WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2008 WAIRC 01511

DELIVERED : WEDNESDAY, 22 OCTOBER 2008

FILE NO. : FBA 7 OF 2008

Appellant

AND

Commissioner Corruption and Crime Commission

First Respondent

    AND

The Minister for Public Sector Management

Second Respondent

ON APPEAL FROM:

Jurisdiction : Public Service Arbitrator

Coram : Commissioner P E Scott

Citation : 88 WAIG 265;

  Supplementary Reasons for Decision:  88 WAIG 662

File No : PSACR 27 of 2006

CatchWords:

Industrial Law (WA)  - Appeal against decision of the Public Service Arbitrator –s44(7) application for compulsory conference - redundancy and redeployment – claim for entitlements under Public Sector Management Act 1994 (WA) (the PSMA), Public Sector Management (Redeployment and Redundancy) Regulations 1994 (WA) (the PSMRRR) and Corruption and Crime Commission Act 2003 (WA) (the CCC Act) – permanent officer under the PSMA appointed to staff of the CCC under the CCC Act – position abolished – statutory interpretation - interaction of the CCC Act, the PSMA and the PSMRRR – whether redundancy and redeployment entitlements owed under the PSMRRR –– entitlements not owed as CCC no longer the “employing authority” – whether permanent public service officer status retained – entitlement to appointment under s180(3) of CCC Act – absence of notice of abolition of office – additional submissions required.

Legislation:

Industrial Relations Act 1979 (WA): s26, s44(7), s44(9), s49, s49(2a), s49(3), s80E, s80E(1), s80E(2), s80E(2)(a), s80E(2)(b), s80G, s80G(2)

Corruption Crime Commission Act 2003 (WA): s3, s8(1), s8(2), s8(3), s9(1), s9(2), Part 12 Division 1, s178, s179, s179(3), s179(4), s180, s180(1), s180(3), s180(3)(a), s181, s181(6), s210-s212, Schedule 2 clause 5, Schedule 3 clause 5

Public Sector Management Act 1994 (WA): s3, s3(1), s5, s8, s9, s21, Part 3 (s34-s67), s35, s39, s58, s58(1), s58(3), s64, s64(1), s64(2), s64(3), s64(7), s65, s66, s67, s67(a)-(e), (f), s74, s76(1), s78, s79(3), s79(3)(c), Part 5 Division 3, s80, s82, s86, s86(3)(a), s86(9)(b)(i), s88, s88(1)(b)(i), s89, s89(1), Part 6, s93, s94, s94(1), s94(3), s94(3)(e), s94(6), s95, s103, s104, s108, Schedule 2

Interpretation Act 1984 (WA): s18, s44(1), s179(1), s179(2)

Animal Resources Authority Act 1981 (WA): s13

Auditor General Act 2006 (WA): Schedule 1 clause 5(3)

Builders Registration Act 1939 (WA)

Commissioner for Children and Young People Act 2006 (WA): s13(3)

Electoral Act 1907 (WA): s5E

Environmental Protection Act 1986 (WA): Schedule 7 clause 4

Freedom of Information Act 1992 (WA): s62(5)

Inspector of Custodial Services Act 2003 (WA): s10(3)

Law Reform Commission Act 1972 (WA): s9(5)

Parliamentary Commissioners Act 1971 (WA): s10(5)

Perth Theatre Trust Act 1979 (WA): s17(4)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

The Health Services (Conciliation and Review) Act 1995 (WA): Schedule 2 clause 4

Zoological Parks Authority Act 2001 (WA): s7

Industrial Relations Commission Regulations 2005 (WA): reg 31

Public Sector Redeployment Redundancy Regulations 1994 (WA): regs 3, 4A, 4A(2), 4AA, 4, 4(1), 4(2), 4(2)(c), 4(2)(d), 4(3), 4(4), 5, 6, 8, 9, 10, 11, 11(1), 12(1), 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23

Result:

Additional submissions required

Representation:

Counsel:

Appellant  : Mr W Claydon

First Respondent : Mr M Hemery (of Counsel), by Leave

 Second Respondent  : Mr R Andretich (of Counsel), by Leave

Solicitors:

Appellant  : N/A

First Respondent : Talbot Olivier Lawyers

 Second Respondent  : State Solicitor for Western Australia

Case(s) referred to in reasons:

Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485

Bond v The Commonwealth (1903) 1 CLR 13

Bradshaw v The Commonwealth (1915) 36 CLR 585

Buck v Comcare (1996) 66 FCR 359

Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297

Corruption and Crime Commission of Western Australia v Civil Service Association of WA Inc [2006] WAIRC 03495

Health Services Union of Western Australia (Union of Workers) v Director General of Health (2007) 87 WAIG 737

Home Building Society Ltd v Pourzand [2005] WASCA 242

Le Leu v The Commonwealth (1921) 29 CLR 305

Pemberton v The Commonwealth (1933) 49 CLR 382

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v L (1994) 122 ALR 464

Re Peat Resources of Australia Pty Ltd; ex parte Pollock (2004) 181 FLR 454

Salomon v Salomon & Co Ltd [1897] AC 22 at 38

Schedlich v The Commonwealth (1926) 38 CLR 518

The State of New South Wales v The Commonwealth (1908) 6 CLR 214

Thiess Pty Ltd v AFMEPKU (2006) 86 WAIG 2495

Wilson v Anderson (2002) 213 CLR 401

Case(s) also cited:

Andersen v Umbakumba Community Council (1994) 1 IRCR 457

Burswood Resort (Management) Ltd. v the Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch [2000] WASCA 386

Cooper v Darwin Rugby League Jnc (1994) 1 IRCR 130

Cousins v YMCA of Perth [2001] WASCA 374

Craig v The State of South Australia (1995) 184 CLR 163

Dilworth v The Commissioner of Stamps [1899] AC 99

Gallo v Dawson (1990) 64 ALJR 458

Health Services Union of Western Australia v Director General of Health in Right of the Minister for Health [2008] WAIRC 00215; (2008) 88 WAIG 543

House v The King (1936) 55 CLR 499

Kelderman v SHRM (Australia) Ply Ltd (1989) 32 AILR 89

Norbis v Norbis (1986) 161 CLR 513

O’Connor v Argus and Australasian Ltd (1957) VR 374

Patterson v Middle Harbour Yacht Club (1996) 64 FCR 405

Scharmann v APIA Club Ltd (1983) 6 IR 157

Silberschneider v MRSA Earthmoving Pty Ltd (1987) 68 WAIG 33

Reasons for Decision

RITTER AP:

Introduction

1          On 17 July 2008 the appellant filed a notice of appeal to the Full Bench under s49 of the Industrial Relations Act 1979 (WA) (the Act).  The appeal was against a decision made by the Commission constituted by the Public Service Arbitrator (the Arbitrator) given on 20 March 2008.  The decision was in the form of an order which will be later set out.

2          The application was commenced by the appellant, as an organisation registered under the Act, on 19 October 2006.  It applied under s44(7) of the Act for a compulsory conciliation conference.  The application was about the appellant’s member Mr Glenn Ross and a dispute which had arisen between the appellant and Mr Ross with the first named and second named respondents.  (For ease of reference I will refer to both the first respondent and the Corruption and Crime Commission as “the CCC” and the second respondent as “the Minister”).

Overview of Issues

3          The application and the appeal involve the interaction between the Public Sector Management Act 1994 (WA) (the PSMA), the Public Sector Management (Redeployment and Redundancy) Regulations 1994 (WA) (the PSMRRR) and the Corruption and Crime Commission Act 2003 (WA) (the CCC Act) in the context of the employment of Mr Ross. 

4          The factual context, simply put, is that Mr Ross was a permanent public service officer appointed to a position under Part 3 of the PSMA.  He was later appointed to the staff of the CCC under the CCC Act.  This appointment ended when the CCC abolished the position held by Mr Ross and terminated his employment.  There was a dispute about the entitlements Mr Ross then had, and in particular, whether he had entitlements under the PSMRRR.

Statutory Construction

5          The determination of the appeal depends upon the construction of the PSMA, the PSMRRR and the CCC Act with respect to the employment of Mr Ross.  The process involved in such an exercise was set out in my reasons (with which Smith C and Harrison C agreed) in Thiess Pty Ltd v AFMEPKU (2006) 86 WAIG 2495 at [54]-[57] as follows:

“54 In Wilson v Anderson (2002) 213 CLR 401, Gleeson CJ said at [8]:-

“In the construction or interpretation of a statute, the object of a court is to ascertain, and give effect to, the will of parliament.  Courts commonly refer to the “intention of the legislature”.  This has been described as a “very slippery phrase”, (Salomon v Salomon & Co Ltd [1897] AC 22 at 38, per Lord Watson) but it reflects the constitutional relationship between the legislature and the judiciary… Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will.”

55 In Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485 at [113], Kirby J reiterated that it is necessary when engaging in the exercise of statutory construction to focus attention “upon the crucial language of the relevant provisions before other aids to construction are considered”.

56 In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, McHugh, Gummow, Kirby and Hayne JJ at [69] quoted from the reasons of Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297 at 320, the effect that the meaning of a statutory provision must be determined “by reference to the language of the instrument viewed as a whole”.

57 Although the focus must be on the meaning of the language used in the statute, s18 of the Interpretation Act [1984 (WA)], requires that in “the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object”.  As stated however by the Full Federal Court in R v L (1994) 122 ALR 464 at 468/9, the command contained in provisions like s18 of the Interpretation Act “can have meaning only where two constructions are otherwise open”, and the section “is not a warrant for redrafting legislation nearer to an assumed desire of the legislature”.”

6          I will adopt this process in the resolution of the appeal.

The Description and Preliminary Analysis of the Statutory Framework

(a) The PSMA

7          The preamble to the PSMA says that it is:

“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; to repeal the Public Service Act 1978 [(WA)]; and to provide for related matters.”

8          The “Public Sector” is defined in s3(1) of the PSMA as follows:

““Public Sector” means all — 

(a) the agencies;

(b) the ministerial offices; and

(c) the non‑SES organisations;”

9          The “public sector body” is defined in s3(1) of the PSMA to mean “agency, ministerial office or non-SES organisation”.

10       An “agency” is a “department” or an “SES organisation” (s3(1) of the PSMA).  A “department” is defined in s3(1) to be one established as such under s35 of the PSMA.  An SES organisation is defined in s3(1) of the PSMA, including by reference to column 2 of Schedule 2 of the PSMA.  “Ministerial office” is also defined in s3(1) but neither the definitions of “SES organisation” nor “ministerial office” are relevant to the appeal.  An “organisation” is defined in s3(1) of the PSMA to mean a “non-SES organisation or SES organisation”. 

11       A “non-SES organisation” is defined relevantly as follows:

““non‑SES organisation” means [sic] entity which consists of — 

(a) a body, whether corporate or unincorporate, or the holder of an office, post or position, being a body or office, post or position that is established or continued for a public purpose under a written law; and

(b) persons employed by or for the purposes of that body or holder under that written law or another written law,

and which neither is nor includes — 

(c) an SES organisation; or

(d) an entity specified in column 2 of Schedule 1”

12       As is set out below, and it was not in dispute, the CCC is a “non-SES organisation”, and therefore an “organisation”.

13       An “employee” is defined in s3(1) of the PSMA to mean a “person employed in the Public Sector by or under an employing authority”.

14       The PSMA uses the words “employee”, “officer” and “office”.  A “public service officer” is defined in s3(1) of the PSMA as follows:

“public service officer” means executive officer, permanent officer or term officer employed in the Public Service under Part 3;”

15       It seems clear however that an “employee” is an “officer”.  The word “employee” is used in many of the lynchpin sections of the PSMA such as in the definitions in s3, and also for example in s8, s9, s21, s74, s78, s80, s82 and s94; the latter being the section under which the Governor was, in combination with s108, authorised to make the PSMRRR. 

16       Relevantly for present purposes an “employing authority” is defined in s5 of the PSMA in the following way:

“(1) For the purposes of this Act, but subject to this section — 

“employing authority” means, in relation to — 

…

(c) a department or organisation or an employee (other than a chief executive officer or chief employee) employed in a department or organisation — 

(i) subject to subparagraph (iii), if a chief executive officer or chief employee is the accountable authority of the department or organisation, the chief executive officer or chief employee;

(ii) subject to subparagraph (iii), if a board, committee or other body established under a written law is the accountable authority of the department or organisation, that board, committee or other body; or

(iii) if a written law confers on a person or board, committee or other body the power to appoint or employ staff, the person or board, committee or other body;

…”

17       It was common ground that under s64 of the PSMA Mr Ross was on 15 December 1997 appointed as a non-executive permanent public service officer at the level of classification 7.3 in a position in the Ministry of Justice. 

18       Section 64 of the PSMA provides:

“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.”

19       Section 64(1)-(3) differentiates between the appointment of an officer and their appointment to an office, post or position.  They are separate steps.  (Neither “office”, “post”, nor “position” are defined in the PSMA).

20       Section 64(3) refers to the appointment of a person to fill a vacancy in an office, post or position.  Section 67 of the PSMA sets out circumstances in which the office of a non-executive public service officer becomes vacant.  It provides as follows:

“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.”

