DISPUTE REGARDING RECLASSIFICATION OF POSITION OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Civil Service Association of Western Australia (Incorporated)

APPLICANT

-v-

The Minister for Public Sector Management, Commissioner Corruption and Crime Commission

RESPONDENTS

CORAM PUBLIC SERVICE ARBITRATOr

 COMMISSIONER P E Scott

DATE Wednesday, 4 june 2008

FILE NO. PSACR 27 OF 2006

CITATION NO. 2008 WAIRC 00339

Catchwords Industrial Law (WA) – Public service officer – Appointment to staff of Corruption and Crime Commission – Level of appointment to the Public Service after appointment with Corruption and Crime Commission terminated – Principles to be considered under the Corruption and Crime Act 2003 – Industrial Relations Act 1979 (WA) ss 44, 80E – Corruption and Crime Commission Act 2003 s 180 – Public Sector Management Act 1994 – Public Sector Management (Redeployment and Redundancy) Regulations 1994

Result Orders issued

Representation (By Written Submissions)

Applicant Mr W Claydon for the Civil Service Association of Western Australia Incorporated

Respondent Mr M Hemery (of counsel) for the Commissioner of The Corruption and Crime Commission,

 Mr R Andretich (of counsel) for the Minister for Public Sector Management

Supplementary Reasons for Decision

1          On Thursday 20 March 2008 Reasons for Decision were issued in this matter, however the parties were invited to make further submissions in respect of one aspect.  The Memorandum of Matters Referred for Hearing Determination Under Section 44, issued on 21 June 2007, contains a schedule which sets out the positions of the respective parties and clause 2 notes the remedies sought by the applicant.  By clause 2(c)(ii) the applicant sought “(a) declaration as to the principles the Minister ought to consider when exercising discretion under s 180(3) of the CCC Act”.

2          The Reasons noted at [64] onwards:

“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.”

3          The parties agreed to a process for the making of further submissions.  This included that the applicant lodged further submissions on 15 April 2008.  In those submissions the applicant addressed in considerable detail the approach it believes is appropriate under s 180(3) of the Corruption and Crime Commission Act (the CCC Act), examining parliamentary intent and looking at an objective test to be applied to the consideration of the level at which an officer could return to the public service.  The applicant also made reference to the arrangements in the public service in respect of the Public Sector Management (Redeployment and Redundancy) Regulations 1994 (PSM R & R Regulations) as they relate to the rate of pay applicable and identifying suitable alternative positions for redeployees in those circumstances.  It also referred to the principles of equity which says it requires consideration including whether the officer went to the Corruption and Crime Commission (the CCC) on promotion or was subsequently promoted following “the transfer”; whether the selection was undertaken in accordance with the Standards of Recruitment Selection and Appointment; whether the return to the public service was at the initiative of the employee or the employer and the incremental steps applicable to the classification level.  The applicant also addressed issues of administrative convenience referred to in the evidence of Mr Volaric of the Department of Premier and Cabinet as to the ease with which redeployment at Level 9 may take place.

4          The applicant also said that there is a lack of clarity in s 180(3) and attempted to give some clarity to it.  Finally, the applicant referred to the review of the CCC Act recently undertaken by Gail Archer SC (the Archer Review) including the recommendation “…that the Act be amended to ensure that staff return to the public sector at the level they reached in the CCC” (Recommendation 11).

5          The second respondent filed a submission dated 28 April 2008 (filed on 29 April 2008) which, in essence, said that it is not possible to proceed beyond the general considerations raised in the Reasons for Decision at [64] to [67] because each case requires consideration on its own merits.  It says the right of return provisions contained within the Public Sector Management Act 1994 (“the PSM Act”) are irrelevant because of the particular appointment arrangements for staff of the CCC.

