DISPUTE REGARDING RE CLASSIFICATION OF POSTION OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Civil Service Association of Western Australia (Incorporated)

APPLICANT

-v-

COMMISSONER CORRUPTION AND CRIME COMMISSION,

The Minister for Public Sector Management

RESPONDENTS

CORAM Commissioner P E ScotT

 PUBLIC SERVICE ARBITRATOR

HEARD WedneSDAY, 4 July 2007

DELIVERED THURSDAY, 20 MARCH 2008

FILE NO. PSACR 27 OF 2006

CITATION NO. 2008 WAIRC 00181

CatchWords Industrial law (WA) – Public service officer – Appointment to staff of Corruption and Crime Commission – Abolition of position – Application of Public Sector Management (Redeployment and Redundancy) Regulations – Appointment of public service officers – Appointment to the Public Service – Office, post or position – Permanency – Secondment – “Appointment for a term” – “Contract of employment that has a fixed term” – “Fixed term officer” – Termination on notice during appointment – Industrial Relations Act 1979 (WA) s 44 – Public Sector Management Act 1994 (WA) long title, s 3, Part 3 – ss 64, 65 66 – Corruption and Crime Commission Act 2003 (WA) ss 175, 179, 180, 181 – Public Sector Management (Redeployment and Redundancy) Regulations 1994 (WA)  reg 4 – Corruption and Crime Commission Agreement 2005

Result Reasons for Decision Issued

Representation 

Applicant Mr W Claydon for The Civil Service Western Australia (Incorporated)

Respondent Mr M Hemery of Counsel for the Commissioner Corruption and Crime Commission,

 Mr R Andretich of Counsel for the Minister for Public Sector Management

Reasons for Decision

1          This is a matter not resolved by conciliation which was referred for hearing and determination under section 44 of the Industrial Relations Act 1979 (“IR Act”) in the following terms:

“1. The Applicant says that:

(a) Mr Glen Ross was employed by the Corruption and Crime Commission (“the CCC”) by letter dated 22 November 2004, which included the terms of employment as Manager – Corruption Prevention, Education and Research.

(b) The letter contained the following terms of employment:

(i) Clause 3 provided that he was employed pursuant to s 179 of the Corruption and Crime Commission Act 2003 (WA) (“the CCC Act”).

(ii) Clause 4 provided that his appointment was for a term of 5 years, from 8 October 2004 to 7 October 2009.

(iii) Clause 20 provided that the contract could be terminated by one month’s notice, in writing, by either side.

(iv) Clauses 9 and 10 provided for a 9% employer superannuation contribution in addition to an annual salary of $94,768.

(v) Clause 7 provided that he was entitled to the benefits of the Government Officers Salaries and Allowances Conditions Award 1989 (WA) (“the GOSAC Award”) and the Government Officers Salaries Allowances and Conditions General Agreement 2004 (WA) (“the GOSAC General Agreement”) subject to modifications specified in the contract.

(c) Mr Ross was appointed to the CCC as a Level 9.  Prior to this appointment he held a substantive position as a Level 7 public service officer.

(d) From August 2002 to January 2004 Mr Ross was seconded to the Kennedy Royal Commission in the position of Manager, Research, Policy and Reform Unit, at Level 8.  From February 2004 to October 2004 he had various secondments to the CCC at Class 1 and Level 9.

(e) On 19 January 2006 the Corruption and Crime Commission Agreement 2005 (WA) (“the CCC Agreement”) was registered and came into force.  Clause 9 of the CCC Agreement recognised that the sole mode of employment was a contract of employment up to 5 years duration with termination by one month’s notice.

(f) By letters dated 16 and 18 January 2006 the CCC advised Mr Ross and the Civil Service Association of Western Australia Incorporated (“the CSA”), respectively, that Mr Ross’s position had been reclassified to Level 8.  Notwithstanding that decision, the CCC continued to pay Mr Ross at Level 9.

(g) On 17 January 2006 Mr Ross disputed the decision to reclassify the position, in writing.  He also raised a grievance under the CCC Agreement.  Further correspondence and meetings ensued between Mr Ross and the CCC in January 2006.

(h) By letter dated 1 September 2006 the CCC advised Mr Ross that his Level 9 position had not been reclassified to Level 8 but rather that the Level 9 position had been abolished effective from 16 January 2006.

(i) In that letter the CCC also advised Mr Ross that as he had refused to accept an alternative position at Level 8 there were no other suitable vacancies and he would be registered for redeployment pursuant to the Public Sector Management Act (Redeployment and Redundancy) Regulations 1994 (WA) (“the PSMRR”) and would be paid at Level 7.

(j) Mr Ross has been paid at Level 7.3 since 1 September 2006.

(k) The Department for Premier and Cabinet (“the DPC”) on behalf of the Minister for Public Sector Management (“the Minister”) advised Mr Ross that it did not accept his registration for redeployment as he was employed pursuant to a fixed-term contract.

(l) The DPC has also advised Mr Ross that he was entitled to return to the public sector pursuant to s 180(3) of the CCC Act and be paid as a Level 7, the level at which his position was classified prior to joining the CCC.

(m) The Applicant contends that Mr Ross’s term of employment is not a ‘fixed-term contract’ as contemplated by the PSMRR, in particular reg 4.  Part 6 of the Public Sector Management Act 1994 (WA) (“the PSM Act”) applies to the CCC and Mr Ross has the benefit of the PSM Act and the PSMRR.

(n) Accordingly, Mr Ross was entitled to be redeployed into the public service in accordance with the provisions of the PSMRR.

(o) If the PSMRR did not apply then Mr Ross is entitled to be consulted about the level to which he would return to the public service and the Minister is required to consider whether the return should be at a level higher than the minimum provided by s 180(3) of the CCC Act.

2. The Applicant seeks:

(a) An order that Mr Ross be paid salary and entitlements at Level 9 as from 1 September 2006.

(b) An order that Mr Ross be redeployed into the public service under the PSMRR.

(c) In the alternative to (a) and (b):

(i) An order that Mr Ross be consulted as to the operation of s 180(3) of the CCC Act; and

(ii) A declaration as to the principles the Minister ought to consider when exercising discretion under s 180(3) of the CCC Act.

3. The CCC says that:

(a) It accepts that Mr Ross’s term of employment was not a ‘fixed-term contract’ as contemplated by PSMRR, in particular reg 4.

(b) It accepts that the exclusion of the PSMRR in reg 4(2)(d) of the PSMRR did not apply to Mr Ross.

(c) Mr Ross:

(i) was a ‘permanent officer’ in the ‘public service’ classified at Level 7 under the PSM Act prior to his appointment by the CCC by contract dated 22 November 2004 (“the contract of employment”).

(ii) retained the status of a ‘permanent officer’ in the ‘public service’ classified at Level 7 while employed by the CCC under the contract of employment.

(d) Accordingly, on this basis also the exclusion of the PSMRR in reg 4(2)(d) of the PSMRR did not apply to Mr Ross.

(e) Mr Ross was entitled to be redeployed into the public service in accordance with the provisions of PSMRR.

(f) Mr Ross’s position with the CCC under the contract of employment was ‘abolished’ by the CCC on 16 January 2006 within the meaning of the PSMRR.

(g) Mr Ross therefore had an entitlement to be redeployed in accordance with the provisions of the PSMRR, on and from 16 January 2006.

(h) By letter dated 1 September 2006 the CCC informed Mr Ross that he had ceased to hold an office with the CCC.

(i) Upon ceasing to hold an office with the CCC, Mr Ross became entitled under s 180(3) of the CCC Act to be appointed to an office under Part 3 of the PSM Act by the Minister.  Accordingly, the CCC had no obligations in relation to any such appointment.