21       Section 67 is expressed to be about the vacation of an office, not the cessation of the employment of a permanent officer, although the two coincide in all except paragraph (f) of s67.

22       As set out in s67, the PSMA contemplates the vacation of an office by an officer’s “dismissal”; “retirement”; “termination” “under s79(3)” and the acceptance by the employing authority of a written “resignation”.  “Dismissal” occurs under the PSMA for a breach of discipline.  (Section 80 sets out what constitutes a breach of discipline; and see also s3(1), s86, s88 and s89).  The “retirement”, either voluntarily or compulsorily, of a public service officer under the PSMA is on the basis of ill-health under s39.  Section 79(3)(c) of the PSMA provides for an employing authority to terminate the employment in the public sector of one of its employees for substandard performance.  Resignation is, in addition to s67, contemplated by s94(3)(e) and the acceptance by an employee of “voluntary severance by resigning his or her office, post or position”.  As will be later set out there was no evidence that any of the s67(a)-(e) circumstances applied to Mr Ross at any time before or after his appointment to the CCC.

23       Section 67(f) refers back to the “appointment” of an officer to an office, post or position under s64(7) or their transfer under s65.  Section 64(7) is drafted in permissive terms.  A public service officer, holding an office, post or position in one department or organisation, may be appointed to another office, post or position in another department or organisation.  The subsection does not say that such an appointment has any impact upon any pre-existing appointment as a permanent officer.

24       Sections 65 and 66 respectively provide for the transfer and secondment of public service officers, other than executive officers, within and between, and from departments and organisations.

25       The PSMA in s58 provides a “right of return” for specified “executive officers”.  This right can be contrasted to s180 of the CCC, quoted below.  These executive officers are, if they have elected to retain a right of return, under s58(3) of the PSMA, entitled to “employment in a department or organisation at the same level of classification as he or she held immediately before ceasing to be employed for an indefinite period …” as an executive officer.  The balance of s58(3), together with s58(1) of the PSMA, sets out what “employed for an indefinite period” means for the purposes of the subsection.  It includes being continuously employed for an indefinite period in a department or organisation for six months immediately prior to first being appointed as an executive officer.

26       Sections 103 and 104 provide for the reappointment of people who resigned from the “Public Sector” to stand as a candidate at a state or federal election and were not successful.  I also mention these sections as being in contrast to s180 of the CCC Act.  Such employees are entitled to be “reappointed as an employee in the public sector body in which that person was employed immediately before his or her resignation” if they apply not later than two months after the declaration of the result of the election.

27       Section 104 provides that in the period between resignation and reappointment the person “does not accrue any rights” but the resignation does not affect continuity of service.

28       Sections 94(1), 94(3) and 94(6) in combination with s108 of the PSMA empower the Governor to make regulations as follows:

“94. Regulations concerning redeployment and redundancy

(1) The Governor may under section 108 make regulations prescribing arrangements for — 

(a) redeployment and retraining; and

(b) redundancy,

for employees who are surplus to the requirements of any department or organisation, or whose offices, posts or positions have been abolished, and specifying which parts of the Public Sector must comply with those regulations.

…

(3) Without limiting the generality of subsection (1), regulations referred to in that subsection may provide for — 

(a) the registration of an employee (in this subsection called a “registered employee”) who is surplus to the requirements of a department or organisation, or whose office, post or position has been abolished, and who cannot be transferred within the department or organisation;

(b) the maximum period for which a registered employee may be registered;

(c) the circumstances in which the Minister may direct — 

(i) a registered employee to accept redeployment between one department or organisation and another; and

(ii) the employing authority of a department or organisation to accept a registered employee directed under regulations made under this paragraph to accept redeployment to the department or organisation, and that employing authority shall comply with that direction;

(d) the retraining of a registered employee and for the terms and conditions (including remuneration) which are to apply to the registered employee;

(e) the terms and conditions (including remuneration) which are to apply to a registered employee who, with the prior approval of the Minister, accepts voluntary severance by resigning his or her office, post or position;

(f) the terms and conditions (including remuneration) which are to apply to a registered employee who accepts an offer of a suitable office, post or position inside or outside the Public Sector, and those which are to apply to a registered employee who does not; and

(g) the manner in which employing authorities are to notify the Minister of vacancies in offices, posts or positions within their departments or organisations, and the procedure to be followed before those vacancies can be filled.

…

(6) For the purposes of this section, “suitable office, post or position” or “suitable employment” means office, post or position or employment, as the case requires — 

(a) which is suitable having regard to the respective responsibilities attached to it and to the office, post or position or employment occupied or held by the employee at the time when the relevant offer is made and to the experience, qualifications and competence of the employee;

(b) which does not require the employee to change his or her place of residence; and

(c) which satisfies such other criteria as are prescribed.”

29       The regulations which have been made pursuant to s94(1) of the PSMA are the PSMRRR. 

(b) The PSMRRR

30       The PSMRRR has seven parts being:

Part 1 – Preliminary; regs 1-4.

Part 1A – Notice of Redundancy; regs 4AA and 4A.

Part 2 – Transfer and Voluntary severance; regs 5-7.

Part 3 – Privatisation and contracting out; regs 8-10.

Part 4 – Registered employees; regs 11-19.

Part 5 – Voluntary severance payments and other benefits; regs 20-22.

Part 6 – General; regs 23-25.

31       Section 44(1) of the Interpretation Act (1984) (WA) applies to the PSMRRR so that words and expressions used in it have the same meaning as in the PSMA.  The PSMRRR uses words and expressions defined in the PSMA like “employee”, “employing authority”, “department”, “organisation” and “permanent officer”. 

32       Generally the scheme of the PSMRRR is to set out provisions which apply to an “employing authority” which determines to and does abolish the “office, post or position” of an employee “in a department or organisation” or where the employee becomes “surplus to the requirements of his or her department or organisation”.  The PSMRRR imposes obligations upon the employing authority and gives entitlements to and imposes obligations upon an effected employee.  As will be quoted below reg 4(2) excludes specified employees from eligibility for “redeployment” or “voluntary severance” under the PSMRRR.  One of these is an employee for a fixed term contract of employment who is not a “permanent officer”.

33       This exclusion fits within the scheme of the redeployment and voluntary severance provisions of the PSMRRR.  This is because they are predicated on the basis that public service officers are appointed as such, not merely as the employees of an employing authority.  The appointment of a public service officer is separate from their appointment to an office, post or position, and a permanent officer’s appointment for an indefinite period survives the abolition of their office, post or position.  An employing authority is not entitled to unilaterally end the employment of a permanent officer on the basis that their office is abolished or they are surplus to the requirements of an organisation or department.  The employment of a public service officer generally continues unless brought to an end in accordance with the PSMA and/or the PSMRRR.  The PSMA and PSMRRR recognise however that decisions to abolish offices, posts or positions can legitimately be made and officers do become surplus to requirements.  The PSMRRR sets out the consequences of these occurrences to the employing authority and employee.

34       Regulation 4 of the PSMRRR sets out their application as follows:

“4. Application

(1) Subject to subregulation (2), these regulations apply to and in relation to all employees in departments or organisations and to all employing authorities of departments or organisations.

(2) An employee — 

(a) who retires or is retired from his or her employment on the grounds of ill health, whether under section 39 of the Act or otherwise;

(b) whose employment in the Public Sector is terminated because of misconduct or substandard or unsatisfactory performance;

(c) who is dismissed under Division 3 of Part 5 of the Act;

(d) who is employed under a contract of employment that has a fixed term and who is not a permanent officer; or

(e) who is a casual employee or a seasonal employee,

is not eligible for redeployment or voluntary severance under these regulations.

(3) In subregulation (2)(e) “seasonal employee” means an employee who is employed to work for limited periods during a season of the year.”

35       There is a distinction between reg 4(1) and (2) in that the former refers to the application of “these regulations” whilst the latter excludes the specified employees from eligibility “for redeployment or voluntary severance under these regulations”.  This contemplates that the PSMRRR could possibly apply, other than in respect of “redeployment or voluntary severance”, to at least some of the employees specified in reg 4(2), on some occasions.  An example is if a decision was made to abolish the position of an employee, six months into their two year fixed term.

36       As will become apparent later, neither the parties nor the Arbitrator focused on the distinction between reg 4(1) and (2) with respect to Mr Ross.  It seemed to be assumed that whether any of the PSMRRR applied to Mr Ross depended on whether he was a permanent officer after his employment with the CCC ended.

37       The regulations in the PSMRRR which are other than in respect of “redeployment” or “voluntary severance” include at least reg 4AA (consultation about redundancy), reg 4A(2) (notice of redundancy), regs 8-10 (private sector offers of office on privatisation or contracting out), and reg 23 (later quoted, which provides for the rate of pay of employees whose office, post or position is abolished but who are still entitled to payment).

38       My opinion about the distinction between reg 4(1) and (2) is supported by reg 10 which provides that a person dismissed under s86(3)(a) or s86(9)(b)(i), s88(1)(b)(i) or s89(1) of the PSMA is not entitled to a payment under reg 9 or a severance payment.  It would be unnecessary to refer to these sections of the PSMA in reg 10, if regs 8 and 9 were about “redeployment” or “voluntary severance”, as employees dismissed under the specified subsections are already excluded under reg 4(2)(c).

39       Regulations 4AA and 4A provide:

“4AA. Entitlement to be consulted regarding

redundancy

(1) As soon as is practicable after an employing authority determines that —

(a) the office, post or position of an employee is to be abolished; and

(b) the employee may become surplus to the requirements of the department or organisation,

the employing authority must give the employee written notice of all relevant information relating to the determination.

(2) Without limiting subregulation (1), the notice given under that subregulation is to include —

(a) the reasons why —

(i) the office, post or position is to be abolished; and

(ii) the employee may become surplus to the requirements of the department or organisation;

and

(b) any measures the employing authority considers could be taken that would avoid the employee becoming surplus to the requirements of the department or organisation; and

(c) the period within which the employee may become surplus to the requirements of the department or organisation; and

(d) if other employees in the same department or organisation are the subject of a determination of the kind referred to in subregulation (1), the number of those employees.

(3) The employing authority of an employee given a notice under subregulation (1) must consult the employee in relation to the matters set out in the notice.

(4) Nothing in this regulation requires an employing authority to disclose confidential information that the employing authority considers would be contrary to the interests of its department or organisation to disclose.

(5) Notice given to an employee under subregulation (1) does not constitute notice for the purposes of regulation 4A(2).

4A. Entitlement to notice of redundancy and pay in lieu

(1) In this regulation —

“pay” has the same meaning as it has in regulation 20(7).

(2) The employing authority of an employee —

(a) whose office, post or position is to be abolished; and

(b) who will become surplus to the requirements of his or her department or organisation,

must give the employee at least 12 weeks’ written notice of the fact.

(3) An employee who does not get such notice is entitled to one weeks’ pay for each week, or a part of a week, of notice that he or she did not get.

(4) Payment of an entitlement under subregulation (3) may only be made if the employee accepts an offer made under regulation 6, 15 or 16.”

40       One of the key aspects of the PSMRRR is about the registration of employees.  Regulation 11 provides:

“11. Registration of employees

(1) The employing authority of an employee — 

(a) whose office, post or position has been abolished or who is otherwise surplus to the requirements of his or her department or organisation; and

(b) who cannot be transferred within his or her department or organisation,

may apply to the Minister to register that employee.

(2) An application made under subregulation (1) shall be — 

(a) in writing; and

(b) on such form as the Minister approves.

(3) If, on an application made under subregulation (1), the Minister is satisfied that the employee is an employee of the kind described in that subregulation, the Minister may register the employee.”

41       It is the “employing authority of an employee” who can apply for registration.  This confirms that there remains an employment relationship between the employing authority and the employee whose office, post or position is abolished or who is otherwise surplus to requirements.  Regulations 13 and 14 are respectively about the “redeployment” and “retraining” of registered employees.  Regulation 13 provides for redeployment in this way:

“13. Redeployment of registered employees

(1) If a registered employee is offered employment, whether in his or her own department or organisation or in another department or organisation, that offer shall — 

(a) be in writing; and

(b) set out the terms and conditions (including pay) subject to which that offer is made.

(2) If the Minister is satisfied that, a registered employee having been offered suitable employment in a department or organisation, the registered employee has — 

(a) refused that offer; or

(b) hindered or obstructed his or her redeployment to that suitable employment,

the Minister may in writing direct the registered employee forthwith to accept that offer.

(3) If the Minister is satisfied that — 

(a) a suitable office, post or position in a department or organisation has been identified for a registered employee; and

(b) the employing authority of that department or organisation has refused to offer the registered employee employment in that office, post or position,

the Minister may direct that employing authority forthwith to offer the registered employee employment in that office, post or position.

(4) An employing authority to which a direction is given under this regulation shall comply with the direction.”

42       The expression “suitable employment” in reg 13 is defined in reg 3 of the PSMRRR as follows:

“suitable office, post or position” or “suitable employment” has the meaning given by section 94(6) of [the PSMA] as read with subregulations (2) and (3); …

(2) For the purposes of paragraph (c) of the definition of “suitable office, post or position” or “suitable employment” in section 94(6) of [the PSMA], the prescribed criteria to be satisfied by an office, post or position or employment, as the case requires, are that — 

(a) it is the most suitable actually available; and

(b) the maximum pay applicable to the office, post or position or employment is — 

(i) as close to that applicable to the former office, post, position, or employment as is reasonably practicable; and

(ii) in any case, subject to subregulation (3), is not less than 80%, nor more than 110%, of the maximum pay applicable to the range of classification within which the office, post or position or employment occupied or formerly occupied by the employee in question is or was situated.