6          As to the Archer Review, the second respondent said that this has not been accepted by government and that Recommendation 11 in particular has not been accepted.  The second respondent said that the appointment pursuant to s 180(3) of the CCC Act requires an exercise of discretion taking account of best matching the qualifications and experience of the officer with positions which are available but to be not less than the officer enjoyed prior to appointment to the staff at the CCC.

7          The first respondent’s submission of 2 May 2008 said that the issue of the right of return was not a matter for it and therefore it is not appropriate to comment.  However, the first respondent raised the issue of the gap between the end of Mr Ross’s appointment with the CCC and the commencement of the appointment he took up with the Department of Premier and Cabinet and said that that matter requires resolution.  The CCC put forward a proposed order as to the level at which Mr Ross would receive entitlements until his appointment with the Department of Premier and Cabinet.

8          On 5 May 2008, the second respondent wrote to the Public Service Arbitrator (the Arbitrator) seeking clarification of the issue to be addressed by the parties in their submissions on the basis that it claimed that submissions had not been invited on the issue raised by the first respondent.  Following correspondence from the applicant and the first respondent the Arbitrator’s Associate then wrote to the second respondent, providing a copy to the other parties. The substantive part of that letter reads as follows:

“Paragraphs 64 to 69 of the Reasons for Decision deal with the issue of the principles to be applied to the question of the level at which appointment is to be made under s 180(3) of the Corruption and Crime Commission Act 2003 (WA), where the officer is to be appointed to a position under Part 3 of the Public Sector Management Act 1994.  The issue which the second respondent has raised in its Further Submission of 2 May 2008 relates to the gap between Mr Ross’ cessation of his office with the Corruption and Crime Commission and his appointment by the Department of Premier and Cabinet.

The Public Service Arbitrator is of the view that the issue raised by the Corruption and Crime Commission is not one which was dealt with by the Reasons for Decision in such a way as to invite submissions in regard to that point.  The issue for submission was set out in paragraphs 64 to 69 as being the principles to be considered by the Minister in appointing to an office under Part 3 of the Public Sector Management Act 1994.”

9          On 16 May 2008 the applicant filed a submission in response as provided for in the process agreed between the parties for the filing of further submissions.  The applicant again referred to the PSM R & R Regulations as providing a benchmark for considering Mr Ross’s case.  The applicant raised the issue of who would determine which position would match the qualifications of the displaced officer, and other questions associated with assessment and appointment process.  The applicant queried whether, in the absence of the application of the PSM R & R Regulations, there is any mechanism to resolve such issues.

Consideration and Conclusions

10       The issue upon which submissions were invited, which was the issue about which the applicant sought a declaration, was principles related to the Minister for Public Sector Management exercising discretion under s 180(3) of the CCC Act.  That matter relates to the level at which an officer is to be appointed to the public service after his appointment with the CCC has terminated.  That is the issue upon which I intend to deal with the further submissions.  The issue which the second respondent now raises has not previously been raised and does not constitute a matter which was previously before me.

11       The issues which I raised in [64] to [67] of the Reasons of 20 March 2008 are those which deal with the issue raised by the applicant in clause 2(c)(ii) of the matter referred for determination, being the principles the Minister ought to consider when exercising discretion under s 180(3) of the CCC Act.  The applicant’s submission raises some additional considerations which it says ought to be included.

12       As noted by the applicant, the CCC was established in such a manner as to provide it with the capacity to engage staff separately from, and independent of, the public service.  It has chosen to use certain aspects of public sector employment arrangements.  However, the two systems may not always merge.  To require that all staff return to the public service at the same level they reached in the CCC, as recommended by the Archer Review, without consideration of other issues, ignores the uniqueness of the CCC and its role and functions.  This affects the nature of the work of its officers and the skills, experience and qualifications required of them and the skills, experience and the qualifications they gain during their employment with the CCC.  Those skills, experience and qualifications gained at the CCC may not be transferable to many or any positions, or available positions, within the public service.  It also ignores the need to maintain the integrity of the public service classification system which applies across the sector.  The CCC is free to modify its own staff arrangements and deviate from those applying in the public sector. 

