WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES Johan Maritz Willers & Others

APPLICANTS

-v-

Workcover, Western Australian Authority

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 Acting Senior Commissioner P E Scott

HEARD WEDNESDAY, 26 MARCH 2008, FRIDAY, 18 SEPTEMBER 2009, THURSDAY, 5 MARCH 2009, Monday, 21 September 2009, Monday, 8 February 2010, Tuesday, 9 February 2010, Wednesday, 10 February 2010

DELIVERED FRIDAY, 9 APRIL 2010

FILE NO. PSA 24 - 34 & 43 OF 2007

CITATION NO. 2010 WAIRC 00183

CatchWords Public Service Arbitrator – Industrial Law (WA) – Classification level of WorkCover Arbitrator – History of workers’ compensation regimes – Work value assessment – Classification determination in public sector – Broad-banded classification structure – Comparisons with other positions and offices – BIPERS assessments – Mercer CED assessment – Whether Public Service Arbitrator required to find manifest error – Requirements of Industrial Relations Act 1979 – Public Service Arbitrator’s jurisdictions and powers – Fixing Remuneration – Role and functions of Arbitrator – Requirement to “act judicially” – Salaries and Allowances Tribunal’s jurisdiction – Industrial Relations Act 1979 (WA) s 80E(1) and (5) – Workers’ Compensation and Injury Management Act 1981 (WA) Parts XI, XII and XVII, Division 3, s 176, 179, 187, 286, 287(1), (2), 293 – Public Sector Management Act 1994 (WA) s 3(2) – Approved Procedures 1 and 2 – State Administrative Tribunal Act 2004 (WA) – Criminal Injuries Compensation Act 2003 (WA) Schedule 1 – Public Service Award 1992 – Government Officers Salaries, Allowances and Conditions Award 1989.

Result Applications Dismissed

Representation 

Applicant Mr P Fraser of counsel

Respondent Mr R Hooker of counsel

Reasons for Decision

1          The applicants occupy the positions of Arbitrators within the Dispute Resolution Directorate (DRD) of WorkCover WA.

2          The applicants say that the position of Arbitrator, when originally created in 2005, was incorrectly assessed and classified within the General Division of the Public Service Award 1992 at Level 9.  They seek a reclassification of the position and although the Public Service Arbitrator does not have the power to order that the positions be within the jurisdiction of the Salaries and Allowances Tribunal, that such a recommendation issue. 

3          At the commencement of proceedings the parties submitted a statement of agreed facts in following terms:

“STATEMENT OF AGREED FACTS

Historical background

1. Prior to November 2005 the Workers Compensation jurisdiction in Western Australia was conducted by a Conciliation and Review Directorate.  It comprised a Workers’ Compensation Magistrate, Conciliation Officers and Review Officers, and other officers.

2. The Conciliation Officers were classified Level 7, and Review Officers were classified Level 9, according to the classification provisions of the Public Service Award 1992.

3. On 8 July 1997, Commissioner Gregor in the Western Australian Industrial Relations Commission (WAIRC) gave his decision on an application by four Review Officers for reclassification of their positions.  Upon hearing the evidence the application was dismissed.

4. In October 2004 the then Review Officers, (sic) lodged an application with the WAIRC for reclassification of their positions.  Those applications were, however, withdrawn on 4 February 2005 as the then newly appointed Chief Executive Officer (CEO) of the Respondent undertook to arrange a comprehensive review of their positions.

5. On 14 November 2005, amendments to the Workers (sic) Compensation and Injury Management Act 1981 (WCIMA) were proclaimed.  The WCIMA as amended abolished the Conciliation and Review Directorate and created in its place a new Dispute Resolution Directorate (DRD) comprising a Commissioner (a District Court judge), a Director, arbitrators and other officers of the DRD.

6. On 11 March 2005, Ms Maureen Giorgio (sic) of Price Advertising and Consulting assessed the position of arbitrator (Arbitrator) as Level 9 based on the BIPERS classification system.  Ms Giorgio (sic) was critical of the BIPERS system noting that because of the hierarchical nature of the evaluation, and the emphasis on scoring managerial roles higher in some areas compared to individual specialist positions, the system does not cater adequately for positions such as the arbitrator position.  She recommended that an alternative job evaluation system be applied but concluded that the BIPERS assessment appeared to support a Level 9 classification.

7. The Department of the Premier and Cabinet classified the position of Arbitrator at Level 9 within the Public Service Award Framework on 6 May 2005.

8. The Director’s position was classified Class 1.

9. On 2 November 2005, 9 Arbitrators were employed pursuant to a contract which contained a fixed term period of up to 5 years.

10. By operation of transitional provisions to the amending legislation all former Review Officers were eligible for appointment to the position of Arbitrator.  Four of the five active former Review Officers applied, despite not being legally qualified, and all four were successful in being selected for the position of Arbitrator.  These Review Officers were appointed using the same merit selection process as the other candidates into the Position on 2 November 2005.  These additional Arbitrators are permanent public servants.

11. In September 2007 the Applicants commenced proceedings in the WAIRC to have the position of Arbitrator reclassified.

12. The Respondent commissioned an independent classification review of the position from CXC Consultants Exchange.

13. The resulting report (the CXC Report) submitted on 3 December 2007 concluded that the position of Arbitrator was correctly classified.

14. The Respondent accepted the CXC Report and declined to reclassify the position of Arbitrator.  The Applicants were informed of this decision on 6 December 2007.

15. The Specified Callings salary scales in the Public Service Award General Agreement (sic) were reviewed by State Government and the Civil Service Association of WA Inc, and on 13 March 2008 the WAIRC issued an order whereby a new pay scale would apply to specified callings, including relevantly, Arbitrators.

16. As a consequence of the Agreement, legally qualified Arbitrators received a pay increase, retrospective to 1 July 2007, of at least 8%.

17. Five of the legally qualified Arbitrators are currently paid at the Specified Calling Level 6.3, being $134,656.  Three of the legally qualified Arbitrators are paid an additional $3,648 per annum in accordance with clause 12 (5) (c) of the Public Service Award 1992.  The non legally qualified Arbitrators are currently paid $126,873 per annum.  The Director is currently paid at Specified Callings Level 7, being $142,244.

18. All rates of pay shown were accurate as of 1 March 2009.

19. The Applicants requested that the Respondent commission an alternative classification assessment from Mercer Consultants.

20. The Public Service Arbitrator issued a recommendation, in the course of the proceedings described at paragraph 15 above, that the Respondent commission an alternative classification assessment from Mercer Consultants, as requested by the Applicants.

21. The Respondent sought and obtained approval from the Department of Premier and Cabinet to seek such an assessment outside the public sector guidelines for classification of senior positions, and commissioned an assessment from Mercer Consultants, in compliance with the Public Service Arbitrator’s recommendation.

22. Mercer Consultants delivered a report, as commissioned, on 4 November 2008, sent under cover of a letter to the Respondent dated 10 November 2008.

23. Mercer Consultants concluded that the position of Arbitrator fell below the minimum threshold for a Class 1 position, thereby confirming the Level 9 classification.

24. In the present proceedings the Applicants seek to challenge the finding that the position of Arbitrator should be classified at Level 9.”

THE EVIDENCE

Applicants’ Evidence

4         The applicants called evidence from Professor Robert Guthrie of Curtin University, Professor in Workers Compensation and Workplace Law.  Professor Guthrie gave an outline of the history of the development of workers compensation bodies in Western Australia since the Workers Compensation Board (the Board) was created in 1948.  He gave evidence as to the structure of that Board, headed by a person with the status of a District Court Judge.  He described changes in constitution of the Board in the 1980’s and difficulties in efficiency and workflow at that time.  He also noted that there were two lay Board members, not legally qualified, but who were experienced in industrial relations and workers compensation matters.  He described changes in the chairmanship of the Board over time and the manner in which the Board operated in respect of the application of the rules of evidence and the formal processes involved in hearings before the Board. 

