pay was the same under the award and the statutory contract. Section 4H(6) says that “despite” the existence of the statutory contract the parties are “bound by” the award. As such, payment of overtime at the rate of 2 and not 3 times the ordinary hourly rate of pay would breach the award. The fact that the statutory contract provided otherwise is immaterial; the binding award applies to set the minimum conditions of employment.
134 Another point raised with counsel was about the prospect of the variation of a statutory contract under s4H(5). It was discussed whether the contract could be varied to provide inferior conditions to an applicable award. The answer must be no. This is because the legislation says parties are “bound by” the award and because of the meaning and effect of being “bound by” an award..
(f) Subsections 4H(7) and (8) of the WAA
135 Again, contrary to the opinion of the Senior Commissioner and with respect, my preferred construction of s4H(6) does allow work for s4H(7) to do. In my opinion the key to understanding s4H(7) is the nature of an award and that the sub-section focuses upon the “ordinary rate of pay”. Section 4H(7) commences, “where subsection (6)(a) applies”. This acknowledges that not all employers and employees have awards which “[extend] to them”. Where an award does extend to the parties, however, the ordinary rate of pay set out in the award only applies for the purpose of the award. It does not apply to a statutory contract of employment. The effect is that in deciding what the award provides for, the ordinary rate of pay contained in the contract of employment is not transposed into the award. This is consistent with the general interaction between an award and a contract of employment. A contract of employment may provide conditions superior to that of an award (unless a paid rates award), but if an award contains an ordinary rate of pay it is that which applies to the other clauses of the award. It is not the rate of pay contained in a contract of employment between employer and employee.
136 Section 4H(8) provides a limitation upon what an employer is required to pay to an employee where they have a statutory contract of employment and an award is also binding. The employer is not required to pay the employee more than the greater of the employee’s entitlement under the contract of employment or arising under the relevant award, whichever is the greater when assessed on a yearly basis. An effect of ss4H(7) and (8) is that the employee does not have the benefit of the maximum amount of payments which can be obtained by mixing and matching the provisions of the award and terms of the contract of employment.
137 The meaning and effect of these sub-sections supports the conclusion I expressed earlier about the construction of s4H(6) of the WAA.

(g) Sections 4I and 4J of the WAA
138 Unlike the Senior Commissioner I do not think sections 4I and 4J point to a different construction of s4H.
(h) The Purpose of the Amendments to the Workplace Agreements Act
139 The construction of s4H of the WAA that I have preferred is consistent with the purpose of the amendments to the WAA as effected by the LRRA.
140 Essentially, the purpose of the amendments was to dismantle the system of registration and the effect of workplace agreements. After their expiry, workplace agreements were to be replaced by statutory contracts of employment which were in general terms subject to the terms and conditions of any applicable award. The effect of the legislation was to reassert the primacy of awards in setting minimum conditions of employment for employers and employees bound by them.
141 In my respectful opinion the Senior Commissioner’s conclusion was too narrow about the “mischief” which emerged from the amendments to the WAA by the LRRA. In my opinion the analysis lacked an understanding of the overall legislative purpose. In my opinion this purpose, which I have set out, is discerned from the terms of the relevant legislation as a whole.

(i) Extrinsic Materials
142 If it is necessary, contrary to my opinion, to have regard to extrinsic materials, the paragraph at page 7513 of Hansard which I have quoted earlier and the fourth of the quoted paragraphs from page 7512 of Hansard support my conclusions. This is also reinforced by paragraphs [61] and [63] of the explanatory memorandum to the Labour Relations Reform Bill 2002, quoted earlier.
143 The November 2002 and November 2006 publications by the Western Australian Government, relied on by the respondents, do not provide a sound basis for discerning legislative intent. The documents were published by the Government after the legislation was passed by Parliament. It is the Parliament’s or legislature’s, intention which needs to be searched for, not the Government’s understanding of the meaning of legislation. If this were not so it could mean the Commission should give weight to a submission made to it, on the meaning of legislation, by a Minister on behalf of the Government simply by virtue of the holding of the office. This cannot be so. It would compromise the independence of the Commission as a court (s12 of the Act).
(j) Conclusion on Issue 6
144 In my opinion therefore the errors of construction asserted in grounds 2, 3 and 4 of FBA 14 and FBA 16 and grounds 1, 2, 3 and 4 of FBA 15 and FBA 17 are established.