13       Whilst I accept the applicant’s submission that administrative convenience or difficulties are not proper considerations in interpreting legislation, the practicality of appointing staff to particular levels and positions within the public service requires consideration of practical aspects such as the nature and requirements of available positions. 

14       Employees who choose to leave the public service for the purposes of employment with the CCC or with any other organisation, be it a government agency outside of the public service or in the private sector, do so for particular purposes.  What they are guaranteed in this case is a right of return at no lesser level than they left the public service.  One would anticipate that their service with the CCC would provide them with opportunities to increase their skills in particular areas however whether those new or higher level skills are transferable back into the public service will depend upon what positions exist within the public service.  It may be that no positions exist within the public service which require the new or increased level of skill in the particular area of skill or expertise which the person seeking to re-enter has developed in their time with the CCC.

15       The same would apply in respect of an employee who left the public service to work in the private sector and seeks to return, or to a new entrant to the public service.  However, in the case of those seeking to return to the public service from the CCC, their minimum level of re-entry is protected.

16       The situation is not analogous to redeployment and redundancy and the PSM R & R Regulations do not apply.  Those Regulations provide for a particular regime in circumstances where the officer was and continues to be a government officer, appointed and engaged within the processes applied across the public sector.

17       As to the applicant’s proposed criteria of principles of equity, whether the officer went to the CCC on promotion or was subsequently promoted and whether the return to the public service was at the initiative of the employee or the CCC, these are not matters which relate to the objective assessment and matching of the available positions with the officer’s experience, skills and qualifications.  The officer is guaranteed that his or her level upon leaving the public service will be maintained.  If he or she has developed particular skills or gained qualifications which relate only to work for the CCC, or relate to positions in the public service where there are no vacancies, then to appoint the officer to a position at a level commensurate with his or her level gained in employment at the CCC would be to compromise the proper appointment and classification systems in the public service.

18       However, if the officer has, during his or her time with the CCC gained experience and skills relevant to an available position in the public service, which is at a higher level than the position he or she held before the CCC position, then that CCC experience and skills would be relevant and ought to be recognised.

19       Whether the officer was appointed to the CCC position at a higher level than he/she left the public service, or was promoted while there, is not relevant to the officer’s capacity to meet the requirements of an available position within the public service.

20       If the additional experience, skills or qualifications gained while employed by the CCC are not transferable to an available position, then it does not matter whether the officer left the CCC at his own or the CCC’s initiative.

21       The issues the applicant raises as to the timing of the availability of positions, and who is to exercise the power to decide which positions best match the qualifications and experience of the officer, as well as what is to happen if the department which has the vacancy does not wish to accept the officer, are all valid issues, but they go beyond the issue at hand.  In this case the second respondent has actually offered and Mr Ross has accepted, albeit under protest, a position with it.  In any event, it appears that the Department of Premier and Cabinet has assumed the role of dealing with or co-ordinating the return of officers of the CCC to the public service.

22       Whether the issues raised by the applicant will arise, and whether they are within the Arbitrator’s jurisdiction because of the provisions of s 80E(7) of the Industrial Relations Act 1979, are matters for another day.

23       Accordingly, taking account of the submissions made by the parties in response to the invitation to make additional submissions, I am not able to further develop objective tests which would apply as matters of principle.  There will always be individual circumstances which require particular consideration.  However for the purposes of a declaration as to general principles to apply, those issues set out within [64] to [67] of the Reasons for Decision of 20 March 2008 shall apply.  Accordingly a declaration shall issue to the effect that:

The principles the Minister ought to consider when exercising discretion under s 180(3) of the CCC Act are:

a. the availability of positions within the public service at the equivalent level of classification and above as the officer occupied immediately prior to appointment under s 179 of the Corruption and Crime Commission Act 2003 (WA);

b. the nature of those positions;

c. the experience, skills and qualifications required of those positions and the experience, skills and qualifications of the officer concerned.