(3) For the purposes of subregulation (2) the maximum pay of a part‑time employee is to be the same proportion of the maximum full‑time pay as the number of hours worked each week bears to the number of hours provided for in the award as constituting a week’s work.”

43       Regulations 15 and 16 are about voluntary severance for registered employees.  Regulations 20 and 21 are about voluntary severance payments, other benefits upon voluntary severance or substituted voluntary severance.

44       The PSMRRR distinguishes between situations where an office, post or position is to be abolished and where abolition has already occurred.  In the first category are:

(a) Regulations 4AA and 4A quoted above. 

(b) Regulation 6, where the provision of voluntary severance payments is for employees whose office, post or position is or is to be abolished. 

(c) Part 3 which applies where the undertaking of a department or organisation is, or is to be sold or disposed of, in whole or part to, or its production of goods and/or services replaced by, a person outside the public sector.

45       In the second category are:

(a) Regulation 5 about the transfer of an employee whose office, post or position is abolished. 

(b) Regulation 6 insofar as it refers to an office, post or position which “is … abolished”.

(c) Regulation 11, quoted above, under which registration can occur if an employee’s office, post or position has been abolished or they are otherwise surplus to requirements. 

(d) Part 3 insofar as it refers to the undertaking of a department or organisation that “is … sold or disposed of”.

(e) Regulations 13, 15, 16, 17, 18 and 19 in which redeployment and severance conditions and benefits are provided to registered employees. 

46       As stated the regulations in the second category are premised upon the employee remaining employed by an employing authority despite the abolition of their office, post or position.  This is reinforced by:

(a) Regulation 12(1) which obliges an employing authority to grant a registered employee reasonable leave without loss of pay to attend employment interviews and career counselling.

(b) The receipt of voluntary severance payments occurring when a registered employee accepts an offer by “resigning from his or her employment” (regs 15, 16, 20 and 21).

47       Regulation 23, which has already been mentioned, is as follows:

“23. Rate of pay of surplus employees

The rate of pay of an employee, whether a registered employee or not — 

(a) whose office, post or position has been abolished; but

(b) who is for the time being entitled to payment until his or her resignation, redeployment or other arrangement has effect under these regulations,

is the rate of pay to which the employee was entitled in respect of the office, post or position that has been abolished.”

48       This does not of itself provide an entitlement to be paid; it simply provides a rate of pay for an employee who is “entitled” to payment.

(c) The CCC Act

49       Section 8(1) of the CCC Act provides for the establishment of the CCC.  Section 8(2) and (3) provide that it is a body corporate with perpetual succession and proceedings may be taken by or against the “Commission” in its corporate name.  Section 9(1) provides that there is to be a “Commissioner”, who in the name of the “Commission” is to perform the functions of the “Commission” under the CCC Act and any other written law.  Section 9(2) provides that if under the CCC Act or any other written law an act or thing may or must be done by, to, or by reference to or in relation to the “Commission”, the act or thing is to be regarded as effectually done if done to, by reference to or in relation to the “Commissioner”.  It is presumably under this subsection that the application was commenced against the Commissioner, even though the CCC was the employer of Mr Ross.

50       As mentioned already Mr Ross became a staff member of the CCC.  Relevant to the application and appeal was his appointment on 22 November 2004 as a staff member for a five year term commencing on the earlier date of 8 October 2004.

51       Part 12 of the CCC Act is about “Administration”.  Division 1 is headed “Staff”.  Sections 178-180 are particularly relevant and are as follows:

“178 Commission is not an SES organisation

The Commission is not, and is not to become, an SES organisation under the Public Sector Management Act 1994.

179 Staff of Commission

(1) The Commission may appoint members of staff.

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

(3) The staff are not to be employed under Part 3 of the Public Sector Management Act 1994.

(4) The power conferred by subsection (1) includes powers to determine remuneration and other terms and conditions of service of staff, to remove, suspend and discipline staff and to terminate the employment of staff.

(5) The remuneration of and other terms and conditions of employment of staff are not to be less favourable than is provided for in —

(a) an applicable award, order or agreement under the Industrial Relations Act 1979; or

(b) the Minimum Conditions of Employment Act 1993.

180 Entitlements of public service officers

(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.”

52       In s3 of the CCC Act “public service officer” is defined to have the same meaning as in s3(1) of the PSMA.

53       The entitlement in s180(3) is different from the redeployment which a registered employee may be directed to take under reg 13 of the PSMRRR.  For example, as set out above the Minister may direct the employee to accept “suitable employment” within generally a range of 80%-110% of the salary of their former office.

54       Section 180 of the CCC Act may also be contrasted to s58, s103 and s104 of the PSMA referred to above.  In these sections there is specific reference to the cessation of employment with a department or organisation or resignation from the public sector.

55       The scheme provided for in s180 of the CCC Act is substantially repeated with respect to the appointment of staff of the Parliamentary Inspector, in s210-s212 of the CCC Act; the appointment of the Commissioner, in clause 5 of Schedule 2 to the CCC Act; and the appointment of the Parliamentary Inspector, in clause 5 of Schedule 3 to the CCC Act.

56       Section 181 of the CCC Act provides for the secondment of staff by the Commission from, for example, the public service.  Section 181(6) provides that such an arrangement is to be made with the relevant employing authority, on terms agreed by the parties.

57       Further analysis of s179-181 of the CCC Act is set out later in the context of the grounds of appeal and the reasons of the Arbitrator.

The Application

58       The application was made to the Commission constituted by the Arbitrator pursuant to the jurisdiction contained in s80E of the Act.  Section 80E(1) provides that the Arbitrator has, subject to exceptions which are not material to the appeal, “exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer …”.  There was no dispute before the Arbitrator or on appeal about the Arbitrator having jurisdiction.

59       The application described the factual background.  It was said to be made, amongst other things, on the ground that the CCC had made a decision to reduce the salary and entitlements of Mr Ross pending redeployment, contrary to reg 23 of the PSMRRR.  The relief sought in the application, amongst other things, was an order to reinstate Mr Ross’s salary and entitlements to “level 9”, backdated to 1 September 2006 and an order confirming his classification at “level 9” for the purposes of appointment/redeployment within the public service. 

The Memorandum of Matters

60       The “industrial matter” was not resolved by conciliation and accordingly proceeded to arbitration pursuant to s44(9) of the Act.  In accordance with reg 31 of the Industrial Relations Commission Regulations 2005, a Memorandum of Matters Requiring Hearing and Determination was prepared (the Memorandum).  It is unnecessary to set this out.  (It is quoted in the reasons at first instance).

The Statement of Agreed Facts and Documents

61       The arbitral hearing proceeded primarily by way of a Statement of Agreed Facts and Documents, although there was some oral evidence as described below.  It is not necessary to set out the agreed facts in full.  (The Statement of Agreed Facts is quoted in the reasons at first instance).

The Facts Relevant to the Appeal

62       The following, taken from the Statements of Agreed Facts and the attached documents, is relevant to the appeal.

63       By letter dated 18 November 1997 Mr Ross was appointed to the position of “Manager – Forensic Case Management Team, Level 7, Year 3, Casuarina Prison, Offender Management” at the Ministry of Justice, commencing on 15 December 1997.

64       From 23 September 2002 to 30 January 2004, by means of secondments or similar arrangements, Mr Ross worked for the “Kennedy Royal Commission”.

65       Mr Ross was first employed by the CCC from 2 February 2004 to 17 May 2004.  His employment by the CCC continued until the appointment to the position which is relevant to the appeal.  That was made by letter dated 22 November 2004.  Mr Ross was appointed to a five year term, from 8 October 2004, to the position of Manager – Corruption Prevention, Education and Research.  The letter said the salary of Mr Ross was $94,768 and he was employed at level 9.1 in the “Public Sector”.  The letter also said Mr Ross was employed pursuant to s179 of the CCC Act.

66       The letter said the terms and conditions of the Government Officers Salaries, Allowances and Conditions Award 1989 and the Government Officers Salaries, Allowances and Conditions General Agreement 2004 applied except as varied, until a Commission-Staff Agreement, with no less favourable terms, was registered.

67       On 19 January 2006 the Corruption and Crime Commission Industrial Agreement (the CCCIA) was registered and came into force (see Corruption and Crime Commission of Western Australia v Civil Service Association of WA Inc [2006] WAIRC 03495 (PSAAG 28 of 2005)).  This provided in clause 9(7) that the employment of an employee could be terminated on one month’s notice or by paying one month’s salary in lieu of notice.

68       By letter dated 16 January 2006 the CCC wrote to Mr Ross to advise him that:

(a) His position had been reclassified to a new position at level 8.

(b) His remuneration would remain at level 9 during the life of his current contract.

(c) The previous title of the position had been retained.

(d) There was a revised job description which was attached.

69       By letter dated 17 January 2006 Mr Ross disputed the unilateral reclassification of his position from level 9 to level 8 and raised a grievance under the CCCIA.  Meetings and correspondence about the dispute followed.

70       From 23 March 2006 Mr Ross went on extended sick leave, followed by “administrative leave”.  This continued until 1 September 2006.  During this period there was considerable correspondence about the grievance of Mr Ross.

71       In a nine page letter to Mr Ross dated 1 September 2006 the CCC relevantly:

(a) Referred to the contents of the letter dated 16 January 2006 (p1).

(b) Said its position was the letter had terminated the employment of Mr Ross in the level 9 position on the grounds of redundancy (p1).

(c) Said the letter had offered employment at the new level 8 position on the same remuneration as the level 9 position, but that this offer could not take effect until accepted (p1).

(d) Accepted the assertion of Mr Ross that the actions of the CCC including the sending of the letter dated 16 January 2006 had amounted to a repudiation by the CCC of the contract of employment at the level 9 position (p2).

(e) Said that although Mr Ross had elected to keep the level 9 contract “alive”, the effect of the letter “was to terminate your employment in the Level 9 position” (p2).

(f) Said Mr Ross had made it clear he had not accepted the offer of the level 8 position (p2).

(g) Advised the offer of the level 8 position had either lapsed or was withdrawn (p3).

(h) Said that upon the rejection of the offer of the level 8 position, Mr Ross ceased being an officer of the CCC for the purposes of s180(3) of the CCC Act and had not been subsequently reappointed (p3).

(i) Said that as the reason for the cessation of employment was redundancy, Mr Ross was entitled under s180(3) to be appointed to a public service office of at least the equivalent level of classification as the office that he occupied immediately prior to his appointment under s179(1) of the CCC Act (p4).

(k) Said the procedures for such an appointment were contained in the PSMRRR (p4).

(l) Said the CCC had exercised its power under reg 11(1) of the PSMRRR to register Mr Ross with the Minister (p4).

(m) Said the CCC would pay Mr Ross at level 7 from the date of the letter (p5).

72       Mr Ross was then paid by the CCC at level 7.3 from 1 September 2006.  By e-mail dated 4 September 2006 the Executive Director of the CCC advised its staff of the decision to “unilaterally” terminate the contract of Mr Ross.  Mr Ross disputed the decision of the CCC to change the characterisation of his employment status, including the decision to pay him at level 7.3.  There were a number of letters sent by Mr Ross to the CCC about this and then the appellant filed the application.  After the filing of the application, conferences, discussions and correspondence all took place. 

73       Notwithstanding the CCC’s advice to Mr Ross that he would be registered for redeployment, the Department of the Premier and Cabinet (DPC) on behalf of the Minister would not accept the registration.  The DPC’s position at the time was that Mr Ross did not qualify for redeployment under the PSMRRR because he had been employed by the CCC pursuant to a fixed term contract.  The DPC advised Mr Ross that he was entitled to return to the public service pursuant to s180(3) of the CCC Act, at level 7, being the level he held in the public service prior to his appointment by the CCC.  Mr Ross did not at that time accept this and there was correspondence about the issue.

74       By letter dated 14 February 2007 however the Director General of the DPC, on behalf of the Minister, offered employment to Mr Ross in that department at level 7.3.  Mr Ross accepted the offer of employment by e-mail sent on 22 February 2007.  In the email Mr Ross said that despite “misgivings”, which he set out, he found himself “compelled under duress to accept employment” with the DPC.  The CCC continued to pay Mr Ross up to and including 8 March 2007, after which the DPC commenced paying Mr Ross.  At the time of the hearing before the Arbitrator Mr Ross was engaged with the DPC at level 7.3.

75       There was no evidence about any interaction or communications between Mr Ross and the Ministry of Justice upon or after the appointment of Mr Ross to the CCC, about his employment status or what became of his position.  Although it does not have an impact on the outcome of the appeal, I note for completeness that the “Ministry of Justice” was designated as the “Department of Justice”, from 1 July 2001; and from 1 February 2006 that department was designated as the “Department of the Attorney General”.  (See Western Australia, Government Gazette, No 185 (11 September 2001) 5000; No 4 (10 January 2006) 39).