Issue 7 – If the Commissioner had Jurisdiction to Decide the Denial of Contractual Benefits Claims, was there an Error in Deciding Contractual Benefits were not paid?
145 As set out as part of issue 1 above, in my opinion the Commission did not have jurisdiction to hear and determine the s29(1)(b)(ii) claims. Even if the Senior Commissioner did have this jurisdiction, she erred in her construction of s4H of the WAA as I have said. This clearly affected the Senior Commissioner’s reasons and conclusion in the denial of contractual benefits claims. The upholding of grounds 1-4 of FBA 15 and FBA 17 also apply to this issue.

Issue 8 – Were the Orders for Payment of Money Beyond Jurisdiction Because they Involved the Enforcement of an Award?
146 To a large degree ground 5 in all of the appeals is misconceived. The orders for the payment of money were not for the purpose of enforcing an award. The orders were to enforce what the Senior Commissioner, in error in my respectful opinion, decided were applicable terms of the statutory contracts. The terms did not apply because on the correct construction of s4H of the WAA, the award was the primary instrument governing the employment of the respondents.
147 On the facts, s4H operated in the following way. The appellant and the respondents were bound by the applicable industrial instruments. It is agreed that these provided for an average of 37½ ordinary hours average per week for full time workers. Employees could not be required to work longer hours at the ordinary rate of pay. If the employer wanted employees to work longer hours there was provision for the payment of overtime. When ascertaining the ordinary rate of pay of the respondents, the rate in the award applied. Although the statutory contract contained a term that ordinary hours were an average of 40 per week, the appellant could not enforce this as it would be contrary to the award. Additionally, the respondents could not insist that they worked an average of 40 hours per week and only be paid the ordinary award rates of pay. They too are bound by the award.
148 In the case of both respondents however, they have been working 40 hours per week on average, with at least the acquiescence of the appellant. If they have not been paid for 40 hours work it would be contrary to the applicable industrial instruments and general principle. If however the respondents wish to take action consequent upon this, then they must seek to enforce the applicable industrial instruments. Such an application would be within the exclusive jurisdiction of the Industrial Magistrate’s Court (IMC). (See ss83(1)(e) and 81(3) of the Act).
149 Accordingly although ground 5 of all appeals cannot be upheld, in my opinion the appellants are correct in their implied contention that if the respondents want payment for the 2½ hours for which they assert they have not been paid, they need to apply to the IMC. This follows from the proper construction of s4H of the WAA as applied to the present facts.

Issue 9 - Did the Respondents have Accrued Rights Under their Contracts of Employment to be Paid for the Forty Hours Per Week that they were Contracted to Perform?
150 This issue was a ground contained in the Notice of Contention. It was initially pressed by reference to section 37 of the Interpretation Act 1984 (WA). The submission was that prior to the repeal effected by the LRRA, the respondents had a right to be paid for the forty hours per week they contracted to perform, at the applicable award rate. It was submitted there was no legislative intention which affected that right. In the respondents’ further written submissions however it was submitted that in light of s100 of the LRRA it was strictly unnecessary for the Full Bench to consider the meaning and application of s37(1)(c) of the Interpretation Act. Sections 98-100 of the LRRA have been earlier quoted. In my opinion s99 is the material section. This is because the section makes it implicit that if the “provisions” of the division are not consistent with ss37 and 39 of the Interpretation Act, those sections do not apply in relation to the expiry of a workplace agreement. If, as argued by the respondents, the effect of ss37 and 39 of the Interpretation Act upon the present facts and legislation is that the respondents are entitled to be paid at the present award rate for the 40 hours per week they were working, this would be inconsistent with the impact, on the facts of this dispute, of a proper construction of s4H of the WAA. In those circumstances, s99 takes grip of the situation and provides the consequence that the Interpretation Act provisions do not prevail. In my opinion the ground is not established.