(j) Upon Mr Ross ceasing to hold an office with the CCC, and pending redeployment or appointment to an office by the Minister, Mr Ross remained a ‘permanent officer’ in the ‘public service’ at classification Level 7 and the obligation to meet Mr Ross’s entitlement as such was upon the Minister and not the CCC.

(k) Notwithstanding this, between 1 September 2006 and 9 March 2007 the CCC continued to meet Mr Ross’s entitlements as a ‘permanent officer’ in the ‘public service’ at classification Level 7.

(l) Mr Ross was appointed by the Minister pursuant to s 180(3) of the CCC Act to an office in the public service under the PSM Act with the classification Level 7.3 with effect from 8 March 2007.

(m) By reason of and upon Mr Ross’s appointment to an office in the public service on and from 8 March 2007, Mr Ross ceased to be entitled to redeployment under the PSMRR.

(n) The CCC neither accepts nor rejects the CSA’s alternative contentions that:

(i) Mr Ross is (or was) entitled to be consulted about the level to which he would return to the public service if s 180(3) of the CCC Act were to apply; and

(ii) the Minister would have to consider objectively Mr Ross’s Level 9 status and whether or not he could be returned to the public service at that level or a level other than the minimum requirements of s 180(3) of the CCC Act

on the grounds that any entitlement of Mr Ross under s 180(3) of the CCC Act to be appointed to an office under Part 3 of the PSM Act is an entitlement to be appointed to an office by the Minister, and the CCC has no obligations under s 180(3) of the CCC Act in relation to any such appointment.

4. In response to the relief sought by the CSA the CCC rejects that Mr Ross is entitled to be paid salary and entitlements at Level 9 as from 1 September 2006, and says further that:

(a) Regulation 23 of the PSMRR does not provide an entitlement to payment pending redeployment at the rate of pay of an office abolished, but rather specifies that rate of pay to be used for the purpose of certain provisions in the PSMRR.

(b) If (which is denied) reg 23 provides Mr Ross with an entitlement to be paid at Level 9 on and from 1 September 2006 pending redeployment:

(i) the obligation to pay was on the Minister and not on the CCC; and

(ii) any such obligation ceased upon appointment to an office in the public service by the Minister pursuant to s 180(3) of the CCC Act on and from 8 March 2007.

(c) The CCC rejects that Mr Ross is entitled to be redeployed in to the public service under the PSMRR on the ground that upon the appointment by the Minister to an office pursuant to s 180(3) of the CCC Act Mr Ross’s entitlement to redeployment ceased;

(d) The CCC neither accepts nor rejects the claim for relief sought on the grounds set out in paragraph 2(c) above.

5. The Director General of the DPC, on behalf of the Minister, rejects the Applicant’s claims and says that:

(a) Section 179 of the CCC Act only permitted Mr Ross to be appointed to the staff of the CCC ‘for a term’ not ‘exceeding 5 years’.

(b) An appointment made in accordance with s 179 of the CCC Act is employment that has a ‘fixed term’ for the purposes of the PSMRR.

(c) Mr Ross was not a ‘permanent officer’ following his appointment to the staff of the CCC and therefore the PSMRR did not apply to him as a result of the operation of reg 4(2)(d).

(d) If the PSMRR applied to Mr Ross following the abolition of his position, which is denied, they ceased to do so when he accepted employment offered to him pursuant to s 180(3) of the CCC Act.

6. The Director General of the DPC, on behalf of the Minister, does not admit the Applicant’s contentions or that Mr Ross is entitled to the relief sought on his behalf.”

2         The parties have submitted a Statement of Agreed Facts and Documents.  Many of the Agreed Facts repeat some of the facts and law asserted in the Memorandum of Matters Referred for Hearing and Determination, however, it is appropriate to set them all out. They are as follows:

“1. The applicant is the Civil Service Association of Western Australia Incorporated [“CSA’], an organisation duly registered under the Industrial Relations Act 1979.

2. The Corruption and Crime Commission is an organisation established pursuant to the Corruption and Crime Act 2003 [“CCC Act”].

3. Glenn Ross was employed by the Corruption and Crime Commission [“the first respondent”] as Manager – Corruption Prevention, Education and Research, by letter dated 22 November 2004, which included terms of employment.  A copy of that letter and his terms of employment are attached as Attachment “A”.

4. The letter contained the following terms of employment:

(i) By clause 3, he was employed pursuant to s.179 CCC Act.

(ii) By clause 4, his appointment was for a term of 5 years from 8 October 2004 to 7 October 2009.

(iii) By clause 20 the contract could be terminated by one month’s notice in writing by either side.

(iv) By clauses 9 and 10 his salary was specified as $94,768 per annum in addition to 9% employer contribution for superannuation.

(v) By clause 7 he was entitled to the benefits of the GOSAC award and General Agreement subject to modifications specified in the contract.

5. Attachment “AA” and “AB” respectively are copies of the GOSAC award and the General Agreement as they stood at the date of appointment.

6. By the letter of 22 November 2004, Mr Ross was appointed to Level 9 within the broad banding classification system operating within the WA Public Sector.

7. Prior to joining the first respondent Mr Ross held a substantive position classified as Level 7 – public service officer. Attachment “AC” is Mr Ross’s letter of appointment by the Ministry of Justice dated 18 November 1997. Attachment “AD” is Mr Ross’s Employee Commencement Advice dated 24 February 1998.

8. From 23 September 2002 to January 30 January 2004 Mr Ross was employed on secondment as Manager of the Research, Policy and Reform Unit with the Kennedy Royal Commission at Level 8. Attachment “AE” is a copy of a letter from the Kennedy Royal Commission to the Department of Justice dated 24 September 2002 confirming the secondment of Mr Ross. Attachment “AF” is a copy of a Fixed Term Contract dated 14 October 2002 signed by Mr Ross in respect of that appointment. Attachment “AG” is copy of a letter from the Kennedy Royal Commission to Mr Ross dated 5 August 2003 extending Mr Ross’s fixed term appointment to 30 November 2003. Attachment “AH” is a letter from the Kennedy Royal Commission to the Department of Justice extending Mr Ross’s secondment until 30 January 2004.

9. By letter of appointment dated 29 January 2004 Mr Ross was employed by the first respondent as Manager, Corruption Prevention, Education and Research in the Corruption Prevention, Education and Research Director, for a term from 2 February 2004 to 28 May 2004. The appointment was at Level 8, year 3 on a salary of $86,553. Attachment “AI” is the letter of appointment.

10. From 2 February 2004 to 17 May 2004, Mr Ross was appointed Acting Director, Corruption Prevention, Education and Research, and was paid a Higher Duties Allowance as a Class 1.

11. On and from 17 May 2004, the Director, Corruption Prevention, Education and Research was appointed, and Mr Ross reverted to the position of Acting Manager, Corruption Prevention, Education and Research. Mr Ross remained a Class 1 from 17 May 2004 to 17 June 2004. On and from 17 June 2004, Mr Ross was employed in this position at the classification Level 9, year 1, until he commenced employment under the contract of employment dated 22 November 2004.

12. On 19 January 2006 the Corruption and Crime Commission Industrial Agreement was registered and came into force [see PSAAG 28 of 2005; and 2006 WAIRC 03495]. A copy of this agreement is attached as Attachment “B”. The agreement included clause 9(2) which provided as follows:

Appointment

(2) Officers shall only be appointed by way of a fixed term contract of employment pursuant to Section 179 of the Corruption and Crime Commission Act 2003 for a term not exceeding five years and be eligible to be reappointed. Officers appointed shall be advised in writing of the terms of appointment and such advice shall specify the dates of commencement and termination of employment

13. By letter dated 16 January 2006 the first respondent wrote to Mr Ross in the following terms:

Following a review of the structure of the Corruption Prevention, Education and Research (CPER) Directorate, including a period of consultation, I wish to advise you that the position you occupy has been reclassified. As part of the review it has been determined to amend the classification of this new position to Level 8. The previous title of the position has been retained. A copy of the revised job description form (JDF) is attached for your information.