The Hearing and the Witnesses

76       The hearing of the application took place on 4 July 2007.  At the hearing the appellant was represented by an industrial officer and the CCC and the Minister by counsel.

77       Neither the appellant nor the CCC called any witnesses to give evidence.  The Minister called Mr Michael McLaughlan and Mr Daniel Volaric to give evidence.  Mr McLaughlan was the Principal Policy Officer, Redeployment in the DPC.  He had been involved in the redeployment of employees within the public sector since the concept of redeployment began in 1984 (T3).  He said the policy in relation to temporary or fixed term employees was that they had not been eligible for redeployment or redundancy.  There was concern however that the policy was not matched by the PSMRRR.  Mr McLaughlan said the issue was raised because of the “Fielding Review” in 1996 (T3).  Mr McLaughlan was shown an extract from Mr Fielding’s report which was received as an exhibit.  Mr McLaughlan said that arising out of the report there was an amendment to the PSMRRR in 1996 which changed reg 4(2)(d) to its present form.

78       Mr McLaughlan was then shown a Redeployment and Redundancy Policy Statement dated December 2002.  In clause 5 the policy statement said that fixed term contract employees who had completed their term of engagement were not entitled to redeployment or redundancy benefits.

79       Mr McLaughlan was not cross-examined by either the industrial officer for the appellant or counsel for the CCC.

80       Mr Volaric was the Director of Workforce Management with the Public Sector Management Division (T6).  He had been involved in the dispute about the employment of Mr Ross and the processes in returning him to the public sector under s180(3) of the CCC Act.  Mr Volaric was asked whether it would be easy to redeploy Mr Ross at level 9 within the public service.  Mr Volaric said it would not because the opportunities for redeployment at level 9 are few and far between (T7). 

81       There was brief cross-examination of Mr Volaric by the industrial officer for the appellant and counsel for the CCC but it is not relevant to the appeal. 

The Position of the Parties at First Instance

82       The position of the parties at first instance was set out in the Memorandum.

83       The appellant sought:

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

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

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

(i) An order that Mr Ross be consulted as to the operation of s180(3) of the CCC Act; and

(ii) A declaration as to the principles the Minister ought to consider when exercising discretion under s180(3) of the CCC Act.

84       The CCC’s position was that:

(a) Mr Ross’s term of employment was not a “fixed-term contract” under reg 4 of the PSMRRR.

(b) This was because Mr Ross:

(i) Was a “permanent officer” in the “public service” classified at level 7 under the PSMA prior to his appointment by the CCC by the contract dated 22 November 2004.

(ii) Retained the status of a “permanent officer” in the “public service” classified at level 7 while employed by the CCC.

(c) The exclusion in reg 4(2)(d) of the PSMRRR did not therefore apply to Mr Ross.

(d) Mr Ross’s position with the CCC under his contract of employment was “abolished”, within the meaning of the PSMRRR, by the CCC on 16 January 2006.

(e) Mr Ross therefore had an entitlement to be redeployed in accordance with the PSMRRR on and from 16 January 2006.

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

(g) Upon ceasing to hold an office with the CCC, Mr Ross became entitled under s180(3) of the CCC Act to be appointed to an office under Part 3 of the PSMA by the Minister.  Accordingly, the CCC had no obligation in relation to any such appointment.

(h) 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 entitlements as such was upon the Minister and not the CCC.

(i) 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.

(j) Mr Ross was appointed by the Minister, pursuant to s180(3) of the CCC Act, to an office in the public service under the PSMA with the classification level 7.3 with effect from 8 March 2007.

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

(l) The CCC neither accepted nor rejected the appellant’s alternative contentions.

85       In response to the relief sought by the appellant, the CCC denied that Mr Ross was entitled to be paid salary and entitlements at level 9 as from 1 September 2006.  It contended:

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

(b) Even if reg 23 did provide 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 that of the Minister and not the CCC; and

(ii) any such obligation ceased upon appointment to an office in the public service by the Minister pursuant to s180(3) of the CCC Act, on and from 8 March 2007.

(c) Mr Ross was not now entitled to be redeployed into the public service under the PSMRRR, on the ground that the entitlement ceased when he was appointed by the Minister to an office pursuant to s180(3) of the CCC Act.

86       The Minister did not accept the appellant’s claims and contended:

(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 s179 of the CCC Act is employment that has a “fixed term” for the purposes of the PSMRRR.

(c) Mr Ross was not a “permanent officer” following his appointment to the staff of the CCC and therefore the PSMRRR did not apply to him because of the operation of reg 4(2)(d).

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

Submissions at First Instance

87       The appellant’s industrial officer and counsel for the CCC and the Minister made oral closing submissions at the end of the evidence at the hearing.  Written submissions had been earlier filed and/or handed to the Arbitrator at the hearing.  The appellant provided two sets of written submissions.  The first was filed on 29 June 2007.   The second was handed up at the hearing on 4 July 2007.  It was partly in response to the written submissions filed by the CCC and the Minister on 3 July 2007. 

88       In an attempt to avoid repetition I will summarize the combined effect of the written and oral submissions of the parties, to the extent that they add to what was set out in the Memorandum.

The Submissions of the Appellant at First Instance

89       The appellant’s claim for relief was said to be in the alternative.  Its primary contention was that the PSMRRR applied to Mr Ross.  Its alternative contention was about the way in which s180(3) of the CCC Act should be implemented.  The alternative contention is not material to the appeal.

90       The appellant argued Mr Ross should be redeployed under the PSMRRR because he was not excluded from their operation.  Mr Ross was not covered by the exclusion in reg 4(2)(d).  This was because in order to be excluded from the operation of the PSMRRR under that paragraph, two conditions had to be satisfied.  The first was the employee must be on a fixed term contract.  The second was that they were not a permanent officer.

91       It was submitted that Mr Ross was a permanent officer so the fact that he was engaged on a fixed term with the CCC was not sufficient to exclude him from the application of the PSMRRR. 

92       The appellant argued s180(3) of the CCC Act did not “militate against” the appellant’s construction of reg 4 of the PSMRRR.  Section 180(3) provided the minimum conditions through which a permanent officer of the public sector was to be redeployed into the public sector.  This was not in conflict with the PSMRRR and did not render them inoperative. 

93       The appellant also made submissions about when redeployment was to take effect.  It was contended that under reg 4AA of the PSMRRR the CCC was obliged to give Mr Ross 12 weeks’ notice to run from the date he received their letter dated 1 September 2006.  It was also submitted that whether or not Mr Ross was registered he was entitled to be paid at a level 9 salary until redeployed or another arrangement was made under the PSMRRR.  It was submitted his salary level was protected by reg 23 of the PSMRRR. 

94       Written submissions were made upon contentions by the CCC about the date of the abolition of the office of Mr Ross.  It is not necessary to summarise these submissions other than to mention the appellant submitted the letter of 1 September 2006 “advised Mr Ross that he was surplus to requirements and proceeded to terminate the employment relationship forthwith, and invoke” the redeployment regulations in the PSMRRR.  The appellant also said the CCC “terminated the employment relationship or called it quits on or after 1 September 2006”.

95       At the hearing the appellant’s industrial officer submitted:

(a) At no time had Mr Ross abandoned his permanency at level 7 with the Ministry of Justice (T12).

(b) Permanency continued until the present time (T12).

(c) In answer to a question from the Arbitrator about whether Mr Ross reverted to the position he held with the Ministry of Justice at level 7, the industrial officer said “not necessarily” because of reg 23 of the PSMRRR (T13).

(d) The obligation of the CCC to continue to pay Mr Ross at level 9 was because of reg 23 of the PSMRRR (T13).

The Submissions of the CCC at First Instance

96       It was argued that Mr Ross was an employee in an organisation to which the PSMRRR applied, in that he was a “permanent officer”  for the purposes of reg 4(2)(d) of the PSMRRR. 

97       It was submitted the appointment of a permanent officer under s64 of the PSMA involved three stages being:

(a) Appointment as a permanent public service officer for and on behalf of the Crown (s64(1)(a)).

(b) Appointment to a particular classification as part of the appointment as a permanent public service officer (s64(2)).

(c) Appointment to a particular office within a department (s64(3)) (T16-17).

98       It was contended that Mr Ross continued to hold his office in the Ministry of Justice as “part of the protection that is provided to a public service officer who is appointed to permanency” (T17).  It was argued that if the employment with the CCC of a permanent public service officer extended for a lengthy time it was likely the office would not be there at the end of the employment.  The problem was catered for by s180(3) of the CCC Act (T17-18).  Also, if the effect of appointment to the CCC involved the destruction of permanent officer status, then s180(3) of the CCC Act would refer to appointment as a “permanent officer” not to an “office” (T18).  In answer to a question from the Arbitrator, counsel did not think anyone had considered whether or not the office of Mr Ross with the “Department of Justice” still existed.  Counsel said:  “I think … everyone’s made the assumption that its no longer there” (T29).

99       The CCC submitted the use of the past tense in referring to a “permanent officer” in s180(3) of the CCC Act did not have an impact on whether someone remained a permanent employee.  This was because the purpose of the subsection was to ensure that people who may have been public service officers immediately before they became staff of the CCC would get the benefit of the subsection.  It had to be expressed in past tense to make sense (T46). 

100    The CCC also referred to the limited circumstances, in s67 of the PSMA, by which an office held by a permanent officer may be vacated.  There was no other way in which a public service office could be vacated.  None of the circumstances set out in s67 applied to Mr Ross.  In particular there was no evidence of Mr Ross resigning his office and the “Department of Justice” accepting his resignation in writing so as to satisfy s67(e) of the PSMA.  Contrary to the submission of counsel for the Minister, (referred to below), it was a mixed question of law and fact as to whether one of the circumstances set out in s67 of the PSMA had occurred.  It was contrary to s67 for there to be a “notion of implied loss of permanent officer status” (T46). 

101    It was submitted that upon the cessation of his employment with the CCC, Mr Ross was entitled to resume his permanent office subject to it not having being abolished in the meantime and the “Ministry of Justice” being able to accommodate him in that office.  Accordingly Mr Ross retained the status of a permanent officer under the PSMA and the exclusion in reg 4(2)(d) in the PSMRRR did not apply to him.

102    It was submitted it was not to the point that a “right of return” was provided under s180(3) of the CCC Act.  This was because this right did not provide all of the benefits available to a “redundant officer” that would be available under the PSMRRR.  A permanent public officer should not be penalised in respect of redundancy benefits by having chosen to accept an appointment with the CCC. 

103    Submissions were then made about the abolition of the position of Mr Ross with the CCC.  The CCC submitted that at the latest the letter dated 1 September 2006 informed Mr Ross of the withdrawal of the offer of employment in the new level 8 position and the abolition of his office took effect from that date, or at latest 12 weeks from that date.

104    It was contended that upon the cessation of the office of Mr Ross with the CCC, he had no right to receive remuneration from the CCC under either the PSMA, the PSMRRR, the CCC Act, the GOSAC Award or GOSAC Agreement. 

105    It was submitted that reg 23 of the PSMRRR did not confer any right to payment upon a surplus employee.  It merely specified the rate of payment to be used where an employee whose office had been abolished was entitled to payment until his or her resignation, redeployment or other arrangement had effect under the PSMRRR.  The regulation was intended to apply in circumstances where the PSMRRR provided for an entitlement to payment.  Examples given were the transitional payments under regs 9 and 19 and voluntary severance payments under reg 20.  None of these applied to Mr Ross. 

106    The CCC then made submissions about the appellant’s alternative contention based upon s180 of the CCC Act.

The Submissions of the Minister at First Instance

107    It was submitted the PSMRRR had no application to Mr Ross because he was employed under a fixed term contract as contained in reg 4(2)(d).  This was the combined effect of s64(1)(b) of the PSMA and s179(2) of the CCC Act. 

108    The Minister argued the CCC, by its letter dated 1 September 2006, advised Mr Ross that his employment was at an end.  If that was so Mr Ross was then entitled to seek employment in the public service pursuant to s180(3) of the CCC Act, as immediately prior to his appointment by the CCC he had been a permanent public service officer.

109    Counsel submitted:

(a) By 1 September 2006 there had been a cessation of the employment of Mr Ross with the CCC (T32).

(b) The use of the past tense in the word “was” in s180 of the CCC Act signified that the person had been a permanent officer but they were not so after their appointment to the staff of the CCC.  There was no recognition that the office the person previously occupied “somehow continues with them” (T36).

(c) Section 180(3) of the CCC Act has nothing to do with redundancy but is a security mechanism by which those who take up “a term appointment” with the CCC are given a bridge by which they can again access employment with the public sector (T37).

(d) Although a person has the entitlement set out in s180(3) they need to do something to action that entitlement.  Mr Ross had now done that (T37).

(e) If the employment of Mr Ross with the CCC came to an end either on 1 September 2006 or in January 2006, he had no employment relationship with anyone and nobody had any obligations to pay him (T38).  This is because the only body responsible for redeployment and payment to surplus employees under the PSMRRR is the employing authority at the relevant times.  The only occasions under the PSMRRR when there is a departure from that is when registration occurs and there is redeployment to another agency (T38).

(f) Despite the contents of s67 of the PSMA, it is a question of fact as to whether an employment relationship has ended or not.  The acceptance of the employment with the CCC was incompatible with the status of Mr Ross as a permanent level 7.3 public service officer (T39).