Issue 10 – Did the Dispute Resolution Procedures Provide an Alternative Source of Jurisdiction for the Granting of Remedies by the Commission?
151 I have earlier quoted paragraph 12(a) of the Statements of Claim in P 1 and P 2 of 2007. Clause 64 of the PSA 1992 sets out a dispute settlement procedure. Clause 64(5) provides for an unresolved dispute being referred to the Commission. Despite the apparent width of the subclause, it cannot change the effect of the Act. A public service officer may, under the Act, only refer a matter to the Commission in limited circumstances. The structure of the Act and the jurisdiction and power of the Commission to make industrial awards and orders is not such that there is capacity for public service officers to generally bring claims to the Commission on their own behalf. The same analysis and conclusions applies to Clause 35.5 of the PSGA and 8.5 of the Department of Agriculture Agency Specific Agreement 2005. Accordingly in my opinion this ground of the Notice of Contention is also not established.

Conclusions
152 In my opinion FBA 14 and 16 must be allowed and the orders of the Arbitrator set aside. This is because ground 1 has been upheld and the Arbitrator did not have jurisdiction to make orders because neither of the respondents could validly refer the claims to the Arbitrator. Even if there was jurisdiction, the appellant has established grounds 2, 3 and 4. These involved errors in the construction of s4H of the WAA which led to the orders which were made. Accordingly on this alternative basis these appeals must also be allowed and the orders set aside.
153 With respect to FBA 15 and 17 the same errors of construction mean that both of these appeals must be allowed and the orders made by the Commission set aside. In my opinion, as set out earlier, the Commission did not have jurisdiction to hear and determine the denial of contractual benefits claims. This did not form a ground of appeal. This would not, however, prevent the Full Bench from setting aside the orders made by the Commission. The Full Bench may not lay idle and leave intact orders not supported by jurisdiction. If this was the sole basis upon which I were to find error in the making of the orders by the Senior Commissioner, I would want the Full Bench to hear further from the parties before coming to any final conclusions or making orders.

Minute of Proposed Order
154 In my opinion in appeals FBA 14 and 16 and pursuant to s35(1) of the Act, a minute of orders should be drawn up and handed down, providing that the decision of the Full Bench is :-
1. The appeal is allowed.
2. The decision of the Arbitrator is quashed.

155 In FBA 15 and 17 in my opinion a minute of proposed order should be drawn up and handed down providing that the decision of the Full Bench is :-
1. The appeal is allowed.
2. The decision of the Commission is quashed.

Afterword
156 I earlier set out the issues which the Full Bench discussed with counsel at the commencement of and during the hearing of the appeals. As I said earlier, the third of these issues, although not necessary to determine for the resolution of the appeals, is pertinent to the dispute of the parties. In the supplementary written submissions of both the appellant and the respondents the issue was dealt with somewhat dismissively. The appellant acknowledged that the respondents had prepared a schedule setting out the amounts which would be owed to them if the hours in excess of 37½ hours were and are treated as overtime. The appellant emphasised however that its case was that if the overtime provisions of the applicable industrial instruments applied then the question of enforcement was within the exclusive jurisdiction of the IMC. The respondents acknowledged the topic was “canvassed informally between the parties prior to the hearing”. The respondents also said that having additional alternative causes of action was not of direct significance to the disposition of the appeals. The respondents highlighted the basis to the challenge of the orders made by the Senior Commissioner in the grounds of appeal and said the “presence of related, yet extrinsic, potential courses of action cannot, in logic or jurisdiction” detract from their position that the appeal grounds were without substance.
157 There is nothing inaccurate in what either of the parties submitted about this issue. And as the respondents properly point out it is not appropriate for the detail of informal discussions or conciliation conferences to be revealed to the Full Bench. In raising this issue, the Full Bench was concerned however that the parties focus keenly upon the detail and consequences of the positions they have taken to ascertain whether there is a place where the dispute can be settled.


BEECH CC:
158 The background to the matter is set out in the Reasons for Decision of his Honour the Acting President. As the Commission at first instance noted at paragraph [95] (Appeal Book page 182) Mr Ward and Mr Wall filed two types of applications in the Commission to resolve the dilemma in which they find themselves.
159 One type was an application to the Public Service Arbitrator. This would appear to be an appropriate type of application given that both applicants are public service officers employed pursuant to s11 of the Agriculture Act 1988 and under and subject to Part III of the Public Sector Management Act 1994. They are therefore government officers for the purposes of Part IIA Division 2 of the Industrial Relations Act 1979 and within that division, a Public Service 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”
(Section 80E(1)).