As per previous verbal advice, you remuneration will remain at Level 9 (the level to which you were previously appointed) during the life of the current contract. Accordingly, you will be entitled to the privileges afforded officers at that level, including access to the Government Vehicle Scheme.

The CPER Directorate will now operate within three (3) teams, each supported by a manager reporting to the Director, CPER. Your position as manager will be to continue with the activities contained within your JDF as part of this new structure, including the management of senior consultants. I encourage you to discuss your continuing role within CPER with you Director. These changes take effect immediately.

All other terms and conditions of employment remain unchanged.

 A copy of that letter is attached as Attachment “C”.

14. In accordance with that letter, the first respondent continued to pay Mr Ross at Level 9, in addition to other entitlements under his contract of employment dated 22 November 2004.

15. On 17 January 2006 Mr Ross disputed in writing the unilateral reclassification of his position from Level 9 to Level 8; in that he raised a grievance under the CCC Industrial Agreement. In January 2006 there were meetings involving the Applicant and the first respondent to discuss Mr Ross’s grievance, and correspondence followed. Copies of his grievance and other correspondence between 17 January 2006 and 17 February 2006 are attached as Attachment “D”. Attachment “DA” are copies of further correspondence regarding attempts by the first respondent to address the grievance of Mr Ross as follows:

a. letter from Commissioner Hammond to Mr Ross dated 17 February 2006;

b. letter from Commissioner Hammond to Mr Ross dated 27 February 2006;

c. letter from Commissioner Hammond to Mr Ross dated 10 March 2006;

d. file note of meeting with Mr Ross dated 15 March 2006;

e. letter from Mr Ross to Acting Commissioner Shanahan SC dated 20 March 2006;

f. letter from Acting Commissioner Shanahan SC to Mr Ross dated 27 March 2006.

16. By letter dated 18 January 2006 the first respondent confirmed to the CSA the reclassification of Mr Ross’s position from Level 9 to Level 8. A copy of this letter is attached as Attachment “E”.

17. On and from 23 March 2006 Mr Ross went on extended sick leave from the first respondent’s employment. Attachment “EA” is the following correspondence relating to Mr Ross’s return from sick leave:

(a) letter from Commissioner Hammond to Mr Ross dated 10 July 2006;

(b) letter from Mr Ross to Commissioner Hammond dated 12 July 2006;

(c) letter from Mr Ross to Commissioner Hammond dated 12 July 2006;

(d) letter from Mr Ross to Commissioner Hammond dated 21 July 2006;

(e) letter from Commissioner Hammond to Mr Ross dated 21 July 2006;

(f) letter from Mr Ross to Commissioner Hammond dated 24 July 2006;

(g) letter from Ms Grant to Mr Ross dated 26 July 2006;

(h) letter from Mr Ross to Commissioner Hammond dated 28 July 2006;

(i) letter from Ms Grant to Mr Ross dated 31 July 2006;

(j) letter from Mr Ross to Commissioner Hammond dated 2 August 2006;

(k) letter from Ms Grant to Mr Ross dated 3 August 2006;

(l) letter from Mr Ross to Commissioner Hammond dated 3 August 2006;

(m) letter from Mr Ross to Commissioner Hammond dated 4 August 2006;

(n) letter from Ms Grant to Mr Ross dated 11 August 2006;

(o) email from Mr Ross to Ms Grant dated 11 August 2006;

(p) letter from Ms Grant to Mr Ross dated 16 August 2006;

(q) letter from Mr Ross to Commissioner Hammond dated 18 August 2006;

(r) letter from Mr Ross to Commissioner Hammond dated 25 August 2006;

(s) letter from Ms Grant to Mr Ross dated 31 August 2006.

18. By letter dated 1 September 2006 the first respondent advised Mr Ross that his Level 9 position had not been reclassified to Level 8 as previously stated, but that it had been abolished effectively from 16 January 2006. A copy of this letter is attached at Attachment “F”.

19. By the same letter the first respondent advised Mr Ross that as he had refused to accept an alternative position at Level 8, there were no other suitable vacancies within the agency, and he would therefore be registered for redeployment in the public service pursuant to the Public Sector Management Act (Redeployment and Redundancy) Regulations 1994 [“PSMRR”].

20. Further that he would be paid at Level 7, rather than Level 9. Mr Ross has been paid at Level 7.3 since 1 September 2006, regardless as to which respondent was his employer.

21. By e-mail dated 4 September 2006 the Executive-Director of the first respondent advised staff of the Commission’s decision to terminate unilaterally Mr Ross’s contract. A copy of that e-mail is attached as Attachment “G”.

22. Notwithstanding the first respondent’s advice to Mr Ross that he would be registered for redeployment, the Department for Premier and Cabinet [“DPC”] on behalf of the Minster for Public Sector Management would not accept his registration for redeployment by the first respondent.

23. Mr Ross has disputed the entire decision of the first respondent to change the characterisation of his employment status, and entitlements, including the decision to pay him at Level 7.3. This disputation is evidenced by letters to the first respondent dated 9, 11 and 12 October 2006, and culminated in the applicant filing PSAC 27 of 2006. Copies of these three letters are attached as Attachment “H”. Attachment “HA” are copies of the following letters from the first respondent responding to these concerns:

(a) letter from first respondent to Mr Ross dated 11 October 2006;

(b) letter from first respondent to CSA dated 12 October 2006;

(c) letter from first respondent to Mr Ross dated 18 October 2006.

24. Attachment ‘HB’ is a copy of a letter from the Department of Premier and Cabinet and the CCC to the CSA dated 13 November 2006, setting out the terms proposed for resolution of the CSA’s grievance following a conciliation conference between the parties to PSAC 27 of 2006 on 3 November 2006. These terms were accepted by all parties.

25. DPC advised the first respondent that Mr Ross did not qualify for redeployment because he was employed pursuant to a fixed term contract.

26. By letter dated 9 October 2006 Mr Ross disputed the advice from DPC to the first respondent (sic) A copy of this letter is attached as Attachment “I”. He wrote again on or about 2 January 2007 to DPC concerning disputed matters or concerns. A copy of this letter is attached as Attachment “J”.

27. Nevertheless the DPC advised that Mr Ross was entitled to return to the public service pursuant to s. 180(3) CCC Act, and be paid at Level 7, the level which he enjoyed in the public service prior to joining the first respondent.

28. Mr Ross disputed the advice received from DPC; in particular the unilateral decision to revert him to Level 7 without negotiation or discussion.

29. During January 2007 Mr Ross advised the Minister for Public Sector Management that he wished to avail himself of the entitlement contained in s. 180(3) CCC Act. This is evidenced by the letter dated 2 January 2007 [Attachment “J”] and an e-mail conversation between Mr Ross and Mr Volaric during January 2007. A copy of this e-mail conversation is attached at Attachment “K”,

30. By letter dated 5 February 2007 the first respondent purported to resile from a proposed arrangement to settle parts of the dispute on the basis of Mr Ross’s alleged non-compliance with other arrangements. A copy of this letter, and other details, is attached as Attachment “L”.