5         He stated that in 1993 the Workers Compensation Board was abolished and a system intended to be less legalistic was established involving the appointment of Conciliation Officers and Review Officers where there was a two stage process: conciliation by Conciliation Officers, and if that did not resolve the matter, then determination by a Review Officer.  He outlined a number of the difficulties arising with that system and in particular the complexity of some of the matters which came before the Conciliation Officers and Review Officers at the time, including stress claims.  He also dealt with changes occurring on the basis of medical panels which provided expert medical assessments to assist in the determination of claims.  Although those medical panels’ decisions were not subject to appeal, in the late 1980’s they were subject to prerogative writs. 

6         Professor Guthrie described the difficulties of a system where parties were not able to be legally represented however they could have their cases prepared by legal practitioners or could be represented by a number of other persons. 

7         Professor Guthrie also described the circumstances in the early 1990’s when consideration was given in Western Australia to a revised system, as a consequence of which, a new body was established by statute which abolished the conciliation and review process and set up an arbitration system.  This was headed by a Commissioner, who was a District Court Judge, and Arbitrators with a dual function of conciliation and, if that did not resolve the matter, arbitration. 

8         He described the “front loading” system which was established as part of those changes, which required that the all materials associated with a claim be submitted with the application.  He also described the different manner in which a Review Officer’s and Conciliation Officer’s work is now undertaken by the Arbitrator, who is a legal practitioner with a number of years’ experience, with parties being represented by legal practitioners.

9         Professor Guthrie was involved in the selection process for the appointment of Arbitrators and he described the criteria that were applied by the selection panel including:

1. Legal qualification;

2. Knowledge and background in workers’ compensation or in industrial relations;

3. An ability to “collate, integrate and assess evidence”;

4. The ability to write decisions in a prompt and coherent manner. (T62)

10      Professor Guthrie also noted the requirement to be able to understand the weight that should be attached to medical reports and “understand something about the aetiology of conditions and diseases”.  He also set out other issues which an Arbitrator would be required consider such as the definition of “worker” and the breadth of that definition, and the complexity arising from the requirement to understand the industrial relationship.

11      Professor Guthrie described the advantages of having lawyers involved in the process as compared with the previous system of conciliation and review which excluded legally qualified persons and pursued a more informal and less legalistic approach. 

12      He noted that the importance of alternative dispute resolution within the workers’ compensation process had generally been accepted within the legal community over the last two decades.

13      Professor Guthrie noted that the role of the Arbitrator in the current system of referrals to the medical panel requires a level of understanding in reading medical reports, particularly where there may be conflicting reports and that this adds complexity to the role of the Arbitrator.  Whilst the Arbitrator may refer matters to the medical panel this is not necessarily required and experienced Arbitrators may undertake an assessment from within their own experience and competence. 

14      Professor Guthrie said that the front loading system provided an opportunity for all the information to be before the Arbitrator undertaking conciliation.  He said that, in theory, this provided for the prospect of an Arbitrator being fully armed with all of the information, being more effective in conciliation, and that if conciliation did not resolve the matter, move immediately to arbitration. 

15      Professor Guthrie dealt also with issues of an Arbitrator conducting conciliation and arbitration of the same matter, involving a risk of actual or apprehended bias, and how this could be remedied by a competent Arbitrator being able to recognise the potential for such a situation and disqualify themselves. 

16      Peter Morris Nisbet, the inaugural Commissioner of the Dispute Resolution Directorate of the respondent from October 2005 to November 2007, gave evidence of his role in that Directorate. He described it as directional; to set up the rules and framework within which matters were to proceed; to issue practice directions as points of clarification in the operation of the rules; to sit on appeals from Arbitrators’ decisions which included deciding whether an appeal should lie on a question of law; and to determine matters referred by the Arbitrators on contentious and difficult questions.  He said his main role was sitting as an appeal judge in those circumstances. 

17      Mr Nisbet described the Arbitrators’ roles as being to facilitate conciliation of disputes between various parties, including insurers or self insured and injured workers, and where that conciliation was unavailing, to arbitrate.  Those determinations included issues of fact and law requiring statutory interpretation.  Appeals do not lie from decisions of the Arbitrator on questions of fact, but with leave, on a question of law.

18      Mr Nisbet noted that Arbitrators require a good knowledge of the Workers’ Compensation legislation, including previous interpretations of the current legislation and making comparisons with former legislation; the skills for statutory interpretation; knowledge of other areas of law, including employment law; contract law (including illegality of contract); a knowledge of the rules of evidence (even though they were not bound by those rules); issues such as abuse of process; principles of equity including issue estoppel and res judicata; and the tort of wrongful imprisonment.  He noted they were required to undertake a process of reasoning in acceptance or rejection of evidence like any “other determinative fact… Magistrate, Judge, you know, or Commissioner” dealing with matters such as those. (T95)

19      Mr Nisbet also gave evidence about the role of Arbitrators in dealing with interlocutory matters such as further discovery, particulars and applications for extensions of time in which to file documents.  He compared this with the Conciliation and Review Directorate where “there were no rules at all, a worker or an insurer just filed an application and then it meandered through the Conciliation (and) Review Directorate and it was formless and …….with respect, everybody…..a bit of a gormless sort of procedure as well.  Had no structure.  And it was meant…and lawyers were excluded, which in my opinion caused more problems than it cured.” (T96)  He noted there are now rules which provide for a quick turnaround.  This was necessary because it is well known that the longer an injured worker remains in the workers’ compensation system, the lower the prospects for rehabilitation.

20      Mr Nisbet gave evidence about the role performed by District Court Registrars in dealing with interlocutory applications, discovery of documents, the taxing of accounts and the like.  He said that the Deputy Registrar’s decision-making power involves the whole gamut of the District Court’s civil jurisdiction. (T101)  He compared and contrasted the roles of Registrar of the District Court and the Arbitrators, noting that the decision of the Arbitrator was final whereas no decision of the Registrar is final and can always be reviewed by a judge of the District Court. 

21      Mr Nisbet expressed the view that if it were implemented effectively and understood by the litigants, front loading would have an important benefit of enabling conciliation, undertaken by an Arbitrator, to occur more effectively and to achieve the desired end of less matters being arbitrated.  Where conciliation was unsuccessful there was a flurry of interlocutory activity involving the Arbitrator dealing with applications such as those for extensions of time, particulars, further discovery and to adduce additional medical evidence. 

22      He compared this with the old system of Conciliation and Review where there was a series of rolling applications but the Officers had no real power to stop the parties from filing documents and were not supported by any Rules.  Mr Nisbet agreed that the Review Officers had the power to control all of the matters that were necessary to get a matter ready for hearing and determination on review, and that the only appeal from a Review Officer was to a Compensation Magistrate on a matter of law.  In those circumstances there was a significant degree of finality to a Review Officer’s determination on the facts. 

23      Mr Nisbet noted that the Arbitrators are appointed under the Public Service Management Act 1994 (PSM Act), and in the performance of their duties, they are required act judicially rather than being judicial officers.

24      The applicants called evidence from Shane Melville, one of the applicants in this matter.  Currently, Mr Melville is Acting Director of the Dispute Resolution Directorate however his substantive position is that of Arbitrator.  Mr Melville is a legal practitioner and gave evidence as to his experience and areas of practice since he commenced articles in 1983.