160 The second type of application was made not to the Public Service Arbitrator, but to the Commission in its general jurisdiction, that is, dealing with employees generally. The applications claimed Mr Ward and Mr Wall have not been allowed benefits, not being benefits under an award, to which they are entitled under their contracts of employment.
161 It is not immediately clear why two types of applications were lodged which effectively sought the same relief. The Industrial Relations Act 1979 distinguishes between employees who are government officers and employees generally by providing that the jurisdiction of the Public Service Arbitrator to enquire into and deal with any industrial matter relating to a government officer is an “exclusive jurisdiction”. This suggests that as Mr Ward and Mr Wall are government officers, and not employees generally, the Commission in its general jurisdiction would be unable to assist them and the second type of applications are mere waste paper.
162 This was recognised by the Senior Commissioner at first instance when she noted, again at [95], that whether the Commission has the power to determine the denied contractual benefits claims is not clear and has not been the subject of argument by counsel. Nevertheless, although the Senior Commissioner made no findings about this issue, she issued two orders declaring that Mr Ward and Mr Wall were each owed contractual benefits and ordering that they be paid those benefits (AB 133, 136).
163 These orders purport to achieve the same relief for Mr Ward and Mr Wall as the two orders that were also issued in the other type of application, they being the applications to the Public Service Arbitrator. Therefore, two sets of orders issued from the two types of applications: one set was issued by the Public Service Arbitrator and the other by the Commission. Each type of order is worded differently from the other type.
164 The orders are not expressed to be in the alternative so that the employer having complied with one type of order would be relieved from the need to also comply with the other, a situation which carries with it the risk that the employer concerned, who is obliged to obey each order, may be required to do different things to address the one issue. This is a situation that, with respect, is best to be avoided.
165 Even though having two types of orders co-existing is undesirable, the more important issue is whether it was possible for the two types of orders to issue. The claim made by Mr Ward and Mr Wall to the Commission in its general jurisdiction, claiming that they have been denied a contractual benefit, is an industrial matter. However, Mr Ward and Mr Wall are government officers and the Public Service Arbitrator has the exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer.
166 It was submitted on behalf of Mr Ward and Mr Wall that the right of an employee to refer a contractual benefits claim to the Commission in its general jurisdiction is s29(1)(b)(ii) which is found in Part II Divisions 2 to 2G of the Act. Our attention was drawn to s80G of the Act which provides, subject to the division of the Act in which s80G appears (i.e. Part IIA Division 2), that the provisions of Part II Divisions 2 to 2G that apply to, or in relation to, the exercise of the Commission’s general jurisdiction shall apply with such modifications as are prescribed and as may be necessary or appropriate, to exercise the jurisdiction of the Public Service Arbitrator.
167 However, s29(1)(b)(ii) is not a provision that “applies to or in relation to the exercise of the Commission’s general jurisdiction”; it is merely a provision enabling an employee to make a claim that they have been denied a contractual benefit.
168 More importantly, the provisions of Part II Divisions 2 to 2G (in which s29(1)(b)(ii) is found) specifically do not include a matter in respect of which a constituent authority (of which the Public Service Arbitrator is one) has exclusive jurisdiction under the Act (see s22A, and the definition of “constituent authority” in s7 of the Act).
169 Therefore section 80G to which we were referred does not assist Mr Ward and Mr Wall: it does not give to a Public Service Arbitrator the power to deal with a denied contractual benefit claim made to the Commission made in its general jurisdiction using s29(1)(b)(ii).
170 In other words, the two claims B 44 and B45 of 2007 made to the Commission in its general jurisdiction were invalid because the Commission in its general jurisdiction cannot enquire into and deal with an industrial matter relating to a government officer.
171 It must follow therefore that the two orders made by the Commission in its general jurisdiction in B 44 and B 45 of 2007 (2007 WAIRC 0116 and 0117 respectively) are invalid and should be quashed.
172 I turn now to consider the two orders made in applications P1 and P2 of 2007. I note that the orders say on their face that they were made by the Senior Commissioner; they do not say that they were made by a Public Service Arbitrator. Given the point made in the preceding paragraphs, it would be more accurate for the orders to say on their face that they are made by a Public Service Arbitrator. I note that the orders are expressed as having been made by the Commission, “pursuant to the powers conferred on it under s80E” and that, at least, indicates the exercise of power pursuant to that section by a Public Service Arbitrator. However, the orders can be made only by a Public Service Arbitrator and they should say so.
173 I turn to consider the grounds of appeal.
174 The first ground of appeal alleges that the Senior Commissioner erred in law in making the order in which she did when the claims referred by Mr Ward and Mr Wall were not one to which s80E(2)(a) of the Act applied. The significance of this is that Mr Ward and Mr Wall referred their claims to the Public Service Arbitrator themselves. Their claims were not made for example by the employer, by a union to which they may be eligible to belong, or by the Minister.
175 Under the Industrial Relations Act 1979 Mr Ward and Mr Wall may only refer to the Public Service Arbitrator themselves a claim mentioned in s80E(2)(a): see s80F(2). In other words, the only kind of claim that Mr Ward and Mr Wall may refer to the Arbitrator themselves is a claim, relevantly “in respect of the salary, range of salary or title allocated to the office occupied by a government officer” (the balance of ss80E(2)(a), and 80E(2)(b), not being applicable in the circumstances of this case). I read s80E(2)(a) such that the claim must be in respect of the salary allocated to the office occupied by those applicants, or the range of salary allocated to those offices, or the title allocated to those offices.
176 Therefore, are the claims made by Mr Ward and Mr Wall claims in respect of the salary allocated to the office occupied by them, or the range of salary allocated to those offices occupied by them, or the title allocated to those offices? The claims made are set out at AB 11-24 and AB 41 – 54.
177 The claims in paragraphs 1 to 9 set out certain matters of a factual nature. Paragraph 10 refers to schedules A and B attached to the notice of application and which are said to summarise the arrears due and owing to them on a proper interpretation of the totality of the instruments and materials governing their contracts of employment.
178 Paragraph 11 sets out the respondent’s apparent refusal to pay the applicants at an hourly rate equivalent to employees at equivalent levels who work a 75 hour fortnight whose salaries are governed by the public service general agreement 2006.
179 Paragraph 12 states that the applicants are invoking the jurisdiction of the Commission on certain bases. One of these, 12(b) states that it is applying to the Public Service Arbitrator to enquire into and deal with the industrial matters as summarised being matters which are, among other things claims in respect of the salary allocated to the offices occupied by the applicants.
180 Finally, the applications state that the applicants claim:
(a) a declaration as to the correct and equitable interpretation of the applicants’ contracts of employment concerning rates of pay
(b) an order that the respondent pay to the applicants the amounts due and owing to them in light of that correct and equitable interpretation.
(c) such further declarations or orders as the Commission thinks fit.