110    It was argued that redeployment under the PSMRRR was a different process from that contained in s180(3) of the CCC Act.  They were mutually exclusive courses of action, so that once an appointment was made under s180(3) of the CCC Act, redeployment or voluntary severance under the PSMRRR was no longer available to any surplus employees.  Accordingly, if Mr Ross was ever entitled to the benefits available under the PSMRRR, he lost them upon his acceptance of the offer of employment made by the DPC in accordance with s180(3) of the CCC Act.  Accordingly reg 23 of the PSMRRR had no application to Mr Ross. 

111    It was also argued that if the employment of Mr Ross came to an end on or about 1 September 2006, any entitlements under the PSMRRR ceased.  He would not thereafter be an “employee” within the meaning of that term for the purposes of the PSMA and the PSMRRR. 

Analysis of the Appellant’s Claim

112    I have set out above the relief the appellant sought as contained in the application and the Memorandum.  In my opinion however the appellant did not specify with great clarity the source of the entitlement.  The appellant did not suggest there was any element of “equity” or “fairness” which supported the claim, via s26 of the Act.  The claim was grounded on the terms of Mr Ross’s contract and the PSMRRR.  From the submissions I have referred to it seems the appellant asserted:

(a) Mr Ross had, under reg 4AA of the PSMRRR, been entitled to 12 weeks’ notice by the CCC, from 1 September 2006.

(b) Mr Ross was entitled to be registered under the PSMRRR and redeployed within that scheme.

(c) Until redeployed Mr Ross was entitled, based on reg 23 of the PSMRRR, to be paid a salary at a level 9.1.

113    The appellant did not make it clear how it was asserted Mr Ross could be accommodated or have rights under the PSMRRR when:

(a) His employment with the CCC ended on 1 September 2006.

(b) He had accepted employment with the DPC on 14 February 2007.

114    With respect to (b) no submissions were made about the orders which the Arbitrator could or should make to unravel  these facts and somehow make Mr Ross fit within the PSMRRR.

The Arbitrator’s Reasons for Decision

115    The Arbitrator reserved her decision and published her reasons for decision on 20 March 2008.

116    The Arbitrator commenced her reasons by quoting in full the Memorandum and the Statement of Agreed Facts and Documents.  The Arbitrator then summarised the evidence of Mr McLaughlan and Mr Volaric.  The Arbitrator next quoted from the letter offering employment to Mr Ross by the CCC dated 22 November 2004. 

117    There was then a section of the reasons headed “The Statutory Scheme – The Public Sector Management Act 1994”.  The Arbitrator quoted the preamble to and s64-s67 of the PSMA.  The Arbitrator said that in summary appointments under s64 of the PSMA were:

(a) For an indefinite period (permanent officer) or for a term not exceeding five years.

(b) To a level.

(c) To a vacant office, post or position.

118    The Arbitrator then considered the status of Mr Ross prior to his employment to the CCC.  The Arbitrator said it was clear Mr Ross was appointed as a permanent public 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.  The Arbitrator then referred to the engagement by Mr Ross with the “Royal Commission” and concluded that he remained a permanent public service officer during and afterwards. 

119    The Arbitrator next turned to the CCC Act.  Sections 178 and 179 were referred to and s180 quoted.

120    At [26]-[30] the Arbitrator reasoned as follows:

“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 PSM 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. …” (emphasis in original)

121    Relevantly at [32] and [33] the Arbitrator then said:

“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.” (emphasis in original)

122    The Arbitrator then referred to the issue of whether Mr Ross was still appointed to the office, post or position he had held as a permanent officer in the Department of Justice ([34]).  The Arbitrator said that if none of the circumstances in s67 of the PSMA applied to Mr Ross he would still be appointed to that office within the Department of Justice.  The Arbitrator said that if that was so it would be expected that his engagement by the CCC would be a secondment under s181 of the CCC Act and not an appointment for five years under s179 of the CCC Act.  At [36] the Arbitrator said that 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”.  The Arbitrator referred again to the appointment of Mr Ross under s179 of the CCC Act and said at [40] that “during that appointment, he was not appointed under Part 3 of the PSMA.  Therefore he was not a permanent public service officer during that appointment”.  The Arbitrator reasoned it was 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 ([41]).  He therefore had no position to return to.  The Arbitrator said that if Mr Ross retained permanent officer status and the position he had with 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 an equivalent level as that provided for in s180(3) of the CCC Act would be unnecessary ([41]). 

123    The Arbitrator concluded [41] by saying:

“Alternatively, he still holds that position and is entitled to return to it.  As noted above, I think this is highly unlikely.”

124    The next heading of the reasons was: “Is Mr Ross Eligible for Redeployment?”.  At [42] the Arbitrator said:

“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.”

125    In the next paragraph the Arbitrator said that even if that was not so and if Mr Ross was not able to return to the position he held within the “Department of Justice”, his eligibility for redeployment would need to be considered under the PSMRRR.  The Arbitrator then considered whether the exclusion in reg 4(2) of the PSMRRR applied to Mr Ross.  The Arbitrator concluded it did because Mr Ross was not a permanent officer while engaged by the CCC and was employed under a fixed term contract of employment.

126    On this issue the Arbitrator concluded at [56]:

“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.”

127    The Arbitrator went on to consider the alternative argument of the respondent about consultation with Mr Ross on the operation of s180(3) of the CCC Act.  The Arbitrator set out the relevant issues but concluded that as they had not been canvassed, the parties could make additional submissions.  This occurred and the parties filed supplementary written submissions.  It is not necessary to summarise these.  In turn the Arbitrator published supplementary reasons for decision which are also not necessary to refer to, to dispose of the appeal.  The reasons given were in support of paragraph 1 of the order which was issued on 11 June 2008. 

The Order

128    The order which was made was that the Arbitrator:

“1. Declares that the principles the Minister ought to consider in appointing a person under s 180(3) of the Corruption and Crime Commission Act 2003 (WA) 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.

2. Orders that the matter otherwise be dismissed.”

The Grounds of Appeal

129    In Schedule A to the notice of appeal were set out the “Grounds for Appeal”.  These were:

“The Public Service Arbitrator made an error of law in her decision dated 20 March 2008 wherein she made a finding that the Public Sector Management (Redeployment and Redundancy) Regulations - "PSM (RR) Regulations" did not apply to the application of s. 180(3) Corruption and Crime Commission Act 2003 with respect to the return of Mr Ross to the public service:

Particular 1:

The finding was an error of law because the Public Service Arbitrator failed, in spite of the Appellant's submissions on point, to consider that Part 6 Public Sector Management Act 1994 - redeployment and redundancy of employees, applied to organisations, like the Corruption and Crime Commission, and their employees.

Particular 2:

The finding was an error of law because the Public Service Arbitrator misconstrued the application of regulation 4(2(d) PSM (Redeployment and Redundancy) Regulations, when the Regulations themselves did not identify specifically excluded agencies or organisations within the meaning of s. 94 Public Sector Management Act 1994.

Particular 3:

The Public Service Arbitrator's interpretation of regulation 4(2(d) [sic] PSM (Redeployment and Redundancy) Regulations was not authorised by s. 94(1) itself.

Particular 4:

The finding was an error of law because the Public Service Arbitrator misdirected herself over the application of s. 179 Corruption and Crime Commission Act 2003 in order to conclude that PSM (RR) Regulations did not apply with respect to the operation of s. 180(3) Corruption and Crime Commission Act 2003.

The Public Service Arbitrator made an error of law in her decision dated [sic] wherein she made a finding in relation to s. 180(1) Corruption and Crime Commission Act 2003 which in effect excluded Mr Ross's right to consultation, and to notice [inter alia] under regs 4AA, and 4A PSM (RR) Regulations.”

Section 49(2a) of the Act

130    The schedule to the notice of appeal also asserted an appeal should lie even though the decision appealed against was a “finding” for the purposes of s49(2a) of the Act.  At the hearing neither the CCC nor the Minister asserted that leave was necessary and at the hearing the appellant accepted, correctly, that this was so.  There is therefore no need to refer to this part of the schedule.

Jurisdictional Point

131    Counsel for the CCC brought to the attention of the Full Bench a jurisdictional issue.  This was based upon s80G of the Act which is as follows:

“(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).”

132    In turn s80E(2) of the Act is as follows:

“(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.”

133    The CCC expressly said that it did not take a position on the question of jurisdiction other than to seek that the Full Bench rule on it.  Submissions were then provided for the benefit and assistance of the Full Bench.  This was quite proper and appreciated.  The Minister did not address the question of jurisdiction and in particular did not assert the Full Bench did not have jurisdiction to determine the appeal.

134    In Health Services Union of Western Australia (Union of Workers) v Director General of Health (2007) 87 WAIG 737 the Full Bench comprehensively discussed the construction and application of s80E(2) and s80G(2) of the Act.  In the present case it is simply necessary to refer to the terms of s80E(2).  The appellant’s claim was clearly not within s80E(2)(b).  Section 80E(2)(a) applies when the claim is about the allocation of the matters there specified to the office occupied by the government officer.  The present claim of the appellant was not of that character.  It did not dispute the allocations to the office held by Mr Ross but whether under the PSMRRR he was entitled to redeployment or payment of salary at a level 9.1.

135    Accordingly s80G(2) does not prevent the appellant from appealing to the Full Bench under s49 of the Act.

Extension of Time

136    The appeal was not instituted, by the filing of the notice of appeal, within 21 days as required under s49(3) of the Act.  It was filed some 15 days out of time.  The appellant applied in writing for an extension of time within which to institute the appeal.  That application set out reasons in support of leave being granted.  Neither the CCC nor the Minister opposed the application.  The Full Bench said at the hearing of the appeal that the extension would be granted and an order would be published to that effect in due course.

The Submissions of the Appellant on Appeal

137    The appellant contended the appeal was about whether or not the PSMRRR applied to CCC employees, when they had been public service officers with permanent status before they took up appointment with the CCC.  It was submitted that s180(3) of the CCC Act did not override the force of the PSMRRR which emanated from s93 and s94 of the PSMA. 

138    Ground 1 particular 1 asserted that the Arbitrator did not consider the operation of the PSMA as a whole.  It was submitted that s94 applied to the CCC as a non-SES organisation unless it was excluded by the PSMRRR.  The PSMRRR did not so exclude the CCC and nor did any other act or regulation.  The appellant submitted the Arbitrator erred at [23]-[33] of her reasons because she there decided that s179 and s180 of the CCC Act provided a basis for excluding the operation of the PSMRRR.  It was submitted the Arbitrator ignored the breadth of the preamble to the PSMA which was quoted in her reasons and set out above.

139    It was also submitted the Arbitrator ignored the structural arrangements of the PSMA which provided “universal or discrete applications of process or procedure to the public sector at large, and to [the] public service alone in line with the” preamble.  Examples were provided in the appellant’s written submissions.

140    It was submitted the Arbitrator had erred in preferring “the implications arising from the subtle construction of s180” of the Minister.  Section 180(1) of the CCC Act was not limited to preserving only service related benefits or entitlements.  The Arbitrator misconstrued the reference to “as if” in s180(1) of the CCC Act.  In the relevant context “as if” merely signified that a break in service did not destroy the entitlement.  The entitlement was preserved pending the officer’s return to a public service position “immediately after” leaving the CCC.  The appellant contended “Mr Ross had already a vested right – permanency before he was to be returned to the public service.  The right vested on appointment to the CCC”.

141    With respect to particular 2 to ground 1 the appellant submitted the Arbitrator had erred at [42]-[47] and [54]-[57] of her reasons.  In these paragraphs the Arbitrator repeated the error of dealing with s180 of the CCC Act independently of the PSMA and the PSMRRR. 

142    It was next submitted that the Arbitrator erred in her construction of reg 4(2)(d) and in particular in deciding that Mr Ross was not a permanent officer for the purpose of the regulation.  It was submitted the CCC Act including s180(3) retained the right of Mr Ross to permanency in the public service. 

143    The appellant said the arguments about particular 1 also supported particular 3 to ground 1.

The Submissions of the CCC on Appeal

144    The CCC submitted the Arbitrator erred in law in deciding Mr Ross was excluded from the application of the PSMRRR because of reg 4(2)(d). 

145    The CCC maintained the position and submissions articulated at first instance.  Counsel submitted that permanent status as a public service officer could only be lost in the circumstances set out in the PSMA or by another piece of legislation.  It was reiterated that the circumstances of Mr Ross did not fit within s67 of the PSMA.  In particular his appointment to the CCC was not an appointment or transfer under Part 3 for the purpose of s67(f) of the PSMA.  It could not be so because the CCC was precluded by s179(3) of the CCC Act from appointing staff under Part 3 of the PSMA.  It was also emphasised there was no evidence of Mr Ross resigning his office and the “Department of Justice” accepting his resignation in writing so as to satisfy s67(e) of the PSMA.

146    It was argued that Mr Ross retained the status of a permanent officer notwithstanding his employment by the CCC and so the exclusion in reg 4(2)(d) of the PSMRRR did not apply. 