25      Mr Melville gave evidence of how he deals with disputes which come before him, of the difference between dealing with matters under Parts XI and XII of the WCIM Act and the operation of the system of front loading.  Mr Melville also gave evidence of the requirements of the Rules and how matters proceed through the system.  Mr Melville’s evidence dealt with the requirement for Arbitrators to have some level of understanding of medical reports for the purposes of reaching conclusions about injuries.  He described the levels of authority of Arbitrators in awarding weekly payments, the payment of medical expenses and other matters, including the interim processes provided under Part XII of the WCMI Act and for final determinations under Part XI. 

26      He noted the requirements to consider jurisdiction issues, including whether the person falls within the definition of “worker”.  He described this in the following way:

“So you satisfy yourself that you’ve got jurisdiction to deal with the dispute; you satisfy yourself that the evidence meets the statutory criteria; and then you exercise your discretion having regard to all the evidence that’s been filed, including that from, for example, the employer or the respondent, whether you should make the order.  Sometimes matters are so complex you can order that the matter be dealt with instead pursuant to part 11 because it’s simply the detail and the complexity of the evidence, and the depth of the evidence is too much, really, to justify a summary disposition of the matter.  You can hold a hearing, but the act says we don’t hold a formal hearing, but I do on occasions get the parties together on the phone, particularly if it looks like one party or the other has a good case, but there’s a sort of technical deficiency in the evidence, I might give them an opportunity to remedy that.” (T113)

27      Mr Melville said that these applications are rarely consented to and therefore there is a need for a determination. 

28      Mr Melville explained his approach in dealing with conciliation conferences and arbitration.  He noted that there is a need to read all of the documents that have been filed and identify the issues between the parties, both legal and factual, to read the evidence that has been filed in preparation for conciliation and for the purpose of the matter proceeding to arbitration.

29      Mr Melville described the challenges of conciliating between parties, as to whether they are represented by a lawyer or a lay person, or being unrepresented, and where there are two unrepresented parties.  He noted that there may be a difference between the level and competency of that representation.  Those representatives may take different approaches depending upon whether they are more senior lawyers or relatively junior, as compared with representatives of insurance companies who may be very experienced in dealing with workers’ compensation law.  Mr Melville is of the view that overall, although not exclusively, it is better to have lawyers in the system, the exception being where there is an unrepresented litigant against an inexperienced or less than objective lawyer who may exploit the disparity between the relative experiences and knowledge. 

30      Mr Melville described the complexities arising from stress claims, and dealing with parties with unrealistic expectations.

31      In respect of medical assessment panels, to which Arbitrators may refer questions for assessment, Mr Melville says that this requires the preparation of appropriate questions and identification of relevant documents to be forwarded to the panel.  He noted that the panel’s decision is binding on everyone, including the Arbitrator.  Mr Melville did not recall personally having referred a question to a medical assessment panel, although he has inherited some files and seen other files where questions have been sent to the medical assessment panel.

32      Mr Melville gave evidence of the circumstances of referring a question of law to the Commissioner and how that practice operates. 

33      In respect of the areas of law an Arbitrator needs to be familiar with in order to perform the role, Mr Melville described it as including the WCIM Act; contract law; statutory interpretation; the Trade Practices Act 1974; remedies; the law of negligence as it relates to the tortious concept of causation in apportioning liability between joint tortfeasors; being familiar with the circumstances under which a matter can proceed against a company in liquidation as opposed to a voluntary winding up or a creditor’s involuntary winding up; aspects of insurance law to enable dispute resolution between insurers; industrial/employment relations law including familiarity with awards and certain provisions relating to the Industrial Relations Act 1979 (IR Act). 

34      Mr Melville gave evidence of the system of delegations operating within the Directorate and that he had undertaken certain duties under delegations from the Director. 

35      Mr Melville gave evidence of the involvement of a Legal Officer within the Directorate and its impact upon Arbitrators being asked to do work under delegation.  He noted that the creation of the Legal Officer position had taken away some work from Arbitrators. 

36      Mr Melville said that he had given evidence as to his personal experience but that he had some understanding of trends in respect of all of the Arbitrators and that his role as Acting Director had given him a lot more information and insight into the way the Arbitrators operate.

37      Mr Melville gave evidence about situations of apprehension of bias and how that would affect the allocation and performance of work by Arbitrators undertaking conciliation and arbitration of the same dispute. 

38      Mr Melville noted that under the previous Conciliation and Review system, Review Officers dealt with applications of an interlocutory character, however, he noted that the more detailed processes and rules, with specified timeframes for filing various documents of the current system did not apply.  This meant that Review Officers did not have to deal with the question of filing documents late, except where the Review Officer had issued an order that documents be filed within certain times.  Under the Review system, the document was simply filed or, if not filed, then produced on the day of hearing.

39      Mr Melville estimated that the time recorded on the audio recording equipment for times when Arbitrators sit in hearing would be between fifteen and twenty hours per month, including in interlocutory hearings and some forms of conciliation.  He said:

“If what you’re referring to as arbitration is simply the hearing such as we’re having now, then I would accept happily…I’d accept 10 to 15 hours a month on average.  If you, in referring to arbitration…you’re including all of the…what I would describe as hearings that form part and parcel of it; more particularly the directions hearings and the interlocutory applications then I would say considerably more.” (T132)

40      Mr Melville gave an assessment of the number of contested arbitrations involving significant complexity.  He agreed that “decision makers in workers compensation in this state have had to deal with (issues of relative complexity including) credibility contests” and disputes as to law and fact, for many decades. (T133)

41      Mr Melville was asked about part of Mr Orrell’s report of December 2007 where Mr Orrell had said that in respect of delegation of Part IV matters by the Director to an Arbitrator that the Arbitrators had individually and collectively refused to accept any such delegated functions from the Director.  Mr Melville said that he thought there was a refusal to do certain tasks but the reality was quite different because he had accepted delegated functions from the Director and as Acting Director he had delegated functions to other Arbitrators who had never raised an issue in respect of it.

42      Helen Louisa Porter, the Chief Assessor of Criminal Injuries Compensation gave evidence.  This included that the position is a statutory office, rather than a public service office.  The salary for the position is fixed by the Governor on recommendation from the Public Sector Commissioner.  It is in some way fixed to the salary of a magistrate. 

43      Ms Porter gave evidence of her background and experience including as a legal practitioner and in particular, in the area of criminal court work. 

44      According to Ms Porter, the work of an Assessor under the Criminal Injuries Compensation Act 2003 (WA) involves the hearing and determination of claims for compensation and applications by the Department of the Attorney General to attempt to recover the funds paid in cases where there is a convicted offender.  The great bulk of claims are dealt with on the papers with there being only sixteen hearings out of some 1100 awards granted in the previous year.  The process requires information-gathering and the Assessor examines the material provided and considers whether additional information is necessary from, for example, the police, hospitals, medical practitioners, local government authorities, insurers and others. 

45      The powers of the Assessor include investigative powers to seek information on any matter which is relevant.  This work is often undertaken with the support of clerical officers acting under direction.  The Assessors may request further information from applicants.  Consideration is given to whether the offender ought to be notified and particular issues of sensitivity are taken into account in that decision. 

46      Ms Porter gave evidence that a formal hearing may be undertaken where there are areas of contention and one or the other party indicates that there is information best put orally.  There may be a need to deal with medical evidence which is contested or contradictory.  There are issues of whether the applicant’s conduct was reasonable and this can involve consideration on what Ms Porter described as a very personal view of the circumstances. (T139)  There are cases where the injuries may have been caused by the commission of an offence but there may also be contributing factors in the background of the injured person.