181 I note first, that despite paragraph 12(b) saying that they are claims “in respect of the salary allocated to the offices occupied by the applicants”, the claims actually seek a declaration regarding an interpretation of the applicants’ contracts of employment and an order that the respondent pay the applicants the amounts due and owing to them in light of that interpretation.
182 That is, they are claims with respect to the entitlements of the office holder as distinct from the remuneration of the office. Indeed, it does not appear that the salaries allocated to their offices are in any sense in dispute: the salaries set out in the statutory contracts of employment or in the award are not in dispute; it is the application of them to Mr Ward’s and Mr Wall’s circumstances that is in dispute.
183 It is the claims of the applicants as set out implicitly in paragraph 11 that the respondent has refused or declined to pay them at an hourly rate equivalent to employees at equivalent levels who work a 75 hour fortnight and whose salaries are governed by the public service general agreement 2006. That is a dispute relating to the applicants’ entitlements, not to the salary allocated to their office.
184 To put it another way, and examining schedules A and B which set out the arrears due and owing, the claims relate to any differences that result from a comparison between the salary payable for the respective hours worked under either the statutory contract of employment or the applicable award. Granting their claims would not alter or otherwise affect the salaries allocated to their offices. Rather, it appears Mr Ward and Mr Wall are seeking to have applied to them a current award or industrial agreement rate to the hours that they are respectively contracted to work, and are in fact working.
185 I accept that the words “in respect of” are words of wide meaning. I agree with the conclusion of the Acting President in Health Services Union of Western Australia (Union of Workers) v Director General of Health [2007 WAIRC 00396], (2007) 87 WAIG 737 at [50] that what is required in the context of s80E(2)(a) of the Act is a connection between the claim and the specified subject matters in a broad sense. The claims however relate to the remuneration under the award for hours worked by Mr Ward and Mr Wall, not to the salaries of their respective offices. There is no connection, even in a broad sense between the claims and the specified subject matter in s80E(2)(a).
186 I agree therefore, with respect, with the conclusion reached by the Acting President that ultimately what is being sought is the enforcement of the relevant award or agreement. The enforcement of an award or a relevant agreement is a matter which is obliged to be dealt with by an Industrial Magistrate, not a Public Service Arbitrator (and not a Commissioner exercising general jurisdiction). It appears quite obvious that the entitlements which Mr Ward and Mr Wall believe they are owed arise because they both have been working a 40 hour week, and the award concerned provides for ordinary hours only for 37.5 hours per week.
187 I therefore agree that the appeals against the orders in P1 and P2 of 2007 must succeed on the basis of appeal ground 1.
188 I do not seek to add to the comments of my colleagues in relation to the other grounds of appeal. I have read in advance the additional comments made by his Honour in his “afterword”, and by Wood C, and I indicate my agreement with them.
189 I agree with the orders proposed.