31. By letter dated 6 February 2007 Mr Ross disputed that he failed to comply with the arrangements, and by letter dated 12 February 2007 the first respondent advised him that it would cease making payment of salary to him as from close of business on 15 February 2007. Copies of these letters are attached as Attachment “M”.

32. By letter dated 14 February 2007 the Director-General of the Department for Premier and Cabinet, on behalf of the Minister offered employment to Mr Ross in the department at Level 7.3. A copy of this letter is attached as Attachment “N”.

33. Prior to that letter Mr Ross received by letter dated 9 February 2007 from DPC a response to his letters dated 9 October 2006 and 1 February 2007, wherein DPC reiterated its previous position. A copy of this letter is attached as Attachment “O”.

34. Mr Ross accepted the offer of engagement with the DPC under protest by e-mail on 22 February, and reiterated his protest by letter dated 4 March 2007. Copies of these communications are attached as Attachment “P”.

35. The first respondent continued to pay Mr Ross up to and including 8 March 2007, after which the second respondent commenced paying Mr Ross.

36. By letter dated 12 March 2007 DPC replied to Mr Ross’s letter of 4 March 2007. A copy of this letter is attached as Attachment “Q”.

37. Mr Ross is engaged currently on work with DPC at Level 7.3.”

The Parties’ Submissions

3          It is not my intention to set out all of the arguments of the parties as most of them are covered by the Memorandum of Matters Referred for Hearing and Determination.

The Hearing

4          At the commencement of the hearing of this matter the Minister called evidence from Michael Ambrose McLaughlan, Principal Policy Officer, Redeployment, with the DPC. Mr McLaughlan has held that position or a similar position since 1984.  He gave evidence of government policy, and of the recommendation of Commissioner G L Fielding in the “Review of the Public Sector Management Act” of April 1996 to the effect that the PSMRR did not apply to employees, amongst others, whose employment ceased on the expiry of the term of their contract of employment (reg 4(2)(d)).  Commissioner Fielding recommended that:

“Regulation 4(2)(d) of the Public Sector Management (Redeployment and Redundancy) Regulations 1994 be amended to make it clear that those whose employment is liable to cease on the expiry of a fixed term contract be excluded from the operations of the Regulations.” (p 182)

5          Mr McLaughlan gave evidence of the amendment to reg 4 in accordance with that recommendation and in particular in exhibit 2.  He provided a copy of a document headed “Policy Statement December 2002 – Redeployment and Redundancy” which noted under the heading of Policy that:

“5. Casual and temporary employees are not entitled to redeployment and redundancy benefits if their employment is terminated.  Similarly, fixed term contract employees who have completed their term of engagement are not entitled to redeployment or redundancy benefits.  However, where such a contract has been terminated prematurely due to no fault of the employee, a need may arise for compensation in accordance with the terms of the contract.”

 (Exhibit 3)

6          On the basis of this material and his experience, Mr McLaughlan said that a fixed term contract is one that is for a term.  Mr McLaughlan was not cross examined. 

7          The Minister also called evidence from Daniel Volaric, Director of Workforce Management within the Public Sector Management Division.  I take this to be a division of the DPC.

8          Mr Volaric gave evidence that he engaged with Mr Ross’s representatives to formulate a process whereby Mr Ross would be returned to the public service under s 180(3) of the CCC Act, following a conference before the Commission on the 3 November 2006.  He said that it was “agreed to enter into a proposal to meet with the union, DOCEP” and the CCC to identify the “practice and mechanisms” to give effect to s 180(3).  He gave evidence of his endeavours to explore options for the resolution of this matter with the other parties. Mr Volaric said that based on past experience it would not be easy to redeploy Mr Ross at Level 9 within the public service due to the seniority of the level and the nature of such positions as those opportunities were few and far between. 

9          A letter dated the 22 March 2007 addressed to Ms Toni Walkington, Branch Secretary, CPSU/CSA (exhibit 4) was received into evidence.  This letter indicates the Applicant’s view that s 180(3) of the CCC Act provides a right of return to the public service at no lesser classification than the position previously held by the officer.

10       It is not my intention to set out all of the relevant documentation in this matter. However, the terms of the letter of offer of employment to Mr Ross by the CCC, which offer Mr Ross accepted are as follows:

“Dear Glenn Ross

OFFER OF EMPLOYMENT

I am pleased to offer you an appointment as a member of staff of the Corruption and Crime Commission on the terms and conditions set out below.

If you accept this offer of employment, most of the terms of the Government Officers Salaries, Allowances and Conditions (GOSAC) General Agreement 2004, read in conjunction with the GOSAC Award 1989 will apply, as amended from time to time, until the Commission and its members of staff make a Commission-Staff Agreement.

The GOSAC Award 1989 and the GOSAC General Agreement 2004 are registered in the Western Australian Industrial Relations Commission (WAIRC). A Commission-Staff Agreement will operate, upon registration, as an industrial agreement in the WAIRC.

If you accept the terms and conditions, please initial each page, sign the last page before an adult witness and return it to the Manager, Human Resources & Planning at the Commission.

Mike Silverstone

EXECUTIVE DIRECTOR”

11       Attached to that letter is a document headed “Terms and Conditions” which contains the following relevant provisions:

“Terms and Conditions

Employee

1. The employee is Glenn Ross

Employer

2. The employer is the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 (WA) (the CCC Act).

Employment under the CCC Act

3. The employee is employed under section 179 of the CCC Act, which provides, among other things, that:

(a) The Commission may appoint members of staff.

(b) A member of staff is not to be appointed for a term exceeding 5 years and is eligible for reappointment.

(c) The Commission may determine the remuneration and other terms and conditions of service of staff.

(d) Remuneration and other terms and conditions of employment are not to be less favourable than is provided for in an applicable award or other agreement under the Industrial Relations Act 1979 (WA) or the Minimum Conditions of Employment Act 1993 (WA).

Terms of appointment

4. The employee is appointed to the position of Manager, Corruption Prevention, Education & Research for a term of 5 years from 8 October 2004 to 7 October 2009.

(a) Nothing in the entirety of this clause is to be interpreted as imposing upon either party an obligation or entitlement to enter into negotiations for a further term of employment, an option or right to extend the period of this agreement or to enter into a new agreement.

(b) The parties may enter into negotiations to extend the duration prior to termination of the agreement.

…

Government Officers Salaries, Allowances and Conditions Award and General Agreement apply except as varied

7. The terms and conditions that apply are those in the Government Officers Salaries, Allowances and Conditions Award as amended from time to time (the GOSAC Award) and the Government Officers Salaries, Allowances and Conditions General Agreement, as amended from time to time (the GOSAC Agreement), except as varied by the terms set out below under “Variations to GOSAC terms and conditions”.

7.1 The current GOSAC Award is the GOSAC Award of 1989. The current GOSAC Agreement is the GOSAC Agreement of 2004.

7.2 The GOSAC Agreement of 2004 provides that it is to be read in conjunction with the GOSAC Award of 1989 and that where the provisions of the Award and the Agreement are inconsistent, the provisions of the Agreement shall prevail.

GOSAC Award and Agreement to be superseded by Commission–staff agreement

8. The employer proposes to negotiate with its members of staff a Commission-Staff agreement that will set out all the terms and conditions of employment for Commission members of staff. Once registered in the Western Australian Industrial Relations Commission (WAIRC), the Commission-Staff Agreement will supersede the terms in the GOSAC Award and GOSAC Agreement. The Commission-Staff Agreement will provide terms and conditions no less favourable than that provided in the GOSAC Award and GOSAC Agreement.

8.1 The employee acknowledges that when the Commission-Staff agreement is registered as an industrial agreement by the WAIRC, such agreement will extend to and bind the Employee in accordance with subsection 41(4) of the Industrial Relations Act 1979.