147    In its outline of submissions the CCC also said:

“71 This conclusion is further supported by a purposive interpretation of regulation 4(2)(d).  In the case of permanent officers, the evident purpose of the PSMRR Regulations is to provide for redeployment and voluntary severance benefits (including provisions for additional notice of termination) in circumstances where the office held is abolished.  This is to ensure that an appointment as permanent - i.e. an appointment as a 'career public servant' - is meaningful.  If such provisions did not exist, permanent appointments could be undermined by the act of abolishing the office held by a public servant from time to time.  This evident purpose applies equally to [an] office held by way of contract with a public sector employer (as is the case here) following an appointment to permanency as a public servant.

72 It is not to the point that a 'right of return' is provided for all employees of the first respondent under section 180(3) of the CCC Act.  This is because the 'right of return' does not provide all of the benefits available to a redundant officer that would be available under the PSMRR.  A permanent public servant should not be penalised in respect of redundancy benefits by having chosen to accept appointment with the first respondent.”

The Submissions of the Minister on Appeal

148    Counsel for the Minister expressed some difficulty in understanding precisely what orders the appellant had sought and was still seeking (T21).  The Minister accepted however that subject to the qualifications and conditions contained in reg 4(2) of the PSMRRR, the PSMRRR applied to employees of the CCC.  The Minister emphasised that the Arbitrator did not find otherwise. 

149    The Minister said it was not disputed that the employment of Mr Ross with the CCC was terminated at the latest on or about 1 September 2006.  It was submitted that Mr Ross then had no employment in the public sector even though the CCC continued to pay him at the public service level 7.3 rate.  When his employment with the CCC ceased, Mr Ross became eligible to exercise the right contained in s180(3) of the CCC Act. 

150    It was submitted that the application of the PSMRRR was conditional upon a person having the status of an “employee” under the PSMA.  As from 1 September 2006 Mr Ross did not have that status and therefore was outside the scope of the PSMRRR.

151    Also, the PSMRRR had no application to Mr Ross as s180(3) of the CCC Act is conditional upon a person ceasing to be an officer of the CCC, whereas the PSMRRR only operates where there is an employment relationship on foot.  The Minister contended the redeployment provisions of the PSMRRR and s180(3) of the CCC Act have “different criteria” and “don’t fit” together (T27).  Reference was made to the difference between s180(3) and reg 13 of the PSMRRR (T26).

152    Additionally, once Mr Ross accepted an appointment pursuant to s180(3) of the CCC Act on 22 February 2007, the PSMRRR ceased to have any possible application to him.  It was in this sense the Arbitrator found, on the facts, that the PSMRRR did not apply to Mr Ross.  This was what was meant by the Arbitrator in her conclusion at [42]; and it was clearly correct.  It was also contended that the use of the word “duress” by Mr Ross in his email which accepted the employment offer from the DPC, was nothing more than an expression of not being happy about the situation (T26).

153    The Minister rejected the appellant’s contention that s180(1) of the CCC Act evinced an intention to preserve the permanent public service status of a person like Mr Ross who was appointed to the staff of the CCC.  It was submitted the plain words used in the subsection were to the contrary.  The Minister argued that s180(1) contemplated service based entitlements to be preserved as the entitlements of an officer of the CCC, not as a public service officer. 

154    It was also submitted that if the status of a permanent public service officer was preserved, then s180(3) would be unnecessary, as the retention of the status would carry with it the right provided for.  It was submitted that if an officer was intended to retain his or her public service status on appointment to and the cessation of employment with the CCC, this could have been clearly stated.  Instead the wording contained a recognition that the prior employment had been terminated.

155    The Minister also argued that the circumstances described in s67 of the PSMA were not the only ways in which, as a matter of law and fact, a permanent public service officer could lose that status (T22).  For example the taking up of employment, inconsistent with the performance of their duties as an officer ended that status whether or not there was a resignation.  Counsel said if someone walked out of a public service position and took up employment with “BHP Billiton” without resigning, they could not expect to come back some years later and seek their former position because they did not resign (T21).

156    With respect to the second ground of appeal it was submitted that as the PSMRRR could not apply to Mr Ross on the facts or as a matter of law, the consultation and notice required by regs 4AA and 4A were not required to be provided to Mr Ross.

The Appellant’s Reply

157    The appellant’s industrial officer, in answer to the question by counsel for the Minister as to what orders were sought, said they were as contained in the Memorandum (T33).

158    The appellant’s industrial officer submitted, in effect, that if a public service officer left their position and did not return, then their employment would not be terminated nor their office vacant until disciplinary action (presumably under Part 5 of the PSMA) was taken by the employer (T32).

159    The appellant also submitted that Mr Ross’s appointment to the CCC came within s64(7) as the CCC was an “organisation”; and this subsection was consistent with Mr Ross not losing his “office, post or position” by his appointment to the CCC (T31-32).

The Terms, Argument and Analysis of the Grounds of Appeal

160    The grounds of appeal were not drafted with great clarity but were not attacked on this basis by either the CCC or the Minister.  The first ground focuses upon the Arbitrator’s finding that the PSMRRR “did not apply to the return of Mr Ross to the public service”.  Particulars 1, 2 and 3 asserted there was an errant consideration or lack of consideration by the Arbitrator of Part 6 of the PSMA and in particular s94.  In my opinion this is misconceived.  Section 94 empowers the Governor to make regulations of the type there described.  These regulations are the PSMRRR.  The question before the Arbitrator was whether the CCC, with respect to Mr Ross, was obliged to act in accordance with the PSMRRR; not the interaction between s94, the other sections of Part 6 of the PSMA (s93 and s95) and the PSMRRR, with respect to Mr Ross.  In any event as pointed out by the Minister, the Arbitrator did not decide that Part 6 of the PSMA did not apply to organisations like the CCC and their employees.  Particulars 1-3 of ground 1 cannot be sustained. 

161    Particular 4 asserts the Arbitrator misdirected herself over the application of s179 of the CCC Act so as to conclude that the PSMRRR did not apply to the operation of s180(3) of the CCC Act.  The way in which this particular (and perhaps all of the particulars in ground 1) was argued was not limited to its terms by the industrial officer for the appellant, and neither counsel for the CCC nor the Minister attempted to so restrict him.  At least particular 4 and also paragraph two were argued upon the more liberal basis that the Arbitrator erred generally in deciding the PSMRRR did not apply to Mr Ross. 

Summary of Conclusions

162    As has been set out a major battleground in the appeal was whether Mr Ross lost his status as a permanent public service officer when he was appointed to the CCC.  In my opinion however neither the decision of the Arbitrator nor the appeal turns upon the resolution of this question.  This is because, as a matter of law and fact, even if he retained this status, the PSMRRR did not, at the time of the hearing, provide Mr Ross with any entitlement to be paid at level 9 or to be redeployed.  Simply, this is because as submitted by the Minister:

(a) At that time the CCC was not the “employing authority” of Mr Ross.

(b) In any event Mr Ross was by then employed by the DPC as a consequence of  his entitlement under s180(3) of the CCC Act.

163    As I will set out later, I have some difficulties with the reasoning of the Arbitrator about the “permanent officer” point.  It is not necessary or desirable however to decide that question in the present appeal.

164    In my opinion the following conclusions apply:

(a) The Arbitrator did not err in deciding:

(i) The redeployment provisions of the PSMRRR did not apply to Mr Ross after the cessation of his employment with the CCC.

(ii) Regulation 23 of the PSMRRR did not entitle Mr Ross to continue to be paid at level 9 after the cessation of his employment with the CCC.

(iii) Section 180(1) of the CCC Act did not entitle Mr Ross to continue to be paid at level 9 after the cessation of his employment with the CCC.

(b) Section 180(3) provided for Mr Ross to be appointed to an office in the public service at the level he held before his appointment to the staff of the CCC.

(c) This occurred on 23 February 2007.

(d) Regulations 4AA and 4(2) of the PSMRRR applied to Mr Ross when he was employed by the CCC and before his position was abolished or his employment terminated.

(e) The CCC did not act in accordance with regulations 4AA and 4A(2) of the PSMRRR.

(f) The Arbitrator erred in failing to so find.

(g) Submissions should be made on the impact of this to the disposition of the appeal.

165    I will now set out my reasons for reaching these conclusions.

The Application of the PSMRRR Redeployment Provisions to the CCC and Mr Ross

166    As I have set out, the majority of the argument on appeal was focused upon whether the Arbitrator was correct to decide that Mr Ross was not covered by the PSMRRR because once he had been appointed to the staff of the CCC he was no longer a “permanent officer” for the purposes of reg 4(2)(d) of the PSMRRR.  Whether or not he was still a permanent officer after the cessation of his employment with the CCC did not however determine whether the CCC then had obligations to Mr Ross under the PSMRRR. 

167    It should be remembered that the Arbitrator decided at [42] that the PSMRRR had no application to Mr Ross.  This finding brings into focus the submissions made by the Minister about the application of the PSMRRR to the facts.

168    As I have said in my analysis of the PSMRRR above, the regulations which provide redeployment entitlements rely upon an employee of an employing authority being “registered”.  Regulation 11 contemplates a situation where an employee’s position has been abolished, or they are surplus to requirements, but they remain the employee of the employing authority. 

169    This was not the situation with respect to Mr Ross and the CCC, as from at the latest 1 September 2006.  It is not in dispute that as from that date at the latest the CCC treated the employment of Mr Ross at an end and he accepted this.  The submissions of the appellant’s industrial officer at first instance and on appeal acknowledged this.  Accordingly as a matter of law and fact, from that time the PSMRRR could not apply to the CCC as the employing authority of Mr Ross as he was not then its employee.  The CCC had been entitled to terminate the employment of Mr Ross because the position he occupied had been abolished.  Unlike at least some other organisations within the public sector the CCC was not prohibited from doing so.

170    I also accept the correctness of the last sentence of the Arbitrator’s reasons at [42].  This is because once Mr Ross was appointed to a position in accordance with s180(3) of the CCC Act, on 23 February 2007, the PSMRRR redeployment provisions could not have applied to him in any event.  He did not then require any redeployment.  

Entitlement to Payment at Level 9

171    I accept the submission of counsel for the CCC that reg 23 of the PSMRRR does not of itself provide any entitlement to payment.  As I have said earlier it provides for a level of payment if there is an entitlement to payment under other regulations in the PSMRRR.  Examples identified by counsel for the CCC at first instance were regs 9, 19 and 20.  None of these applied to Mr Ross.

172    I also do not think that s180(1) of the CCC Act supports the argument of the appellant that after the cessation of the employment of Mr Ross with the CCC, he had an entitlement to be paid at level 9.  This is because it was neither a right that existed at the time of his appointment to the CCC nor one which was accruing as at that time and could therefore be “retained” under the subsection.

The Purpose, Effect and Application of s180(3) of the CCC Act

173    In my opinion it is because the redeployment provisions of the PSMRRR do not apply to someone in the position of Mr Ross that makes the enactment of s180(3) of the CCC Act understandable.  Mr Ross had been a permanent officer.  When his employment with the CCC ended it was not of course his employing authority.  Accordingly the redeployment provisions of the PSMRRR did not apply.  Mr Ross could however return to an office at his former level of classification if he exercised the entitlement under s180(3) of the CCC Act.  The DPC engaged in the relevant process to ensure this occurred.  Although Mr Ross was not happy with this, he accepted an appointment with the DPC on 23 February 2007.  This completed the entitlement and process provided for in  s180(3) of the CCC Act. 

Applicability to CCC and Mr Ross of the PSMRRR Regulations 4AA and 4A(2)

174    In my opinion however there are two regulations of the PSMRRR which did apply to the employment of Mr Ross with the CCC before the abolition of his office, post or position, and termination of his employment.  The first is reg 4AA.  It is plain that the CCC did not give Mr Ross the notice to which he was entitled under reg 4AA.  Secondly reg 4A(2) of the PSMRRR could have applied to Mr Ross.  This is because at the time the CCC decided to abolish his position, Mr Ross was an employee of the CCC which in turn was an organisation and an employing authority under reg 4A(2) of the PSMRRR.

175    Paragraph 2 of the appeal asserts the Arbitrator erred in failing to make findings that these regulations applied.  In my opinion this is established.  I do not however think that regs 4A(3) and 4A(4) of the PSMRRR could have applied to the employment of Mr Ross with the CCC.  This is because the payment referred to in reg 4A(3) is contingent upon the acceptance of a severance offer under the specified regulations.  Severance was not however consistent with the type of employment that Mr Ross had with the CCC and the way in which his contract could be terminated by the CCC. 

The Status of Mr Ross as a Permanent Officer

176    Given the conclusions I have reached it is not necessary to decide whether the Arbitrator erred on this point and in my opinion it is preferable not to do so.  This is not to say however that I necessarily endorse all of the Arbitrator’s reasoning on this point.  I think it preferable not to determine the question as, in part, the parties did not make submissions on all issues that seem to me to be relevant to the question.  In addition it has not been sufficiently demonstrated in my opinion that it is an issue which has real consequences, given the entitlements set out in s180(1) and (3) of the CCC Act.   Also, to the extent that there is a question of fact involved in answering the question in any particular case, relevant evidence was lacking in this application.  That is because there was no evidence of any communication between Mr Ross and the “Ministry of Justice” about any consequences of his being appointed to the staff of the CCC to his “position” and permanent public officer status.  Also it would or might have been relevant to hear what the “Ministry of Justice” did about the office of Mr Ross, and what it thought about his employment status.