WOOD C:
190 I have had the benefit of reading the reasons for decision of the Hon Acting President and I would agree with his reasons as to the issue of jurisdiction and the orders he proposes. I do not seek to add further to that reasoning as to jurisdiction. My further reasons are restricted to the issue of the construction of s4H of the WAA. I consider that these matters should be capable of resolution between the parties without resort to further litigation.
191 I do not seek to repeat the history of the relevant legislative changes which has been covered by the Hon Acting President. The fact is that the contracts of Mr Wall and Mr Ward have survived in the form of statutory contracts with the additional legislative proviso that they not be disadvantaged by those statutory contracts in comparison to the applicable award. The wording of s4H; ss(2) and (3) make it plain that the previous workplace agreements of Mr Wall and Mr Ward continue as statutory contracts and contain the same provisions. Sub-section (6)(a) stipulates that even though the statutory contracts operate the relevant award also applies to the employment of Mr Wall and Mr Ward. Sub-section (7) stipulates that where the award applies, in conjunction with the statutory contracts, the ordinary rate of pay in the award should be used for calculations under the award. I take this to mean that rates of pay from the statutory contracts should not be transported into the award for the purposes of calculation. Sub-section (8) is then the crucial element in these applications. This provision contemplates for Mr Wall and Mr Ward a yearly pay comparison. The provision would be unnecessary if this conclusion were not so.
192 Put simply I consider that a proper construction of the legislation leads to the conclusion that Mr Ward and Mr Wall must be paid the higher sum following a calculation of their annual pay under the award and under the statutory contract. Their pay under the statutory contract is specified and needs no calculation. However, the pay they may otherwise have received under the award needs to be calculated. If their pay under the award is higher then they should be paid that amount. If their pay under the statutory contract is higher then they should be paid that amount. Each calculation is to be made without reference to the other document. The sum of each calculation is compared to determine what the payment should be. It must be the higher amount.
193 It is common ground that Mr Wall and Mr Ward have worked an average of 40 hours per week. It is trite to say that they must be paid for all hours worked. The question is how those hours worked are treated in each document. The dilemma arises in my view in that those hours are treated differently under each document. In the award hours worked in excess of 37.5 hours per week may attract overtime payments, to be worked out in accordance with the provisions of the award. It is not necessary for my purposes to deal with the actual overtime calculations as I do not consider that the Commission was capable of issuing the respective orders due to lack of jurisdiction. The respondent provided comparative calculations, including reference to overtime under the award. It seems plain from the calculations that the award provides a higher amount for the hours worked and hence as per the legislation the higher amount is to be paid. It is not relevant to transport the per hour rate of pay in the award for “ordinary” hours into the statutory contract. The documents must be treated separately for the purposes of calculation.
1