Salary on commencement

9. The employee’s commencing salary is $94,768 per annum plus the employer’s superannuation payments of 9% per annum to an approved superannuation fund.

Remuneration

10. Upon commencement, the Commission will remunerate the Employee in accordance with the package set out below (“the Remuneration Package”)

Salary        $94,768

Level            9.1

Employer’s compulsory contribution to superannuation   8,529

Total        103,397

Subject to satisfactory performance, increases in remuneration may occur in accordance with the relevant industrial instrument. Performance will be reviewed via an annual Performance Management System, currently being developed.

10.1 The Employee is entitled to overtime, allowances, loadings or other penalty rates.

10.2 The Employee is eligible to join the Government Vehicle Scheme (GVS), and is entitled to utilise a Commission vehicle for operational and private use, in accordance with Commission policy. The Employee shall make a fortnightly contribution as determined under the GVS, for the privilege. The current contribution payable is $93.50 per fortnight.

…

Terms of the GOSAC Award and GOSAC Agreement varied by this agreement

13. The following special terms and conditions apply to the employee’s employment with the Commission, and replace any similar terms and conditions contained within the GOSAC Award and GOSAC Agreement.

…

Termination of Agreement

20. Notwithstanding any other provision contained in this Agreement, the Employee may be summarily dismissed without notice in circumstances, including but not limited to:

(a) serious or persistent breach of any of the terms of this Agreement;

(b) disregard of lawful instructions or non-compliance with duties owed in the Employment;

 (c) dishonesty (including theft or fraud);

(d) unauthorised disclosure of information acquired by the Employee by reason of, or in the course of, the exercise of the employee’s functions under the Act;

(e) forgery or deliberate falsification of any record;

(f) serious or persistent breach of any of the Commission’s policies;

(g) absence from the business of the commission on unauthorised leave for a period of five (5) or more business days;

(h) bankruptcy.

20.1 Either the Commission or the Employee may terminate the employment by giving one-month prior notice in writing to the other party.

20.2 In the event of the termination of the Employment by the Commission pursuant to clause 20.1, the Commission may elect to pay the Employee one month’s salary in lieu of providing notice or any combination of such notice and payment in lieu of notice.

20.3 The Commission may, at its sole discretion, for all or any part of the notice period not require the Employee to carry out his duties and attend the Commission’s premises.

20.4 Nothing in this Agreement prevents the Commission from suspending the Employee on full pay pending the resolution of any matter of alleged misconduct.

Terms and Conditions accepted

(signed)

Glenn Ross

22 November 2004”

 (Attachment A to Statement of Agreed Facts and Documents)

The Statutory Scheme – The Public Sector Management Act 1994

12       The PSM Act is, according to its long title, “An Act to provide for the administration of the Public Sector of Western Australia and the management of the Public Service and of other public sector employment…” amongst other things.  A “public service officer” is defined in s 3 as “executive officer, permanent officer or term officer employed in the Public Service under Part 3.”  Section 3 also defines a “permanent officer” as “person appointed under section 64(1)(a) for an indefinite period”.  (Section 64 falls within Part 3 – Public Service of the PSM Act.)  Section 3 also defines an “organisation” as “non-SES organisation or SES organisation.” 

13       Division 3 – Public service officer other than executive officers of Part 3 – Public Service deals with the appointment of public service officers other than executive officers (s64); the transfer of those officers within and between departments and organisation (s 65); their secondment (s 66), and the vacation of offices of public service officers (s 67).  Those sections provide as follows:

64. Appointment of public service officers other than executive officers

(1) Subject to this section and to any binding award, order or industrial agreement under the Industrial Relations Act 1979 or employer‑employee agreement under Part VID of the Industrial Relations Act 1979, the employing authority of a department or organisation may in accordance with approved procedures appoint for and on behalf of the Crown a person as a public service officer (otherwise than as an executive officer) on a full‑time or part‑time basis — 

(a) for an indefinite period as a permanent officer; or

(b) for such term not exceeding 5 years as is specified in the instrument of his or her appointment.

(2) An appointment under subsection (1) shall be to such level of classification and remuneration as is determined by the relevant employing authority — 

(a) in accordance with approved procedures; and

(b) as being appropriate to the functions to be performed by the person so appointed.

(3) The employing authority of a department or organisation shall — 

(a) in accordance with approved procedures; and

(b) at the time of the appointment of a person under subsection (1) or, if that employing authority considers it impracticable to make the appointment concerned at that time, at a later time,

 appoint the person to fill a vacancy in an office, post or position in the department or organisation.

(4) Subject to subsection (5), a person appointed under subsection (1)(b) cannot apply for an appointment under subsection (1)(a) unless the relevant vacancy has first been advertised in public service notices or in a daily newspaper circulating throughout the State.

(5) Subsection (4) does not apply to a person — 

(a) appointed under subsection (1)(b); and

(b) having, or occupying an office, post or position having, the lowest level of classification at which persons of the same prescribed class as that person are at the relevant time recruited into the Public Service.

(6) The employing authority of an organisation shall not make an appointment under subsection (1) unless the written law under which the organisation is established or continued authorises or requires the appointment or employment of public service officers for the purposes of that organisation.

(7) Nothing in this section prevents a public service officer who holds an office, post or position in one department or organisation from being appointed, whether by way of promotion or otherwise, to an office, post or position in another department or organisation.

65. Transfer of public service officers other than executive officers within and between departments and organisations

(1) If an employing authority considers it to be in the interests of its department or organisation to do so, that employing authority may transfer at the same level of classification a public service officer other than an executive officer from one office, post or position in that department or organisation to another such office, post or position — 

(a) for which that public service officer possesses the requisite qualifications; and

(b) the functions assigned to which are appropriate to that level of classification.

(2) If an employing authority of a department or organisation considers it to be in the interests of the Public Service to do so, that employing authority may, with the approval of the employing authority of another department or organisation and after consulting the public service officer concerned, transfer at the same level of classification a public service officer (other than an executive officer) from an office, post or position in the first‑mentioned department or organisation to an office, post or position in the other department or organisation — 

(a) for which latter office, post or position that public service officer possesses the requisite qualifications; and

(b) the functions assigned to which latter office, post or position are appropriate to that level of classification.

(3) On the transfer of a public service officer under subsection (2), the employing authority of the department or organisation to which that transfer takes place — 

(a) becomes the employing authority of the public service officer; and

(b) is substituted for the employing authority of the department or organisation from which that transfer takes place as a party to any contract of employment of the public service officer.

66. Secondment of public service officers other than executive officers from departments or organisations

 An employing authority of a department or organisation (in this section referred to as “the seconding authority”) may, if it considers it to be in the public interest to do so and the public service officer concerned consents, enter into an arrangement in writing with another such employing authority or with an employer outside the Public Sector for the secondment of a public service officer (other than an executive officer) in the department or organisation of the seconding authority to perform functions or services for, or duties in the service of, the other department or organisation or that employer during such period as is specified in that arrangement.

67. Vacation of office of public service officer other than executive officer

 The office of a public service officer (other than an executive officer) becomes vacant if — 

(a) that public service officer dies;

(b) in the case of a term officer, the term officer completes a term of office and is not reappointed;

(c) that public service officer is dismissed, or retires from office, under this Act;

(d) the employment of that public service officer in the Public Sector is terminated under section 79(3);

(e) that public service officer resigns his or her office in writing addressed to his or her employing authority and that employing authority accepts that resignation; or

(f) that public service officer is appointed or transferred under this Part to another office, post or position.