47      The hearing is undertaken in an inquisitorial manner, her role being what Ms Porter described as “a kind of a blend of counsel and judicial officer in a sense that I know what I want to know; I know what information that I’m looking for…the nature of it…and I tend to ask more questions in that process than a normal judicial officer would…” (T140)  More than half of the applicants are unrepresented in hearings so the Assessor takes a very directive approach to the hearing, having issued subpoenas and notices to gather information. 

48      The complexities which arise in the matter include whether there has been an offence; if there has been a conviction, what was the conviction was for; whether the offence had anything to do with the injury; and whether other conduct which might have caused the injury but for which no person was charged.  Ms Porter noted that the outcome of the prosecution can be remarkably complex in relation to questions of causation and contribution by the applicant. 

49      The determination of compensation amounts may require an analysis of financial documents to establish the pre-incident earning capacity of the person.  There is a need to determine real losses, of claimed future loss of earnings and to consider the statutory maxima. 

50      In a separate process, the Assessor undertakes a role in recovering sums of money from the offenders for the award made in favour of an applicant for compensation.  The application is brought by representatives of the Department of the Attorney General for the debt to be created and pursued.  The recoverable amount may or may not be the full amount of the award and this might arise in circumstances where the extent of the injury exceeded the criminality of the conduct. 

51      There are issues of public interest, including whether it is appropriate for the State to pursue the recovery in circumstances where the level of injury was significant and the level of criminality of conduct was less so.  There are various issues of judgment to be applied in those cases. 

52      Evidence was given by Michael John Harding by way of a statement which became exhibit A7.  The respondent did not object to the tendering of this document and Mr Harding was not required for cross-examination. 

53      Mr Harding’s evidence was that he was formerly a Principal Registrar of the District Court of Western Australia.  He described his professional qualifications and experience until his retirement on 3 March 2004.  When he was appointed to the position of Principal Registrar on 3 March 1987 the position was a Level 7 officer in the public service.  He described the circumstances of the complement of the Court at the time and noted that over the years the volume of business in the Court increased, that there were further Registrars appointed, including two Deputy Registrars, and when he retired there were 23 judges of the Court.  Mr Harding described his duties including deciding upon and issuing orders in interlocutory applications in matters pending before the Court.  Those matters were heard in chambers and were in respect of procedural matters, for example discovery, answers to interrogatories, further and better particulars, strike-out applications, and to take evidence de bene esse.

54      He noted that the parties were usually represented by legal practitioners and he described the manner in which matters were dealt with, that he would deliver an ex tempore decision with reasons or reserve his decision.

55      Mr Harding described the inter-relationship between the work of the District Court under section 93D of the Workers’ Compensation and Rehabilitation Act in the period 1993-1999 and the matters he dealt with, noting that the degree of disability of the worker was required to be not less than 30% or future pecuniary loss of not less than an amount prescribed under the Act, and that degree of disability was determined by Review Officers at the Conciliation and Review Directorate.  The Registrars of the District Court had to determine the future pecuniary loss.  There was a right of appeal against those decisions to a District Court judge.  He described changes since then and the impact upon his work as a Registrar.

56      Mr Harding also described the work in conducting pre-trial conferences on actions entered for trial.  These matters related to all of the civil work of the District Court.

57      Mr Harding also referred to the duties of Registrars in taxation of costs saying that he retained to himself the more complex issues. 

58      Mr Harding gave evidence of his other duties as Principal Registrar. 

59      There was evidence as to efforts made which resulted in remuneration for Registrars being set by reference to the salaries of the District Court judges, and that those salaries are reviewed by the Salaries and Allowances Tribunal.

Respondent’s Evidence

60      The respondent called evidence from Murray Peter Orrell, the Principal Consultant with CXC Consulting Pty Ltd (CXC).  Mr Orrell gave evidence of his experience in industrial relations matters in government and in assessing classifications of positions within the public sector of Western Australia. 

61      Mr Orrell was engaged through CXC by the respondent to review the classification of the position of Arbitrator in 2007.  He obtained the appropriate papers from the organisation, met with the Arbitrators, with the Chief Executive Officer and the Director, Dispute Resolution Directorate.  He prepared a report which he says is in accordance with Approved Procedures.  His report (exhibit R1) sets out his methodology and findings. 

62      Mr Orrell noted at page 2 of his report that the Arbitrators made reference to the similarity between their role and those of District Court Registrars and Magistrates, but also that “they indicated that Arbitrators should be remunerated with a package that is intermediate between an Ordinary Member and Senior Member of the State Administrative Tribunal”.  He said that the Arbitrators’ main focus was in relation to the roles of Ordinary Member and Senior Member of the State Administrative Tribunal and that there was very little said in relation to a comparison with the District Court Registrars and Magistrates.  In papers presented by the Arbitrators to the Department dated 17 May 2007, the Arbitrators had said:

“While a very compelling case could be argued that Arbitrators (sic) duties are such that they should be remunerated at District Court Registrar or perhaps Magisterial levels, we accept that such an outcome would be resisted by the W.A. judiciary, WorkCover WA, and the Department of Premier and Cabinet.” (Ex R2 – Supplemental Information in Support of Reclassification of Arbitrator, Dispute Resolution Directorate)

63      Mr Orrell says that because the Arbitrators did not provide any substantial material in relation to the duties and responsibilities of District Court Registrars, he did not pursue that comparison any further.  Rather, the matter was considered on the basis on the salaries of Ordinary and Senior Members of the State Administrative Tribunal because that was the approach taken by the Arbitrators. 

64      Mr Orrell explained that the Arbitrators had prepared a revised job description form which, although it was not accepted by the management of WorkCover, he examined and considered. His assessment was based on change in work value from the previous role of Review Officer as well as the original job description form. He examined the exercise of judicial and arbitral functions and the methods used in dealing with claims through conciliation, teleconferences, directional hearings, hearings and the like.  He considered that the changes referred to by the Arbitrators did not reflect changes in the nature of duties and responsibilities or an increase in the work value of the position. 

65      Mr Orrell’s assessment was that the exercise of independent and discretionary powers contained within section 187 of the WCIM Act was not a new area of responsibility and existed prior to 2005. 

66      His view was that the requirement to issue orders and written reasons for decision, and the decisions being final and binding on the parties and on superior courts, did not constitute a significant net addition to work value and that this was adequately catered for in the existing classification at Level 9. 

67      In his view, dealing with interlocutory applications, determination and issuing of orders, and that orders are not appealable, were not new but had been part of the previous legislation.

68      As to proposed Duty 9 - the conduct of taxation of costs, this was not contained in the current job description form but was something previously taken into account. 

69      As to proposed Duty 10 - delegation of authority from the Director, whilst this was not in the current job description form, the Director had the power to delegate and Mr Orrell was of the understanding that apart from the period of four months before the arrival of a Legal Officer who now performed those functions, Arbitrators had individually and collectively refused to accept delegations of functions from the Director.  This meant that this was not a new or added responsibility for the position. 

70      As to providing guidance and assistance to and monitoring of staff, Mr Orrell said it was acknowledged that this was undertaken by the Manager of Client Services and his view was that the Arbitrators had a working relationship with these officers but the end of line responsibility rested with the Client Services Manager.  There was no change in the duties and responsibilities of the Arbitrator in that regard.

71      Mr Orrell’s view of monitoring the performance of agents and legal practitioners and reporting unprofessional behaviour was that, at best, this represented a minor change in duties and responsibilities.

72      Involvement in community liaison and representing the Chief Executive Officer and Director on external committees and working parties was not a significant change to the duties and responsibilities.  This type of responsibility occurs across Levels 5 to 8 in other positions with which Mr Orrell had dealt.

