WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Marie-Helene Mallet

APPLICANT

-v-

Dept. of Consumer & Employment Protection

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 Commissioner P E Scott

HEARD BY WRITTEN SUBMISSIONS

DELIVERED WEDnesday, 3 June 2009

FILE NO. PSA 7 OF 2007

CITATION NO. 2009 WAIRC 00344

CatchWords Industrial Law (WA) - reclassification appeal - capacity of applicant to refer particular types of "industrial matters" to Arbitrator - jurisdiction of Arbitrator - Industrial Relations Act 1979 (WA) ss 80E, 80F.

Result Application to be represented by legal practitioner dismissed

Representation 

Applicant Mr J Hammond (of Counsel)

Respondent Mr K Trainer (as agent)

Reasons for Decision

1         Reasons for Decision in respect of the applicant’s application to be represented by a legal practitioner in her application regarding the level of classification of the position held by her issued on 12 March 2009.  Those Reasons noted that ground (c) of the applicant’s amended grounds of appeal raised an issue of the respondent’s Classification Review Committee (the CRC) not giving sufficient weight to the applicant’s position being abolished, a new position being created at a higher level, and that the applicant was encouraged to apply for the new position.  At paragraph 11 of those Reasons, I indicated that those issues may go beyond those which a government officer may refer to the Public Service Arbitrator (the Arbitrator) pursuant to s 80E (2)(a) of the Industrial Relations Act 1979 (the Act) by reference to s 80F.  It was agreed that the parties should address this matter by way of written submissions and they have done so.

2         I have taken account of the parties’ written submissions in reaching these conclusions.  Ultimately though this is a question of statutory construction and jurisdiction.

3         The jurisdiction of the Arbitrator is set out in s 80E – Jurisdiction of Arbitrator of the Act as being:

“80E.  Jurisdiction of Arbitrator

 (1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer, a group of government officers or government officers generally.

 (2) Without limiting the generality of subsection (1) the jurisdiction conferred by that subsection includes jurisdiction to deal with — 

(a)  a claim in respect of the salary, range of salary or title allocated to the office occupied by a government officer and, where a range of salary was allocated to the office occupied by him, in respect of the particular salary within that range of salary allocated to him; and

(b) a claim in respect of a decision of an employer to downgrade any office that is vacant.

…

(5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.”

4         Division 3 of Part II and subsections (6) and (7) have no application to this matter.  An “industrial matter” is defined in s 7 of the Act to mean “any matter affecting or relating or pertaining to the work, privileges, rights or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes…”, and a number of specific types of matters which are encompassed by the term “industrial matter” are set out.

5         Section 80F- By whom matters may be referred to Arbitrator provides that certain types of matters may be referred to the Arbitrator by particular persons or organisations.  It is notable that the only type of industrial matter the legislation allows a government officer concerned to refer is a claim mentioned in s 80E(2)(a) being:

“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:…”

6         There is no other provision for the government officer concerned to refer any other matter to the Arbitrator.

7         It ought to be noted that the legislation does not refer to an “appeal”, the reference to an appeal is of historical significance only.  A matter referred to the Arbitrator under s 80E(2)(a), commonly referred to as a reclassification appeal, is usually against the employer’s decision rejecting the government officer’s claim of reclassification of the office occupied by the government officer or in some other way a claim in respect of the salary, range of salary or title allocated to the office.  It is not a claim of unfair treatment which may be dealt with.  It is limited to the salary, range of salary or title allocated to the office occupied by the government officer.  That means that it is about the office not the officer; it is about the salary, range of salary or title allocated to the office, not about the abolition of the position, the creation of a new position or an appointment to a position.

8         I note that s 80E(2)(b) refers to a specific type of industrial matter being “a claim in respect of a decision of an employer to downgrade any office that is vacant”.  Such a claim is not within the type of matter which a government officer may refer to the Arbitrator (s 80F(2)).  The only persons or parties who may refer such a claim are an organisation or an employer (s 80F(3)).  There is no provision for an officer to refer to the Arbitrator any claim of unfair treatment in the process of abolition of and/or creation of and/or appointment to a position.

9         The claim set out in the Notice of Appeal to the Public Service Arbitrator is expressed in terms which challenge the work value assessment made by the employer and is typical of the type of claim referred to the Arbitrator in what is called a reclassification appeal.  Such a claim is assessed by reference to the Work Value test (Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service at PathWest Laboratory Medicine WA  (2008 WAIRC 00253).  That test deals with the requirement for a demonstration of a significant net addition to the work value of a position for the purpose of determining whether the position ought to be reclassified.  Such a matter involves a consideration of the requirements of the position occupied by the government officer and the work value to be attached to that position.  The work value is assessed according to the nature of the work, skills and responsibilities of the position and the circumstances under which it is performed.

10      In that context the amended grounds of appeal which deal with the considerations of the CRC about the position are in keeping with the requirements of s 80E(2)(a) being a claim of salary, range of salary or title allocated to the office occupied by the government officer.  However, considerations of the weight which ought to be given by the CRC to the applicant’s position being abolished and a new position being created at a higher level, and whether or not the applicant was encouraged by her director to apply for that new position do not relate to the salary, range of salary, or title allocated to the office occupied by the officer and therefore are not matters which a government officer may refer to the Arbitrator.  Those matters go to questions of treatment and fairness in the respondent’s abolition of one position, the creation of a new position, and the filling of that new position.

11      In those circumstances ground (c) of the application is not a matter which can be taken into account as justifying the applicant’s claim and therefore cannot be a ground of that claim.  Therefore it is not a matter about which the applicant can be heard or represented by a legal practitioner.

12      In her submission the applicant referred to the comment of the Public Service Arbitrator contained in Stephen Wall v Department of Fisheries (2004 WAIRC 1294) that:

“Those issues do not and should not override the principles on which reclassification appeals proceed- i.e. taking account of the circumstances as they existed at the date the reclassification was sought.”

13      The issue before the Arbitrator in that matter was that the respondent had announced an intention to restructure the organisation and argued that on that basis the reclassification appeal should not be heard at all.  The Arbitrator referred to the decision of Fielding C in PSA 76 of 1998 which dealt with a similar situation of an employer raising the issue of future restructuring as an impediment to a reclassification.  He said:

“Essentially the classification of an office simply involves the assessment of the work value of the office at the time of the lodgement of the appeal.  The issues raised by the Committee are not relevant to that exercise…  It will always be open to the Department at any time, irrespective of the reclassification to carry out a restructure.”

14      The context in which the comment referred to by the applicant in this matter was made was “the work value of the office at the time of lodgement of the appeal”. That was what was referred to as the “circumstances as they existed at the date the reclassification was sought”.  Accordingly, the comment referred to by the applicant is not relevant to this matter.

15      In conclusion I find that the issue raised in ground (c) is not one which justifies the applicant being represented by a legal practitioner.  An Order shall issue dismissing the applicant’s application to be represented by a legal practitioner.