14       Therefore, according to s 64, the following applies:

1. An employing authority of a department or organisation may, on behalf of the Crown appoint a person as a public service officer;

2. That appointment is subject to binding awards and/or agreements under the IR Act;

3. Appointment is to be according to approved procedures;

4. Appointment may be for an indefinite period as a permanent officer – ie a permanent officer is appointed without any expiration date specified.

5. Alternatively to 4. above, appointment may be “for such term not exceeding 5 years as is specified in the instrument of his or her appointment.”

6. Appointment is to a level of classification and remuneration.  The classification and level of remuneration are to be in accordance with approved procedures and appropriate to the function to be performed by the person.

7. According to approved procedures and at the time of appointment or at a later time, appointment is made to a vacant office, post or position in a department or organisation.

In summary, there is the appointment:

1. for an indefinite period (permanent officer), or for a term not exceeding 5 years;

2. to a level;

3. to a vacant office, post or position.

15       Section 65 provides for transfer of public service officers from one office, post or position to another within the organisation or department or to another department or organisation.

16       Section 66 provides for the secondment of public service officers to another employing authority or to an employer outside the Public Sector for a specified period with the consent of the officer.

17       Section 67 provides that the office of a public service officer becomes vacant in a range of specified circumstances, those relevant here include:

(a) the completion of the specified term of a term appointment and there being no reappointment;

(b) dismissal;

(c) resignation in writing which is accepted by the employing authority;

(d) appointment or transfer under Part 3 to another office, post or position.

Mr Ross’s Status Prior to CCC.

18       The evidence and the agreed facts make clear that Mr Ross was appointed as a permanent public service officer on 15 December 1997, by the Ministry of Justice to the position of Manager – Forensic Case Management Team, Level 7, year 3, Casuarina Prison, Offender Management.

19       He was seconded to the Royal Commission into Whether There Has Been Any Corrupt or Criminal Conduct by Western Australian Police Officers (the Royal Commission).  This secondment commenced on 23 September 2002 and was to end on 31 August 2003.  It is clear from Exhibit 5, Attachment “AE”, that this was in fact a secondment from the Department of Justice.  According to the letter of secondment, Mr Ross would continue to be paid by the Department of Justice which would recoup its expenses from the Royal Commission.  As part of this secondment, Mr Ross entered into what was described as a “Fixed Term Contract” with the Royal Commission for the period specified in the letter of secondment.  This “Fixed Term Contract” says that it is in accordance with s 29 of the PSM Act.  Section 29 of the PSM Act sets out the function of chief executive officers and chief employees, including responsibility for recruitment, selection, appointment and redeployment of employees.  It seems then, that reference to s 29 is in respect of the chief executive officer’s responsibility for staff, rather than anything specifically related to Mr Ross.

20       The “Fixed Term Contract” was extended until 30 November 2003 (Exhibit 5, Attachment “AG”).

21       The agreed documents also contain reference to a “further extension of the secondment until the 30 January 2004” (Exhibit 5, Attachment “AH”).  This was arranged between the Royal Commission and the Department of Justice.

22       Having examined the PSM Act and the correspondence arranging for Mr Ross to “work for” the Royal Commission, I conclude that this was by way of a secondment for the original term plus two extensions.  Reference to a “Fixed Term Contract” is to be read in the context of the secondment arranged between the Royal Commission and the Department of Justice.  It was not a stand alone contract of employment.  Rather it set out the terms under which Mr Ross would work for the Royal Commission while seconded to it.  During the secondment, he remained a public service officer. At the end of the term of the secondment, and its extensions, he was still a permanent officer of the Department of Justice, appointed to Level 7 holding the position which he held immediately prior to his secondment.  That is the effect of a secondment.  The officer does not lose their status as a permanent officer appointed for an indefinite term.  Their employer remains the originating organisation which continues to pay salary and other entitlements.  These expenses are recouped from the other organisation.

The Statutory Scheme – The CCC Act

23       Section 178 provides that the CCC is not on SES organisation under the PSM Act.  The CCC may obtain the services of persons through a range of mechanisms.  Section 179.  Staff of the Commission provides that the CCC may appoint a member of staff for a term not exceeding 5 years.  Such staff are not employed under Part 3 of the PSM Act.  It may also second staff from the Public Service, a State agency or otherwise in the service of the State (s 181(1)).  It may also second from other State, Territory or Commonwealth employment (s 181(2)).  It may also engage “suitably qualified persons to provide … services, information or advice” (s 182).

24       Section 179 also provides that the CCC has the power to determine remuneration and other terms and conditions of staff provided they are not less favourable than those in an applicable award, order, agreement or the Minimum Conditions of Employment Act 1993.

25       Section 180 deals with Entitlements of public service officers in the following terms:

“(1) If a public service officer is appointed to the staff of the Commission under section 179, that person is entitled to retain all his or her accruing and existing rights, including any rights under the Superannuation and Family Benefits Act 1938, as if service as an officer of the Commission were a continuation of service as a public service officer.

(2)  If a person ceases to be an officer of the Commission and becomes a public service officer the service as an officer of the Commission is to be regarded as service in the Public Service for the purpose of determining that person's rights as a public service officer and, if applicable, for the purposes of the Superannuation and Family Benefits Act 1938.

(3)  If 

(a) an officer of the Commission was immediately before his or her appointment under section 179 a permanent officer under Part 3 of the Public Sector Management Act 1994; and

(b) that person ceases to be an officer of the Commission for a reason other than dismissal for substandard performance, breach of discipline or misconduct,

that person is entitled to be appointed to an office under Part 3 of the Public Sector Management Act 1994 of at least the equivalent level of classification as the office that person occupied immediately prior to appointment under section 179.”

26       An examination of these provisions demonstrates that:

1. Members of staff are to be appointed for a term not exceeding 5 years.

2. Part 3 of the PSM Act does not apply.  Therefore ss 64 to 67 dealing respectively with the appointment of a public service officer for indefinite periods (permanent officers) or terms not exceeding five years; appointment to a level, and to an office, post or position; transfer within and between departments and organisations; secondments from departments and organisations, and vacation of office, do not apply to a person appointed as a member of the staff of the CCC.

3. The CCC may determine the salaries and conditions of its staff subject to certain minima.

27       Therefore, an officer of the staff of the CCC is not a public service officer.  This is confirmed by s 180(1) which says that if a public service officer is appointed to the staff of the CCC under s 179, that person retains all accruing and existing rights, as if service as an officer of the CCC were a continuation of service as a public service officer.  The words “as if” indicate that, in fact, service with the CCC is not service as a public service officer.  However all accruing and existing rights are retained.  What are those rights? One such right is specified.  It is a right under the Superannuation and Family Benefits Act 1938.  One could reasonably assume that it means that any accrued entitlements arising from length of service, such as long service leave are retained.  Whether it means more than that was not argued before me.

28       Subsection (2) deals with a person who ceases to be an officer of the CCC and becomes a public service officer.  Their service as an officer of the CCC counts for particular purposes.

29       Subsection (3) provides that if a person ceases to be an officer of the CCC and was a permanent officer under Part 3 of the PSM Act they are entitled to be appointed to an office under Part 3 of the PSM Act of at least equivalent classification level to the office they occupied immediately prior to appointment to the staff of the CCC, if they have not been dismissed from the staff of CCC due to substandard performance or conduct.  The reference to “was”, being the past tense, confirms that the public service officer does not continue to be such during appointment to the CCC staff. 

30       Had the legislature intended that public service officers could take up appointments with the CCC and retain their status as permanent public service officers it could easily have so provided.  Rather, it has provided:

1. that the staff of the CCC are not appointed under Part 3 of the PMS Act (ie not to the Public Service);

2. refers to service with the CCC counting as if it were service as a public service officer;

3. for a person who was appointed to the staff of the CCC who becomes a public service officer after ceasing that appointment is to have that service regarded as service in the Public Service;

4. that a person who was a public service officer immediately before being appointed to the staff of the CCC is entitled to appointment to a position in the Public Service on cessation of that appointment.