177    In case the matter is argued in another application/appeal I will mention however some aspects of the Arbitrator’s reasoning that have caused me difficulty, as well as other issues that I think need to be addressed before the question could be determined.

178    The difficulties that I presently have with the Arbitrator’s reasoning are these.

179    At [27] after referring to s179-s181 of the CCC Act, the Arbitrator said “an officer of the staff of the CCC is not a public service officer”.  This may not necessarily be the effect of s179 of the CCC Act.  Section 179(3) provides that the staff of the Commission are not to be “employed under Part 3” of the PSMA.  In my opinion this is not the same thing as saying an officer of the CCC is not a public service officer.  It simply means that a person cannot become a public service officer because or as a consequence of appointment as a member of staff of the CCC. 

180    In the same paragraph the Arbitrator said her conclusion was confirmed by s180(1) of the CCC Act.  Again, with respect, I do not accept this.  Section 180(1) refers to “service”.  It provides that for the purposes specified, “service” as an officer of the Commission is “as if” it was a continuation of “service” as a “public service officer”.  Section 180(1) indicates that whilst an officer of the Commission, a public service officer is not providing service as a “public service officer”.  This does not necessarily mean however that the person is no longer a public service officer.

181    At [30] the Arbitrator said that if the legislature intended public service officers to retain their status as such after taking up appointments with the CCC it could have easily so provided.  Whilst this is so it may equally be said that the legislature could have but did not expressly say that a permanent public service officer loses that status upon appointment to the staff of the CCC.  In my opinion this argument may have more force than the one followed by the Arbitrator.  This is because the legislature could be expected to make it clear if a permanent public service officer were to lose that status by virtue of an appointment to the staff of the CCC; which is in itself part of the public sector. 

182    In my opinion the observations of Finn J in Buck v Comcare (1996) 66 FCR 359 at 364-5 may be apposite.  His Honour was considering a section of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which permitted the suspension of an employee’s statutory right to compensation.  His Honour said:

“That right does not fall into the category of “common law” rights which traditionally have been safeguarded from legislative interference etc in the absence of clear and unambiguous statutory language: cf J J Doyle QC, ‘Common Law Rights and Democratic Rights’ in P D Finn (ed), Essays on Law and Government, Vol 1, 158ff.  Yet it is a right of sufficient significance to the individual [sic] in my view, that, where there may be doubt as to Parliament’s intention, the courts should favour an interpretation which safeguards the individual.  To confine our interpretative safeguards to the protection of ‘fundamental common law rights’ is to ignore that we live in an age of statutes and that it is statute which, more often than not, provides the rights necessary to secure the basic amenities of life in modern society.”

183    By analogy a permanent public service officer has significant status and rights by virtue of that appointment.  Where, as is the case, the CCC Act does not clearly provide that the appointment is lost upon appointment to the staff of the CCC, in my opinion the preferable construction may well be that this was not the legislative intent.  This can be contrasted to the terms of s58, s103 and s104 of the PSMA, referred to earlier, which necessarily involve or contemplate the cessation of the prior appointment to the public sector. 

184    The Arbitrator considered but did not decide whether an officer who does not resign their position could retain it if they took up employment elsewhere.  The Arbitrator said it was “highly unlikely” that this was so but the last two sentences in [41] make it clear the question was not decided.  With respect I do not find it easy to understand the reasoning contained in [40] of the Arbitrator’s reasons.  At [41] the Arbitrator suggests the appointment of Mr Ross to the staff of the CCC “in some other way caused the vacancy of his permanent position” within the Department of Justice so there was no position to return to.  The Arbitrator did not explain how this was so on the facts and consistently with the PSMA and in particular s67.

185    The Arbitrator, understandably, referred to and relied upon s180(3) of the CCC Act to support her conclusions on the permanent officer point.  At [29] the Arbitrator said the use of the word “was” in s180(3)(a) confirmed that a public service officer did not continue to be such during the appointment to the staff of the CCC.  In my opinion, with respect, this is not correct.  Although the Minister at first instance promoted this argument (T36), it was specifically eschewed at the hearing of the appeal (T27).  As submitted by the CCC at first instance, the reference to “was” is because the paragraph refers to the status of the officer of the CCC before their appointment.  Of necessity therefore the past tense is used.

186    As I have said, in my opinion the submissions of the parties did not address all issues relevant to the permanent officer question. The following are amongst the matters that I would like to be addressed if the question were to resurface.

187    Firstly, s180 of the CCC Act may be seen as facilitating the mobility of public service officers across the public sector.  They are not discouraged from doing so because they do not lose rights and entitlements.  It is an example of what G J McCarry in Aspects of Public Sector Employment Law, Law Book Company, 1988 at p7 referred to as “‘mobility’ provisions facilitating the movement of staff between agencies without the loss of all accrued benefits or the need to ‘start afresh’”.  At the same page McCarry refers to the “most famous preservation section”, being s84 of the Constitution.  McCarry summarised that this “preserved the ‘existing and accruing rights’ of certain public servants transferred to the new Commonwealth from the States”.  It could be relevant to consider if s180 of the CCC Act and like provisions in Western Australian statutes originate from s84 of the Constitution and if so whether the jurisprudence on the meaning of the section is relevant.  (See for example Pemberton v The Commonwealth (1933) 49 CLR 382 per Rich J and Dixon JJ at 388; Bradshaw v The Commonwealth (1915) 36 CLR 585 per Isaacs J at 591; Schedlich v The Commonwealth (1926) 38 CLR 518 per Rich J at 521; The State of New South Wales v The Commonwealth (1908) 6 CLR 214 per Griffith CJ at 228; Bond v The Commonwealth (1903) 1 CLR 13 per Griffith CJ at 23; Le Leu v The Commonwealth (1921) 29 CLR 305 per Higgins J at 314).  Possibly relevant is that the High Court held that s84 of the Constitution retained a person’s right not to retire or be removed from office on the basis of age (unless incapacitated) which had been provided by South Australian law at the time of a transfer (Le Leu per Knox CJ, Gavan Duffy, Rich and  Starke JJ at 312, Higgins J at 314).

188    Secondly the submissions did not address the relevance, if any, of the same scheme also applying to the Commissioner, the Parliamentary Inspector and his staff under the sections of and the schedules to the CCC Act referred to above.

189    Thirdly there was insufficient attention given to the meaning of “accruing and existing” in s180(1) of the CCC Act.  Is the expression compendious or not?  Does it mean both must apply or are they expressed in the alternative? (See for example Re Peat Resources of Australia Pty Ltd; ex parte Pollock (2004) 181 FLR 454 per Malcolm CJ at [23]-[54], Steytler J at [98]-[101] and McKechnie J at [112]-[115] and Home Building Society Ltd v Pourzand [2005] WASCA 242 per McLure JA at [39]-[40], [48]).

190    Fourthly, I think more attention would need to be addressed to the intention of the legislature in using schemes like this, in the CCC Act and other statutes, as part of the regulation of the employment of the public sector as a whole.

191    It was submitted by the Minister that the taking up of employment by a permanent officer with another employer was inconsistent with the continuation of their appointment as a public service officer.  I earlier mentioned the BHP Billiton example.  With respect I do not think the example is apposite.  This is because unlike BHP Billiton, the CCC is part of the “public sector” as defined by the PSMA as a “non-SES organisation”. 

192    During the hearing of the appeal the parties were asked whether the extrinsic materials about s179-s180 of the CCC Act provided any assistance to the resolution of the appeal.  None submitted they did.  I have now read the relevant second reading speech.  This provides no assistance.

193    The Explanatory Memorandum (EM) to the Corruption and Crime Commission Bill 2003 (WA) is somewhat ambiguous and of no clear guidance.  With respect to what was then clause 178 the EM said:

(a) It applied where an employee “transfers between the public service” and the CCC.

(b) The employee would continue to accrue rights as if a public service officer.

(c) If the employee was a permanent officer he or she would be “entitled to be reinstated as a public service officer” to at least the same level of classification previously held.

194    Whilst at one level this suggests that employment by the CCC does end a person’s appointment as a permanent public service officer, the language of s180 does not replicate what was said in the EM.  In addition the EM said of the staff of the Parliamentary Inspector that if they were “seconded” from the public service they could “retain and accrue all entitlements, including a right of return to the public service” (clause 209); and of the Commissioner and the Parliamentary Inspector that if they had been a public service officer they had a “right of return to an office” and they were entitled to retain all rights as if “service … is to be regarded as service in the Public Service”.  (Schedule 2, clause 5 and Schedule 3, clause 5).  The use of a variety of phrases, not in conformity to the legislation, may well mean the EM is of very limited if any assistance.

195    As mentioned at the hearing of the appeal, there are other statutes with similar provisions to s180 of the CCC Act.  Some of these also provide for the re-appointment of the person to an office under Part 3 of the PSMA but none seem to be in identical terms to s180(3) of the CCC Act.  Examples are s5AA of the Builders Registration Act 1939 (WA); s5E of the Electoral Act 1907 (WA), s10(5) of the Parliamentary Commissioner Act 1971 (WA); s13 of the Animal Resources Authority Act 1981 (WA); Schedule 1 clause 5(3) of the Auditor General Act 2006 (WA); s13(3) of the Commissioner for Children and Young People Act 2006 (WA); Schedule 7 clause 4 of the Environmental Protection Act 1986 (WA); s62(5) of the Freedom of Information Act 1992 (WA); Schedule 2 clause 4 of The Health Services (Conciliation and Review) Act 1995 (WA); s10(3) of the Inspector of Custodial Services Act 2003 (WA); s9(5) of the Law Reform Commission Act 1972 (WA); s17(4) of the Perth Theatre Trust Act 1979 (WA) and s7 of the Zoological Parks Authority Act 2001 (WA).  In the latter Act and in some others there is the proviso that the person must be “eligible to occupy an office”.  Whether and to what extent this reflects any different legislative purpose or effect is unclear.

196    Fifthly it could well be  significant that the entitlement in s180(3) is to the appointment to an “office under Part 3” of the PSMA.  It is not an entitlement to be appointed as a “public service officer”, for an “indefinite period” as a “permanent officer”.  The expression “to an office under Part 3” of the PSMA in my opinion includes the requirements of s64(3) of the PSMA.  As set out earlier this requires an employing authority to appoint a person to fill a vacancy in an “office, post or position”.

197    The Minister argued that the reference to the appointment to an “office under Part 3” necessarily included appointment as a permanent public service officer.  I have difficulty in accepting this.  This is because s64 of the PSMA distinguishes between the appointment or employment of officers and their appointment to an “office, post or position”. 

198    Additionally the entitlement under s180(3) is to the appointment to an office of a specified “level of classification”.  This fits with s64(2) of the PSMA; but it does not take account of s64(1), which in combination with s64(2), provides that an appointment can be for an indefinite period or a fixed term not exceeding five years.  If the permanent public service officer does not retain that status then their appointment under s180(3) could be to a position at the same level, but for a short fixed term after which they would not unless reappointed, be a public service officer.  There were no submissions on this point.

199    The Minister argued that the retention of permanent officer status was separately catered for by the secondment of staff under s181 of the CCC Act.  Section 181(6) provides however that such an arrangement is to be made by the CCC with the “relevant employing authority on terms agreed by the parties”.  It does not therefore cover the position of an appointment to staff of an employee where an employing authority does not make the arrangement.  The appointment to staff is a different process to that of secondment but this does not necessarily mean that in the former but not the latter permanent public service officer status is lost.

200    Sixthly there were no or insufficient submissions upon the place of Part 5 of the PSMA if a permanent public service officer, when employed by the CCC, retained their status as such.  Part 5 is about “Substandard performance and disciplinary matters”.  By s76(1) of the PSMA, Part 5 is to apply to all public service officers.  With respect to the staff of the CCC however, s179(4) gives the CCC the power to determine these and other matters.  (It is beside the point that by clause 9(1) of the CCCIA it has been agreed that Part 5 is to apply).  If therefore the CCC could decide that Part 5 did not apply to their officers, can it be said that those officers were still public service officers, even if they were permanent officers before their appointment?

201    Seventhly the entitlement under s180(3) does not, because of s180(3)(b), apply to a person who is dismissed from the CCC for substandard performance, breach of discipline or misconduct.  There were no or insufficient submissions upon the impact of this aspect of s180(3) upon the question of whether a staff member of the CCC retains permanent public service officer status.  If the s180(3)(b) circumstances exist there is no entitlement to appointment to an office.  If however the person has at all times remained a permanent public service officer, do they have a right by virtue of that status, to be provided with an “office” under s64 of the PSMA?  If so, what is the purpose of the exception within s180(3)(b) of the CCC Act?  It could be argued that on this basis s180(3) of the CCC Act makes it plain that a person who has become a staff member of the CCC does not retain their status as a permanent public service officer.  Additionally, the intention of the subsection could be to ensure that a person who has been dismissed from the CCC, as a part of the public sector, for reasons that could justify termination as a public service officer under the PSMA, are not entitled or required to be re-engaged as a public service officer.