73      Although formally a new duty, liaising with the Commissioner and Director was not a significant change in duty or responsibility and not all Arbitrators were involved in this requirement.

74      Mr Orrell had also considered Ms Giorgi’s report and the work undertaken by former Chief Commissioner Coleman and former Commissioner George.  Mr Orrell said that he concluded that there was no significant increase in the work value of the position of Arbitrator.  He recognised there were some changes in duties and responsibilities but they did not constitute a significant net addition to work value in the terms required by the Wage Fixation Principles.  Therefore reclassification was not warranted. 

75      Mr Orrell also undertook a BIPERS assessment.  This required the applicants to fill in a job evaluation questionnaire.  Ten factors were considered and points were allocated against each for the degrees associated with those factors.  He described the various factors and how he had come to his score.  He came to the conclusion that the position should be scored in the range between 507 and 512, which corresponded with Level 8 according to the BIPERS classification scores.  He noted that Price Consultancy had scored them between 492 and 510, but described an error in the arithmetic which arrived at this score. 

76      In regard to factor 6: Instructions Received, Mr Orrell noted that the Arbitrators claimed a degree of 15 on the basis that they were autonomous in respect of the work they undertook and the decisions they made.  He found that this factor did not really apply specifically to the Arbitrator position, but considered that it could be interpreted to apply to the fact that the Arbitrators cannot be directed in terms of the decisions that they make.  Accordingly, he allocated a degree of 15, which is the highest that can be allocated for that factor. 

77      In respect of factor 7: Influence on Results, he noted that the Arbitrators claimed a degree of 11 based around dispute resolution.  His view was that the role of the Director of Dispute Resolution took responsibility for a functional area and that at best it could be said that the Arbitrators were responsible for a work area which had a large influence on the dispute resolution function and a large influence on WorkCover’s results. 

78      Factor 8: Size of Organisation is unrelated to the individual position.  WorkCover is a Group 3 organisation.

79      In respect of factor 10: Subordination Level, Mr Orrell noted that Arbitrators are administratively at the third level of management.  However he says he recognised that in the exercise of the statutory responsibility, they are at a second level of management responsibility, through to the Minister under s 289 of the WCMI Act.  In this case he split the score to take account of this dichotomy, allocating the higher level for one and the lower for the other.

80      Having undertaken that scoring process, Mr Orrell also drew comparisons with the State Administrative Tribunal positions referred to by the applicants.  He noted that the Salaries and Allowances Tribunal determines the salaries and conditions for those positions in accordance with the decision with the legislature.  He examined the State Administrative Tribunal positions and noted that they were still under the control of the PSM Act and that the State Administrative Tribunal’s functions and powers are established under the State Administrative Tribunal Act as well as there being jurisdiction gained from more than 130 other, enabling Acts.  This provides a far broader range of responsibilities than applies to the Arbitrators, who operate under one primary act being the WCIM Act. 

81      Under cross-examination Mr Orrell noted that he had approached the examination of the Arbitrator’s position on the basis of a claim of change in work value on the basis that this was what he had been instructed to do, but he had also been instructed to review the classification of Arbitrator, not simply look at work value change.  He says that he did examine work value change but also conducted a BIPERS assessment and then considered comparative positions.

82      Mr Orrell acknowledged that Ms Giorgi’s report indicated difficulties with using the BIPERS tool for the purpose of an assessment where she had stated that the BIPERS job evaluation system emphasised scoring management roles higher than some specialist type functions and that the BIPERS system did not cater adequately for positions such as Arbitrators.  Mr Orrell said that he did not believe that that was the case, saying that the system had been in existence since around 1985 and had been used for positions across the public sector in administrative, clerical, management, general and specialist positions both in the professional division of the public service and within the hospital sector.  Mr Orrell said that the way in which he had conducted the assessment was that he recognised the specialist role particularly of Arbitrator in terms of the factors to be considered.  He said that in the Subordination Level, he had been liberal in his interpretation of the factors, and what he described as generous in the scores he had allocated. 

83      Mr Orrell acknowledged that he had provided a discussion paper to the Chief Executive Officer and the Director, Dispute Resolution in which he had commented that “my assessment places the position in the upper end of the range for a position classified as Level 8.  The use of BIPERS, even with a very liberal interpretation of the factors, will only ever result in the positions being classified at Level 8 or 9.  This is due to the fact that BIPERS is hierarchical in nature and does not make allowances for specialist positions like Arbitrators where they are required to operate independently by legislation.” (T162)  Mr Orrell says that whilst Arbitrators “start off behind the eight ball” (T163), in his assessment he made allowance for that.  He believes that the BIPERS tool provides some discretion as to the various degrees that are allocated against each of the factors and that he had applied that approach in assessing the claim.  He described how his and Ms Giorgi’s views had diverged and how she had arrived at her scores whereas what he did was “looked at it from a different angle and that is that the Arbitrators were claiming responsibility for a functional area and that wasn’t the case…that’s the role of a Director…and they were responsible for work areas which have a large influence on both the dispute resolution function and a large influence on the agency’s results, so in my assessment that’s an appropriate degree to allocate”. (T163) 

84      Mr Orrell also gave evidence as to the impact of the size of the organisation on the overall scoring of the position and that due to it being a small organisation, it is a group three organisation.  The score for factor 7: Influence on Results is combined with the score for factor 8: Size of Organisation, to achieve a result.

85      Mr Orrell explained how he dealt with the Subordination Level in factor 10, recognising that the Arbitrator has both an administrative line of responsibility (which was at the third level of management) to the Director, Dispute Resolution and a statutory responsibility at the second level of management through to the Minister and created what he described as “a range” in those circumstances. (T165)

86      Mr Orrell also gave evidence of the approach to comparison positions when looking at changing work value, as compared to classifying a new position.  He noted that what Ms Giorgi did was look at the work value of the position, not change in work value, and that she had detailed in her report the key parts of the work value for the position. 

87      Mr Orrell disagreed with the proposition that it is appropriate to examine the salary of comparable positions where the comparison positions are not within the same classification structure. 

88      Robert Charles Butler, a Consultant with Mercer Australia Pty Ltd, gave evidence.  Mr Butler described the process he had used to prepare a report for WorkCover on the approval of the Department of Premier and Cabinet using the Mercer CED methodology to assess the work value of the Arbitrator role.  He was assisted by his associate, Adrienne Best.  The process involved interviewing the incumbents, the Chief Executive Officer and the Director responsible for the Arbitrators; considering a number of submissions from the Arbitrators; evaluating the role; having a internal peer review of that evaluation and finalising the evaluation.  He provided a report dated 4 November 2008 (exhibit R3). 

89      The work value assessment involved reviewing all documentation and information from the submissions and the interviews which were conducted. 

90      The preliminary work value outcome was discussed with WorkCover’s Chief Executive and Director. 

91      Mr Butler noted that in respect of the role of the Arbitrator, one of the practices of the Mercer CED methodology is to form a view of the level of independence of the role.  He said the use of the word “judicial” is probably an unfortunate one in that Mercer was not in a position to say whether the position was a judicial one or not.  Rather, the term referred to how an Arbitrator would be expected to act with a sense of fairness, to apply principles of natural justice, to form an independent view and methodically analyse the facts. (T171) 

92      Mr Butler described the Mercer CED methodology as comprising a number of levels within each of the key factors of expertise, judgment and accountability, and a number of levels within each of the sub-factors.  He noted that within the WA public sector, the Mercer CED methodology is only used above Level 8 and in the SES classification ranges.  Class 1 within the public sector classification structure has a threshold of 1000 Mercer points. 