It was not argued before me, so I draw no conclusion regarding it, however, support for the exclusion of staff of the CCC from status as public service officers may be found in the capacity of the CCC to determine salaries and conditions for staff above those applying to public service officers (s 179 CCC Act).

31       So public service officers can be appointed to the staff of the CCC.  They retain their existing rights as if service as an officer of the CCC were a continuation of service as a public service officer.  If they cease to be an officer of the CCC and have not been dismissed from the staff of the CCC for specified reasons, they are entitled to be appointed to at least an equivalent classification level of office to that which they occupied prior to their appointment to the staff of the CCC.

32       Applying this legislative scheme to Mr Ross’s circumstances as set out in the agreed facts and documents, I conclude that while he was an officer of the staff of the CCC, Mr Ross was not a public service officer, but retained his accruing and existing rights.  His service is treated as if it were continuous. 

33       When Mr Ross ceased to be an officer of the CCC for any reason other than those specified, provided that he was a permanent officer immediately before his appointment to the CCC, Mr Ross was entitled to be appointed to an office under Part 3 of the PSM Act of at least the same classification level as the office he occupied immediately before his appointment to the CCC.  Mr Ross was a permanent officer immediately before his appointment to the CCC.  He ceased to be an officer of the CCC for a reason other than those specified.  Therefore he was entitled to be appointed to an office under Part 3 of the PSM Act of at least the equivalent level of classification of the office he held immediately prior to appointment as an officer of the CCC.  The office he held, according to the agreed facts, was that to which he was appointed as a permanent officer, not the office to which he was seconded.

34       I raised with parties during the course of the hearing whether in fact Mr Ross was still appointed to that office, post or position he held as a permanent officer of the Department of Justice as there was no evidence before the Commission that he had resigned, retired, been dismissed or terminated from the public service and he was not appointed or transferred to another office, post or position under Part 3 of the PSM Act.  None of them was able to answer that question. 

35       According to s 67 of the PSM Act, an office would become vacant in specified circumstances.  If none of those circumstances applied to Mr Ross, he would still be appointed to that office within the Department of Justice.  If that were so, one would expect his engagement by the CCC would be secondment, (s 181 CCC Act) not an appointment for 5 years (s 179 CCC Act).

36       The office of a public service officer becomes vacant in a range of circumstances set out in s 67 of the PSM Act.  None of them includes appointment to the staff of the CCC.  However, for the officer to retain that position would be consistent with secondment rather than appointment to the CCC.  Merely because an officer does not resign his position does not mean that he retains it.  It is highly unlikely that an officer would retain his or her position if he or she takes up employment elsewhere but does not formally resign.

37       Secondment, described earlier, is that arrangement which maintains the relationship between the employing authority and the officer, the officer being substantively appointed to a position (to which position he is entitled to return) while he performs work for another organisation. 

38       A public service officer may be seconded “to assist” the CCC (s 181).  The reference within the CCC Act to appointment is quite distinct from that in respect of secondment, the former being “appoint(ed as) members of staff” and the latter, “seconded or otherwise engaged to assist the” CCC (s 181(1)).

39       Mr Ross was appointed “as a member of staff” of the CCC (Exhibit 5, Attachment “A”).  The appointment was “under section 179 of the CCC Act” (Exhibit 5, Attachment “A” – Terms and Conditions, cl 3).  The appointment was not a secondment.

40       This confirms that Mr Ross was appointed as an officer of the staff of the CCC, and during that appointment, he was not appointed under Part 3 of the PSM Act.  Therefore he was not a permanent public service officer during that appointment.

41       In the circumstances, it is most likely that Mr Ross’s appointment to the staff of the CCC in some other way caused the vacancy of his permanent position as a public service officer within the Department of Justice.  He had no position to return to.  If he retained permanent officer status and the position he had occupied at the Department of Justice remained his, at the end of his appointment with the CCC, his right to return to a position of at least equivalent level as that of the position as provided for by s 180(3) of the CCC Act would be unnecessary. Alternatively, he still holds that position and is entitled to return to it.  As noted above, I think this is highly unlikely.

Is Mr Ross Eligible for Redeployment?

42       Section 180(3) of the CCC Act is designed to provide for an officer who was immediately prior to his appointment to the staff of the CCC, a permanent public service officer who ceases to be an officer of the CCC for “a reason” (ie any reason) other than substandard performance, breach of discipline or misconduct, to be entitled to be appointed to an office of at least the equivalent level of classification to that he held in his permanent appointment.  Therefore, the PSMRR do not come into play.  When the provisions of the CCC Act, under which Mr Ross was appointed, have done their work, he is no longer in a situation which enlivens the PSMRR.

43       However, if that were not so, and if Mr Ross were not able to return to the position he held within the Department of Justice, Mr Ross’s eligibility for redeployment would need to be considered under the PSMRR.  The PSMRR apply, according to reg 4, “to and in relation to all employees in departments or organisations and to all employing authorities of departments or organisations”.  Subregulation (2) sets out various categories of employees who are not eligible for redeployment or voluntary severance under those regulations.  An employee “who is employed under a contract of employment that has a fixed term and who is not a permanent officer” is one such category.

44       As concluded earlier in these Reasons, Mr Ross was not a permanent officer while engaged by the CCC.  Was he “employed under a contract of employment that has a fixed term”? “Fixed term” is not defined. 

45       In respect of public service officers, there is no reference to “fixed term”, however there is a definition in s 3 of the PSM Act of “term officer” being “person appointed under s 64(1)(b) for a term not exceeding 5 years”.  There are only two types of appointments:

1. for an indefinite period as a permanent officer; and

2. for such term not exceeding 5 years as is specified in the instrument of his or her appointment ( s 64, Part 3 PSM Act).

46       However while an officer of the CCC, Mr Ross was not appointed under Part 3 of the PSM Act (see s 179(3) CCC Act).

47       Mr Ross’s letter of appointment said that he was appointed “for a term of 5 years” with a commencement date and an end date. However, the employment could be terminated by giving one month’s notice in writing (exhibit 5, attachment “A”, clause 20.1).  There is an inconsistency in having an appointment for “a term of 5 years” and being subject to a month’s notice.  However that is what Mr Ross and the CCC agreed to, as did the Civil Service Association and the CCC in the CCC Agreement registered on 19 January 2006.  Therefore authorities which exclude the prospect of early termination on notice from a so-called fixed term contract are of little assistance.  This is employment governed by statute.

48       The Terms and Conditions attached to the Offer of Employment letter (Exhibit 5, Attachment “A”) records that the terms of GOSAC Award, as amended by the GOSAC Agreement, “except as varied by the term set out below under “Variations to GOSAC terms and conditions”” applied. It also provided that:

“8. The employer proposes to negotiate with its members of staff a Commission-Staff agreement that will set out all the terms and conditions of employment for Commission members of staff.  Once registered in the Western Australian Industrial Relations Commission (WAIRC), the Commission-Staff Agreement will supersede the terms in the GOSAC Award and GOSAC Agreement.  The Commission-Staff Agreement will provide terms and conditions no less favourable than that provided in the GOSAC Award and GOSAC Agreement.

8.1 The employee acknowledges that when the Commission-Staff agreement is registered as an industrial agreement by the WAIRC, such agreement will extend to and bind the Employee in accordance with subsection 41(4) of the Industrial Relations Act 1979.”