Requirement for Additional Submissions and Minute of Proposed Orders

202    The parties did not make submissions upon what the Arbitrator should have done or the Full Bench should do if it was decided that regs 4AA and 4A(2) applied to Mr Ross whilst he was employed by the CCC, but the balance of the PSMRRR did not apply to Mr Ross and the CCC once his employment with that organisation ceased. 

203    In all the circumstances it is appropriate to receive additional submissions from the parties about the course that the Full Bench now ought to take including the orders to be made in the disposition of the appeal.  A Minute of Proposed Orders should issue requiring written submission with 14 days.  If any party submits some other course should apply they should make written submissions on that within three days of the publication of the minute.

BEECH CC:

204    I have had the advantage of reading in draft form the Reasons for Decision of His Honour, the Acting President and the Senior Commissioner.  The facts are set out in his Honour’s Reasons and I do not repeat them here.  The first paragraph of the appeal (which has 4 particulars) is against the finding that the Public Sector Management (Redeployment and Redundancy) Regulations 1994 (PSMRRR) “did not apply to the application of s.180(3)  Corruption and Crime Commission Act 2003 with respect to the return of Mr Ross to the public service”.  The reference to s.180(3) of the CCC Act is a reference to Mr Ross’s right to be appointed to an office under Part 3 of the PSMA of at least the equivalent level of classification as the office he occupied immediately prior to his appointment to the CCC.   Mr Ross accepted an appointment under s.180(3) in February 2007.

205    Prior to that date, the CCC had exercised its right under s.179(4) of the CCC Act to terminate Mr Ross’s employment.  This occurred at the latest on or about 1 September 2006.  From that date forward, although the CCC continued to pay him at the public service level 7.3 rate until Mr Ross’s appointment under s.180(3) occurred, from the date of his termination Mr Ross was not an employee of the CCC, and the CCC was not Mr Ross’s employer.  I agree with the conclusion of the Arbitrator at [42] that when the provisions of the CCC Act have done their work, he was no longer in a situation which enlivens the PSMRRR.  As Mr Andretich observed, upon doing so the PSMRRR ceased to have any application to Mr Ross as Mr Ross ceased to be an officer of the CCC.  The PSMRRR only operate when there is an employment relationship on foot.

206    Therefore, accepting that the PSMRRR applied to the CCC because it is an “organisation”, this does not lead to the conclusion that the Arbitrator erred with respect to the application of s.180(3) of the CCC Act with respect to the return of Mr Ross to the public service.  In my view the first paragraph of the appeal is not made out. 

207    The second paragraph of the appeal alleges an error of law was made by the Arbitrator when she excluded Mr Ross’s right to consultation and to notice under regulations 4AA and 4A of the PSMRRR.  It is agreed by those appearing before us that Mr Ross was employed under a contract of employment that has a fixed term and thus was caught by regulation 4(2)(a) of the PSMRRR.  As his Honour, the Acting President points out, this does not mean that the PSMRRR did not apply to Mr Ross; the exclusion in regulation 4(2) is only to redeployment or voluntary severance under the PSMRRR.  I join with the Acting President and the Senior Commissioner in concluding that regulations 4AA and 4A(2) of the PSMRRR, which do not deal with redeployment or voluntary severance, applied to Mr Ross when he was employed by the CCC.   Therefore the second paragraph of the appeal is made out.

208    I also respectfully agree with the Acting President, and for the reasons he expresses, that there is no provision of the PSMRRR that entitles Mr Ross to be paid at any particular level of employment.

209    It is not necessary in order to determine the appeal to decide whether Mr Ross remained a public service officer when he was employed at the CCC; in that circumstance I do not believe it necessary to consider that matter.

210    I agree that s.80G(2) does not prevent the appellant from appealing to the Full Bench under s.49 of the Act, and I also agree with the Minute to issue.

SMITH SC:

211    I agree with the conclusions reached by the Acting President in paragraph [164] of his reasons and for the reasons he gives.  In particular I agree that regs 4AA and 4A(2) of the PSMRRR applied to the CCC and the minute he proposes should issue.

212    The appellant and the first respondent argue that Mr Ross continued to retain his status as a permanent public service officer whilst he was employed by the first respondent.  Whilst I agree with the Acting President’s reasons and his finding that it is not necessary to determine this issue, I do not agree with His Honour’s observations that it is doubtful that a public service officer ceases to be a public service officer on appointment to the CCC.

213    Whilst it became common ground between the parties to the appeal that Mr Ross was engaged by the CCC under a contract of employment that had a fixed term within the meaning of reg 4(2) of the PSMRRR it is argued that the PSMRRR applied to Mr Ross when his position with the CCC was abolished.  The appellant and the first respondent argue that reg 4(2) did not exclude the operation of the PSMRRR as although Mr Ross was employed by the CCC under a contract of employment that had a fixed term, he was a permanent public service officer.

214    Regulation 4(2)(d) provides that an employee:

(d) who is employed under a contract of employment that has a fixed term and who is not a permanent officer; or …

is not eligible for redeployment or voluntary severance under these regulations

215    The second respondent argues that on the engagement of Mr Ross by the CCC Mr Ross ceased to be a permanent public service officer and thus a permanent officer for the purposes of reg 4(2) of the PSMRRR.

216    It seems that on being offered a position with the CCC Mr Ross did not tender a resignation from the office he held as a permanent level 7, year 3, public service officer, Forensic Case Management Team, Casuarina Prison, Offender Management with the Ministry of Justice prior to 22 November 2004.  Although Mr Ross had been appointed to this office on 15 December 1997 he had not worked in that position since his secondment on 23 September 2002 to the Royal Commission into Whether There Has Been Any Corrupt or Criminal Conduct by Western Australian Police Officers (Kennedy Royal Commission).  His secondment was formally extended to 30 January 2004.  He was offered employment by the CCC on Thursday, 29 January 2004 for an initial term from Monday, 2 February 2004 to Friday, 28 May 2004 (Attachment AH-AI to Statement of Agreed Facts) which he accepted.

217    The arguments of the appellant and the first and second respondents are set out in detail in the reasons of the Acting President and I need not repeat them.

218    After considering all of the arguments carefully and the relevant provisions of the CCC Act, the PSMA and the PSMRRR it is my view that Mr Ross’s status as a public service officer on his engagement with the first respondent was “in effect” suspended and not reactivated until he exercised his right to obtain a public service office pursuant to his right to elect to do so under s 180(3) of the CCC Act.  I have reached this view because he only had a conditional right to be reappointed to an office in the public service.  Unless the conditions were satisfied an employee of the CCC in the position of Mr Ross does not have a right of return to an office in the public service.  His or her status as a public service officer can only be reinstated on appointment to an office pursuant to s 180(3).  If at the end of his or her appointment to the CCC he or she was not so returned to a public service office they would cease to be a public sector employee for all purposes.  Not only would he or she cease to be an employee of the CCC but their status as a public service officer would not be reinstated. 

219    Whilst employed by the CCC Mr Ross was not a public service officer.  This is so because the terms of his appointment to the CCC were inconsistent with his appointment as a public service officer.  Firstly his service at all times with the CCC was not as a public service officer.  Secondly he had no right of absolute return to the public service as reappointment to an office in the public service was conditional on him not being dismissed by the CCC on grounds of substandard performance or breach of discipline.  Thirdly as Counsel for the second respondent points out he only had a right of return if he exercised his right to elect to return to the public service by being appointed to an office in the public service pursuant to s 180(3) of the CCC Act.  Fourthly Mr Ross’s accruing and existing rights were only preserved during his appointment to the CCC by the express statutory entitlement in s 180(1) of the CCC Act.  Although each of these matters when considered in isolation may not be considered to be determinative of this issue when considered collectively it is apparent for the reasons set out below that Mr Ross was not a public service officer whilst appointed to the CCC and he did not resume his status as a public service officer until he was appointed to a public service office under s 180(3) of the CCC Act.

220    Section 179(2) and (3) of the CCC Act provide that a member of staff of the CCC is not to be appointed for a term exceeding five years, is eligible for reappointment and is not to be employed under Part 3 of the PSMA.  Consequently during the term of appointment with the CCC Part 3 of the PSMA did not apply to Mr Ross.  On one view it could be said that if Part 3 did not apply to him whilst employed by the CCC he could not be a public service officer.  However that view is said to be incorrect as it is argued that separate to the appointment to the CCC Mr Ross retained his status as a public service officer even though he was not employed as a public service officer by the CCC.  It is my view however that he did not retain his status as a public service officer as that status could only be reactivated after his term of appointment ceased with the CCC and through an appointment pursuant to s 180(3) of the CCC Act.  On appointment to the CCC not only does a person who was a public service officer immediately prior to appointment to the CCC not provide service as a public service officer but they have no rights and entitlements as a public service officer whilst employed by the CCC for a fixed term except to the extent that he or she has accruing or existing rights.  These are rights that started to accrue or existed prior to appointment to the CCC and arise out of his or her service as a public service officer.  The status of an appointed public service officer under Part 3 of the PSMA in itself is not an accrued or existing right within the meaning of s 180(1) of the CCC Act.  If it were so then s 180(1) would not be necessary and would have no work to do.  The type of rights contemplated by s 180(1) must necessarily be related to service as leaving aside status, rights that arise out of continuous service are the only rights that are contemplated by s 180(1).  For example, if when a public service officer is appointed to the CCC for a fixed term of five years they had five years service as a permanent public service officer, then pursuant to s 180(1) of the CCC Act they would have accruing rights to long service leave which would crystallise at the completion of two years service with the CCC.  Similarly pursuant to s 180(2) of the CCC Act, a person who was appointed to the CCC under s 180(1) who is not at the time of appointment a public service officer and whose employment with the CCC ceases because they become a public service officer, their service with the CCC would also count as service for the purposes of long service leave, annual leave, other types of paid leave and benefits such as superannuation entitlements which may accrue on the basis of continuous service.  Other rights which arise out of past service such as a contractual right to payment of higher duties which arose out of service whilst employed as a public service officer would not be affected by s 180(1) of the CCC Act.  Whilst the right to payment could be enforced, the right to do so would lie against the body who was the employing authority of the person concerned when they were a public service officer and not against the CCC.  It is recognised however that such a consequence would also apply to a public service officer who is appointed to an office in another organisation that employs public service officers.

221    If I am wrong, it would follow that remaining a public service officer would necessarily include the right to continue to be dealt with by the CCC under the provisions of Part 3 of the PSMA.  However, this does not follow because of the express effect of s 179(3) of the CCC Act which provides that: “The staff are not to be employed under Part 3 of the Public Sector Management Act 1994.”  Further, if Mr Ross was to remain a public service officer whilst he was employed for a fixed term by the CCC the provisions of Part 5 (the procedures to be applied in respect of substandard performance and disciplinary matters) would apply to him because of s 76(1) of the PSMA.  However, to apply Part 5 of the PSMA would be contrary to the powers in s 179(4) of the CCC Act (which are untrammelled by the procedures in Part 5 of the PSMA insofar as s 179(4) empowers the CCC to choose its procedures) which provide that the power under s 179(1) to appoint staff includes “powers to determine remuneration and other terms and conditions of service of staff, to remove, suspend and discipline staff and to terminate the employment of staff”.  If a person who was a public service officer is appointed as a member of staff for a fixed term by the CCC and during that term the CCC takes action to dismiss the officer for substandard performance, breach or discipline or misconduct and if that person was at law still a public service officer, the CCC would be required to comply with the procedures set out in Part 5 of the PSMA.  In my respectful opinion, s 179 of the CCC Act in making it plain that staff of the CCC are not employed as public service officers it follows that the CCC as an employing authority is not the employing authority of a public service officer.  It is clear from Part 5 of the PSMA that Part 5 only applies to the employing authority of a public service officer.  Whilst engaged by the CCC a person who is a staff member of the CCC who immediately prior to appointment to the CCC was a public service officer is not employed by the CCC as a public service officer.  Consequently Part 5 cannot apply.  Therefore he or she cannot be a public service officer as Part 5 applies to all public service officers.

222    The Acting President in his reasons points that by clause 9(1) of the CCC Agreement it has been agreed that the disciplinary procedures in Part 5 of the PSMA are to apply. I agree that it is irrelevant that the CCC and the appellant have chosen to apply the disciplinary procedures in Part 5 of the PSMA to persons employed by the CCC by operation of clause 9 of the CCC Agreement.  They have chosen to do so pursuant to s 179(4) of the CCC Act.  Subject to the practical processes involved in enterprise bargaining the CCC could in the future choose to apply different procedures.  Further the effect of clause 9 is to apply those procedures not only to persons employed by the CCC who were prior to their appointment appointed as public service officers but also those who were not. 

223    The construction that a public service officer who is appointed to the CCC as a member of staff under s179 of the CCC Act is not a public service officer and whose status as a public service officer is “in effect” suspended and can only be reactivated subject to the conditions set out in s 180(3) of the CCC Act is expressly reflected in s 180(3).  Pursuant to s 180(3) if an officer of the CCC who was immediately prior to his or her appointment to the CCC a permanent public service officer who is dismissed by the CCC for substandard performance, breach of discipline or misconduct is not entitled to exercise a right of return to a public service position under Part 3 of the PSMA.  This provision has the effect that a right of return to the public service is conditional on service with the CCC not being severed on those grounds.