93      Mr Butler noted that within the Mercer CED benchmarking and peer review process, they only benchmark against other positions that have been evaluated using that methodology, to ensure that they are comparing like with like.  Therefore if a position had not been evaluated using that methodology, then direct comparisons could not properly be made with the same rigour. 

94      The conclusion Mercer reached was that the position of Arbitrator had a high level of independence and could not be directed by WorkCover; was highly specialised; operated in a relatively complex area and spanned a range of activities; it required the exercise of reasoning that involved identification and resolution of fundamental problems on a case by case basis, and it operated in a relatively narrow field of law.

95      In assessing the information provided, Mr Butler was confident that from an expertise, judgment and accountability perspective and the application of methodology in a consistent way, a point score of 756 was reasonable and appropriate.

96      In cross-examination Mr Butler described how the initial assessment was done by himself and Ms Best individually and that they compared their assessments and came up with very minor differences.  He described the internal peer review process and that in this case it was conducted by two of the most senior principals in the business, one of whom had extensive experience across a number of jurisdictions, including Western Australia, in evaluating roles in the judiciary and magistracy. 

97      Mr Butler also gave evidence that he interviewed Mr John Young, a Deputy State Solicitor, who had previously had some involvement through the State Solicitor, in the role of Arbitrator. 

98      Mr Butler described the process of considering each factor and the various ranges within those factors, noting that the Mercer CED methodology for each factor such as accountability or advice, involves starting at the lowest point of the particular scale of descriptors where the position matches the descriptor.  The assessment continues up that scale to a point where the position no longer reflects the description in the scale.  At that point, the assessment drops back to the one below, which is then seen as the best match. 

99      Mr Butler explained that in the “expertise” factor, higher level positions are usually categorised with the Mercer CED system as being in the “F” or “G” ranges.  They commenced by seeing if the Arbitrator position fell in the F– range, then looked at the F+ range and noted if there was anything that prevented them from saying that it fell within the F+ range, and settled on F.  He noted that G is the higher range and this would apply to a Chief Executive or a Director General of a major government agency.  An Executive Director of a large agency contributing to the broader strategic direction of the organisation; usually having a state-wide impact; developing and implementing high level policy and advising government on key areas of concern within their sphere of operation and speciality, would be expected to fall within the G– range.  

100   Mr Butler explained that the traditional job evaluation system places significant emphasis on the management of resources, people and budgets, however the Mercer CED system looks at positions differently, taking account of those factors but also recognising that there are many positions particularly within government that are more advisory in nature and more policy-focused.  Reference to “advice” or “advisory” was more appropriate for the Arbitrator position because “the value of the position lies more in the impact of the application of the expertise in determining matters rather than in managing a large set of resources”. (T175)  The impact of that advice is judged according to the breadth of its influence, for example Mr Butler said “higher level advice impacts on the whole organisation or an industry or a section of the community or the whole community”. (T176) Mr Butler said that “[m]ost statutory office holders would be regarded as advisory, a lot of policy development roles, most positions in the judiciary and magistracy.” (T176)  The distinction to be drawn between the various roles is around the impact of the “advice” that is provided and, the level of influence that the position exercises, including the availability of alternative sources of advice.  

101   Mr Butler noted that there are a number of roles in organisations both in public and private sectors that have both accountability for management of resources and also provide advice on policy or direction for the organisation.  He said where there is no one predominant focus of the position, then an evaluation is conducted using both “advice” and “direct”, and they err on the generous or higher side. 

102   Mr Butler said that in undertaking conciliation, to try to obtain an agreement between the parties and in undertaking arbitration, including dealing with interlocutory applications, the Arbitrator would be considered to be performing an advice role.  The impact or the breadth of that “advice” would result in a smaller score because it impacts only on the parties to the particular dispute.  Mr Butler agreed that an assessment of a magistrate’s role dealing with applications with only two parties would involve the same considerations, or the same system.  He believed that the review and benchmarking processes referred to earlier included a range of evaluations which had been conducted which included roles such as a magistrate.   However, he did not have the detailed evaluations in front of him to answer direct questions about those positions.

103   Mr Butler said that he believed that in their discussions with him, the Arbitrators had referred to particular positions at the State Administrative Tribunal and the District Court Registrar but that it was only possible to make general comparisons because the Mercer CED system had not been used to evaluate those positions. 

104   Mr Butler provided a list of positions which had been used to benchmark and peer review the work value assessment for the position of Arbitrator (exhibit A11).  They were Magistrate, Deputy State Ombudsman, Registrar Magistrates Court, Registrar Supreme Court, Deputy Chief Magistrate, Member Administrative Appeals Tribunal, Judicial Registrar, Industry Ombudsman, Electoral Commissioner (small State), Chair Transport Appeals Board and Chair Residential Tenancies Tribunal.  He said that all of those positions fell below 1000 Mercer CED points, and that 1000 points is the minimum for Class 1.

105   Mr Butler also noted that roles such as Industrial Relations Commissioner, Chief Assessor of Criminal Injuries Compensation and Assessor of Criminal Injuries Compensation had been assessed in the past. 

106   Mr Butler was referred to a comment at page 5 in his report that “the area of law relating to the arbitration role within WorkCover (was) relatively narrow when compared to other judicial roles”, and he said that this comment was trying to provide the client with a view or summary “of the key points that have been raised throughout the discovery process, the interviews and submissions, and we believe that that was the overall view of the people we spoke to.”  (T179)

The Applicants’ Submissions

107   The applicants do not rely on changed work value but say that the position was wrongly classified from the outset. 

108   The essence of the applicants’ position is that:

1. the BIPERS tool is not an appropriate mechanism for assessing the requirements of the position of Arbitrator.  They say that both Ms Giorgi and Mr Orrell recognised that inappropriateness.  The BIPERS tool is suited to the hierarchical structure where higher levels of positions bear higher levels of responsibility and authority for management of people and resources, as opposed to specialist positions such as Arbitrator.  Positions which do not have management responsibility are unable to achieve the higher scores applicable to management positions because consideration is weighted in favour of management of numbers of employees, and financial and other resources.  Specialist positions which have different types of authority, skill and knowledge are not adequately recognised.

2. Ms Giorgi used as a comparative position that of the former Review Officer.  The applicants say that this was not an appropriate comparison because the Review Officer operated under a different structure and system.  The differences include that the Review Officer was operating in a lay system whereas the Arbitrator operates in the system where lawyers are present.  The Review Officer system did not have the front loading approach and did not have the same interlocutory applications or Rules issued by the Commissioner which make the current system more formalised, structured and legalistic.  Arbitrators are required to have knowledge of various areas of law and apply it in their work.

3. The third assessment undertaken by Mercer, was also inappropriate because of its categorisation of the type of position and because of the comparative positions used in the assessment.  The Mercer assessment gave insufficient weight to comparisons with like positions, categorised the position as “advice”, then undervalued the position by reference to the breadth or scope of the effect of that advice being limited to the competing parties.  The applicants say that the points score for a Magistrate or District Court Registrar under the “advice” category demonstrates the flaw in that approach.

4. There has been insufficient weight given to the work value of the position of Arbitrator.

5. The requirement of the position to act judicially demonstrates the specialised nature of the function.  Of itself the requirement to act judicially does not attract great weight but the context in which the position acts judicially is recognition of that specialist nature.

109   The applicants say that since Commissioner Gregor’s decision of the 8 July 1997, where he determined that positions within the broadbanded classifications structure were the only ones that could be used for comparison purposes, the Approved Procedures and the Senior Executive Classification Service Quality Framework have issued.  According to the last such document, at page 3, external comparisons are now permissible.  It allows for “comparison of both internal and external relativities, ie., like positions within the agency, the Public Sector and across Australia, with internal taking precedent (sic) taking over external.  External comparisons should be examined more closely than simply reviewing the JDF”. (exhibit A1)  The applicants reject that comparison positions outside the broadbanded structure cannot be used and say that if that is so then there is no comparable position within the broadbanded structure.