49       Such an agreement was reached and was registered by the Public Service Arbitrator on 19 January 2006 (The Corruption and Crime Commission Agreement 2005) (Exhibit 5, Attachment A1).  That agreement provided at clause 7 – Definitions, the definition of “fixed term officer” as follows:

“(1) “fixed term officer” means an officer who is employed on a full time or part time basis on a contract of service of specified duration not exceeding five years.”

50       Clause 9 – Contract of Service provides at subclause (2):

“(2) Officers shall only be appointed by way of a fixed term contract of employment pursuant to Section 179 of the Corruption and Crime Act 2003 for a term not exceeding five years and be eligible to be reappointed.  Officers appointed shall be advised in writing of the terms of the appointment and such advice shall specify the dates of commencement and termination of employment.”

51       Subclause (7) provides that:

“The Commission may terminate employment by providing one months prior notice in writing to the officer or by paying one months salary in lieu of notice”. 

 These provisions are consistent with the CCC Act.

52       Clause 55. – Redeployment & Severance provides as follows:

“(1) Where a position is abolished the Commission will wherever possible redeploy the employee to a suitable alternative position at an equivalent salary level to the abolished position. The Commission will give consideration to the employees’ skills, training, experience and/or ability to acquire new skills when assessing a suitable alternative position.

(2) The parties intend to finalise the terms for redeployment and severance entitlements under this Agreement within 3 months of the registration of this Agreement and incorporate it into the Agreement by variation.”

53       It is noted that the CCC purported to “reclassify the position” Mr Ross occupied by letter dated 16 January 2006, which is before the date of registration of the CCC Agreement on 19 January 2006. 

54       In any event, it seems that the terms “term office” used in the PSM Act; “contract of employment that has a fixed term” used in the PSMRR at reg 4; “appointed for a term” used in s 179 CCC Act; “fixed term officer” used in clause 7 – Definitions and “fixed term contract of employment” used in clause 9 – Contract of Employment of the CCC Agreement and “for a term of 5 years” used in Mr Ross’s Terms and Conditions of employment have the same meaning, ie, a specified term with a commencement and termination date.  Nowhere else within the PSM Act, PSMRR, the CCC Act, or the CCC Agreement is there reference to a type of employment arrangement (other than indefinite) which may meet the description of “a contract of employment that has a fixed term”.  In those circumstances, it does not matter that there was provision for termination on notice during the “term” of the contract.  Accordingly, I find that reference to “contract of employment that has a fixed term” used in the PSMRR reg (4) encompasses “appointment for a term” under s 179 of the CCC Act, and “for a term of 5 years” used in Mr Ross’s Terms and Conditions of employment.

55       Mr Ross’s appointment with the CCC was not indefinite.  To be otherwise would have been contrary to the legislation.

56       Accordingly, if the PSMRR applied to the CCC, Mr Ross not would have been eligible for redeployment or voluntary severance under those regulations on the basis that he was employed under a contract of employment that had a fixed term and he was not then a permanent officer.

57       On the basis that Mr Ross was not, during his appointment to the staff of the CCC, a permanent public service officer employed under Part 3 of the PSM Act, and was employed under a contract of employment that had a fixed term, he was not entitled to redeployment into the public service in accordance with the provisions of the PSMRR.

Mr Ross’s Appointment Under s180 CCC Act

58       The Applicant says that as an alternative, Mr Ross ought to have been consulted as to the operation of s 180(3) of the CCC Act and seeks a declaration as to the principles the Minister ought to consider when exercising discretion under s 180(3) of that Act.

59       The CCC was mistaken as to what it was actually doing when it abolished the position Mr Ross occupied.  In any event, the effect of what it did in purporting to reclassify the position, to redeploy Mr Ross to what was effectively a new position, and maintain Mr Ross’s salary at Level 9, was consistent with the provision of clause 55 – Redeployment and Severance subcl (1) of the CCC Agreement.  Nonetheless, the process applied by the CCC in “declassifying” the position appears to have left a lot to be desired.

60       From February 2006, the CCC and Mr Ross attempted to negotiate a satisfactory resolution to the issue, including a range of options.

61       According to the email from Mr Ross to Vanessa Grant of 11 August 2006, Mr Ross performed the duties of the new Level 8 position for a short time.  He clearly did so under protest, while maintaining his views as to his contracted right to the Level 9 position of Manager CPER.  For many months the CCC and Mr Ross continued to be in dispute as to the contractual, organisational and process issues associated with the reorganisation and consequential position abolition.  Mr Ross was not redeployed within the CCC.  However, until 1 September 2006, the CCC continued to pay Mr Ross at Level 9 salary.

62       On 1 September 2006, the CCC advised Mr Ross that it viewed his appointment to its staff as effectively terminated as the position he had held no longer existed.  Accordingly, his appointment was to terminate “under section 179(1) of the Corruption & Crime Commission Act 2003 (CCC Act) in the Level 9 position on the grounds of redundancy” (Exhibit 5, Attachment “F”).  The CCC characterised the termination, without notice as it was, as a repudiation of the contract.  While it continued in dispute with Mr Ross, and while it attempted to resolve the issue of his redeployment eligibility under the PSMRR with the DPC, the CCC continued to pay Mr Ross albeit at Level 7.3, his previous substantive level.

63       In March 2007, Mr Ross again became a public service officer, this time within the DPC, pursuant to s 180(3) of the CCC Act.  Mr Ross accepted this arrangement.  His email to Mr Volaric of 22 February 2007 says that he did so under duress.

64       Section 180(3) of the CCC Act provides that Mr Ross is entitled to be appointed to a position under Part 3 of the PSM Act of at least equivalent level to that of the position Mr Ross occupied prior to his employment with the CCC.  In this case, that means no less than Level 7.3.  Whether it ought to be a higher level than that is a matter for consideration of a range of issues.  Although those issues have not been canvassed before me, it would be reasonable to assume that they should include an objective assessment of:

1. The availability of positions at the equivalent level and above;

2. The nature of those positions;

3. The experience, skills and qualifications required for those positions and the experience, skills and qualifications of the officer concerned.

65       One would expect that the officers concerned would either be invited, or would take the initiative, to state a case to the organisation which was to appoint them as to the appropriate level of position to which they ought to be appointed. 

66       It may be that the officers are appointed to the CCC at the same level as the position they previously substantively held.  The officers may or may not have developed and utilised higher level skills, experience and qualifications in the time of appointment to the CCC.  If the work and experience were at the same level as previously, there may be no call or justification to appoint to other than the same level as the previous substantively held position.

67       On the other hand, the appointment to the CCC may have been at a higher level than the previously held substantive position.  What should happen if there are no positions available which utilise or require the special skills or experience the officer gained or utilised in the appointment to the CCC?  For example, if the appointment to the CCC involved the officer developing skills and experience at a much higher level than before, but there are no positions at all or no positions available, which match those particular higher level skills and experience.  One would not expect the officer to be appointed to a position at the higher level without being skilled or experienced in the areas required by that position.

68       Given the circumstances under which Mr Ross accepted appointment to the DPC following over a year of unsuccessful negotiations with the CCC, and given that Mr Ross accepted the appointment, to use the words of the email of 22 February 2007, “under duress” (Exhibit 5, Attachment “P”), it would hardly be surprising if negotiations as to the position for him to be appointed to were unsatisfactory to him.

69       As these matters have not been fully canvassed before me, I am unable to come to any final conclusions about the principles to be applied under s 180(3) of the CCC Act without inviting further submissions from the parties.  The parties may consider that the issues canvassed in paras (64) to (67) are sufficient for their purposes.  If, however, they wish to have the matter addressed further, then they should advise within 14 days.