110   The applicants put forward a table of positions with statutory powers for comparative purposes.  These positions are under the jurisdiction of the Salaries and Allowances Tribunal and are said to be similar to the Arbitrator albeit that they deal with different types of issues. 

The Respondent’s Submissions

111   The respondent submits that:

1. It is necessary to view the position in the context in which the position fits within the statutory scheme including the PSM Act and the WCIM Act and taking account of history.  Meaningful comparisons can only be made with like positions and those positions ought to be sourced within the public service of Western Australia.

2. The Public Service Arbitrator ought to review the respondent’s decision for the purpose of finding manifest error and if it is found, correcting that by way of nullification, modification or variation (s 80E(5) of the IR Act).  These terms suggest the correction not just of error but of material error. 

3. The previous assessments of the position have not been demonstrated to have been in error but came to the right conclusion.  The respondent says that if the Public Service Arbitrator were to stand in the shoes of the original decision-maker and come up with the “right” decision as opposed to discerning error, then the factual history of the positions is highly relevant.  That history includes that Ms Giorgi reached a conclusion supported by the employing authority, Mr Orrell came to a third conclusion compatible with the outcome arrived at by Ms Giorgi and the employing authority, and Mr Butler of Mercer came to a similar conclusion using an entirely different classification process.  In those circumstances there would need to be clear and cogent reasons why the correct or preferable decision ought to be different to the earlier outcomes. 

4. Having regard to the history and context, the respondent says there is no material difference between the work done by the Arbitrator and the Review Officer which would have any consequence for work value.  There have been what the respondent described as “swings and roundabouts”, that in some ways the role of Arbitrator is a bit harder than that of its predecessors, the Conciliation Officer and Review Officer, and in other ways a bit easier.  The material difference is that the Arbitrator is better prepared in a more efficient system.

5. The applicants have not clearly demonstrated manifest error on the part of previous assessments of the position of Arbitrator, but simply say that the outcome of the Orrell report was wrong and they seek what the respondent describes as a fifth bite at the cherry.

If there was manifest error in the assessments, then the requirement is to come to a sensible conclusion, in the context of the legislative framework, rather than voiding the act done in breach.  (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355)

The respondent says that if the Public Service Arbitrator’s role is to undertake the exercise of discretion afresh, then a very significant onus falls upon the applicants to demonstrate their case. 

6. The respondent says that the applicants have misplaced a reliance on a characterisation of the functions of the position of Arbitrator as being “judicial”.

112   As to the criticism of Mr Orrells’s approach, the respondent noted Mr Orrell did not consider a comparison with the District Court Registrar because the applicants suggested that he should focus on the State Administrative Tribunal Positions and that is what he did.  The respondent says that Mr Orrell was suitably flexible and sensible in the application of the Approved Procedure and the BIPERS tool.

113   The respondent says that the comparisons with District Court Registrars and Assessors of Criminal Injuries Compensation are not appropriate due to the different statutory sources of those positions and that they are not under Part 3 of the PSM Act but are remunerated under different schemes. 

114   The respondent noted that there are many officers within the Public Sector who are required to investigate and deal with matters of complexity, involving emotion and requiring sensitivity, for example undertaking disciplinary or other public sector inquiries.  The fact of there being no capacity to appeal against findings of fact made by the Arbitrator does not make a substantial difference to the issue of work value. 

ISSUES AND CONCLUSIONS

Position of the Arbitrator

115   I note the Statement of Agreed Facts submitted by the parties at the commencement of the hearing, and set out in paragraph [3] of these Reasons.

116   The WCIM Act provides for the position of Arbitrator within the Dispute Resolution Directorate of the respondent in Division 3 of Part XVII.  The Arbitrator is subject to the direction and control of the Director in the exercise of his functions (s 287(1)), however is not subject to such direction in respect of the decisions to be given on matters before the Arbitrator (s 287(2)).

117   The Commissioner makes Rules and issues practice notes with respect to the practice and procedure governing the jurisdiction, functions and proceedings of the Commissioner and the Arbitrators (s 293).

118   The Arbitrator is an “officer” of WorkCover (s 286), and a person cannot be an Arbitrator without the approval of the Minister.

119   The jurisdiction of the Arbitrator is set out in s 176 as being:

176. Exclusive jurisdiction

(1) In this Part –

dispute means –

(a) a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act;

(b) a dispute in connection with an obligation imposed under Part IX;

(c) any other dispute or matter for which provision is made under this Act for determination by an arbitrator;

(d) any other matter of a kind prescribed by the regulations.

(2) A proceeding for the determination of a dispute is not capable of being brought other than under this Part or Part XII.

(3) Subject to this Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes.

 [Section 176 inserted by No. 42 of 2004 s. 130.]

The powers of the Arbitrator are set out in various sections in Parts XI and XII of the WCIM Act.

120   The Job Description Form effective from 1 July 2005 (JDF) (exhibit A5) notes the reporting hierarchy of the Dispute Resolution Directorate including that a number of Arbitrators report to the Director at Class 1 and the Chief Executive Officer at Group 1 (max) of the Special Division.

121   The JDF describes the role of Arbitrator as –

“The Arbitrator is responsible for settling disputed claims for compensation between the parties in a Workers’ Compensation claim.  They exercise exclusive jurisdiction to examine, hear and determine disputes as defined in section 179 of the Workers’ Compensation & Injury Management Act, 1981.  The Arbitrator has jurisdiction to make a monetary award or series of awards to a particular worker, and the determinations of the Arbitrator are final and binding.”

122   The duties in descending order of importance are:

“1. Acts judicially in exercising exclusive jurisdiction to examine, hear and determine disputes as defined in section 179 of the Workers’ Compensation & Injury Management Act, 1981. (“The Act”)

2. Presides over hearings as to and makes final and binding determinations on, disputed claims for compensation in accordance with Part XI of the Act.

3. Uses best endeavours to bring the parties to a dispute to a settlement acceptable to all of them.

4. Produces written reason (sic) for determination identifying the findings of fact and law applied in coming to the determination.

5. Makes decisions under Part XII of the Act as to interim payments, suspensions or reduction orders and minor claims without formal hearing.

6. Issues interlocutory orders in disputes arising under the DRD Rules.

7. Reconsiders decisions when new information becomes available in accordance with s186 of the Act.

8. Provides information to parties pertaining to their appeal rights.

9. Conducts taxations of costs.”

123   The selection criteria are:

“ESSENTIAL

Qualifications/Experience

• Legal practitioner as defined in the Legal Practice Act, 2003.
• Relevant post admission experience in a legal role, preferably in dispute resolution.

Analytical, Problem solving and Decision making skills

• Proven ability to make determinations and resolve disputes.
• High level analytical skills and the capacity for impartial judgment.
• Ability to make sound and timely decisions.
• Proven ability to interpret and apply legislation.

Communication, Interpersonal and Negotiation skills

• High level written and verbal communication skills.
• Ability to undertake alternative dispute resolution especially in relation to conciliation and demonstrated high level negotiation skills.

DESIRABLE

• Previous experience in a quasi-judicial decision-making role.
• Previous experience in a workers’ compensation jurisdiction.
• Basic computer and keyboarding skills including experience with Microsoft office suite of applications.”

Jurisdiction and Powers of the Public Service Arbitrator

124   The jurisdiction of the Public Service Arbitrator is set out in s 80E of the IR Act.  The relevant parts for the purposes of these matters are subsections (1) and (5) which provide as follows:

(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.

…….

(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.

125      The Industrial Appeal Court in Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244 dealt with the issue of the Public Service Arbitrator’s powers in particular with regard to s 80E(1) and (5), and that  the Public Service Arbitrator’s jurisdiction is to deal with an industrial matter.   Wheeler  and Le Miere JJ at paragraphs 24 – 34 noted the following:

[24] The definition of "industrial matter" in the Act is a lengthy one, but in its core meaning is "any matter affecting or relating or pertaining to the work … of employers or employees in any industry or of any employer or employee therein … ".

…..

[28] Turning, then, to the question of the proper construction of s 80E(5), read with s 80E(1), in our view the controversy which has arisen relates to a false issue. As we have noted, there is no power conferred by the Act upon the Arbitrator to engage in anything in the nature of "judicial review", or to make a bare declaration. That is jurisdiction of a kind quite different from the merits-based inquiry contemplated by s 80E. To the extent that the reasons of the Full Bench might be read as suggesting that there is such power, they are in error.

[29] However, the powers of the Arbitrator are very wide. They are to inquire into and deal with any industrial matter. To the extent necessary, the exercise by an employer in relation to a government officer of a power relating to that industrial matter may be reviewed, nullified, modified, or varied by the Arbitrator.

[30] An inquiry into an industrial matter will, where that industrial matter is affected by other legislation, or where the actions of persons involved in the industrial matter are, in some respect, governed by other legislation, involve an inquiry into what was done, in that legislative context. In order to determine how to "deal with" an industrial matter, the Arbitrator must find relevant facts. If it is the case that a relevant factual finding suggests that a person has been guilty of unlawful or improper conduct, that is a finding which it is open to the Arbitrator to make, not as an end in itself, but as a step in determining how the industrial matter is to be dealt with.

[31] Where, as is presently the case, the way in which officers in the public service deal with each other is the subject of principles and requirements contained in legislation such as the PSM Act, it will often be desirable for the Arbitrator to consider whether the behaviour of individuals involved in the industrial matter has been in conformity with those principles and requirements. Again, findings of that kind would not be made as an end in themselves, but would be made in order to determine how, in the broad statutory context, it would be appropriate to deal with the industrial matter.

[32] It will on occasion, as part of that process, be necessary for the Arbitrator to undertake a consideration of the relevant statutes, so as to ascertain how they apply to the facts as found. That exercise is undertaken, not in order authoritatively to declare the meaning of the statutory provision, but again as a step in the process of ascertaining what is required, in the statutory context, to deal with the industrial matter.

[33] Those conclusions may on occasion lead to the view that it is necessary in order to deal appropriately with the industrial matter, to nullify, modify, or vary an action or decision of an employer, pursuant to s 80E(5). That subsection does not confer any independent jurisdiction to quash those decisions, but only to do so to the extent necessary to ensure that the industrial matter is dealt with as contemplated by s 80E(1). Similarly, the word "reviewed" in s 80E(5) is plainly not intended to confer some independent power to review any decision of an employer, but only a power to review (and, if necessary, to differ from) the decision where it is necessary to do so as part of the process of dealing with an industrial matter.

[34] When s 80E(1) and (5) are understood in the way in which we have endeavoured to explain, the controversy about the Arbitrator's power of "judicial review" simply disappears. There is plainly no such independent power. Equally plainly, however, some of the questions which would be determined by a Court undertaking judicial review of the actions of government officers may be questions which it is necessary for an Arbitrator to consider and determine in order to deal with an industrial matter relating to those government officers. Those questions are dealt with by the Arbitrator, however, not in order to make an authoritative and binding determination concerning them, but as steps in the process of determining how the industrial matter is to be dealt with.

126   Hasluck J at paragraph 167 endorsed those comments. 

127   It is my understanding of Wheeler and LeMiere JJ’s comments that the powers of the Public Service Arbitrator are to enquire into and deal with any industrial matter.  It is as part of that process that the Public Service Arbitrator may, in appropriate circumstances, review, nullify, modify or vary anything done by an employer in the exercise of any power.  The Public Service Arbitrator does so in order to deal with the industrial matter.  It requires that there be relevant findings of fact and dealing with the industrial matter.  This does not require the Public Service Arbitrator to necessarily, as a first step, conclude that the employing authority has made a manifest error in the exercise of power but the power to review the decision of the employer is exercised “where it is necessary to do so as part of the process of dealing with an industrial matter”. [33]  Therefore I conclude that the Public Service Arbitrator is not limited to finding manifest error but may do so as part of the process where it is necessary to deal with the industrial matter.

Fixing Remuneration

128   Part of what the applicants seek is for the classification of the position of Arbitrator to be set by reference to a range of positions they say are comparable.  Some of those positions have their salaries determined by the Salaries and Allowances Tribunal (eg the District Court Registrar and the Ordinary Member of the State Administrative Tribunal).  The Chief Assessor of Criminal Injuries Compensation has a salary set by the Governor on recommendation from the Minister for Public Sector Management (Criminal Injuries Compensation Act 2003 (WA) Schedule 1, Clause 3(4)).

129   The applicants say that amongst, other things, the salaries applicable to other positions ought to be taken into account. 

130   This view seems reasonable on its face, however it ignores the reality of the way remuneration is fixed.  There is no one, single wage or salary determination model applicable across all positions and offices within the public sector.  Some are fixed by the Salaries and Allowance Tribunal, such as the Ordinary Member of the State Administrative Tribunal.  Others are determined by the Governor on the advice of a Minister.

131   They may take account of salaries of like officers in other jurisdictions, or have a particular linkage or nexus. 

132   This Commission and the Public Service Arbitrator fix remuneration according to a broad range of factors.

133   Remuneration is not fixed simply by reference to the salary of other positions which have some commonality of roles and responsibilities.  It also takes account of the history of the position and its context.  It takes account of the principles which applied at the time the remuneration was originally struck.  It may take account of a range of elements of the job market such as attraction and retention, mobility, and conditions under which the work is performed.  It is not simply a comparison of like with like, although that has a real role to play.

134   The fixing of remuneration for government officers within the public sector in WA has a number of particular elements.  The first is that there is a need for consistency of treatment.

135   I have made these comments in respect of remuneration fixing generally, however, determination of classification is a branch of remuneration fixing which has its own criteria and processes, most particularly in the public sector.

136   The applicants have brought applications under s 80E of the IR Act.  The Form 10 originally filed in each case sought an increase in the level of classification commensurate with Members of the State Administrative Tribunal.  Therefore, they are required to demonstrate, not that the level of salary ought to be increased but that the level of classification ought to be increased.  Therefore, the claims are to be determined by reference to the classification structure within the public sector and not by reference to the salary per se.

Classification of Positions Within Public Sector

137   Part of the process of classifying positions within the public sector is, by necessity, comparative.  By this I mean that there needs to be a common thread linking all positions within the public sector, in particular those within the broad-banded classification structure set out in the Public Service Award 1992.  Those positions may not be the same in terms of the types of duties and responsibilities, but there must be some means of working out how each position relates to others, even to unique positions.  It is possible to group like positions, but all positions must be considered within the context of the overall structure.  This is achieved by the application of indicators or levels of features of all positions and there being the ability to measure each position’s features by reference to those levels.

138   The PSM Act authorises the Minister to approve in writing “any procedure or classification system” (s 3(2)).  Approved Procedures 1 and 2 are such procedures.  Division 3 – Public service officers other than executive officers of the PSM Act also deals with the appointment of public service officers to positions and classification levels, in accordance with approved procedures. 

139   As Approved Procedure 1 notes, it is required that positions are assigned a classification level according to the relative worth of the job in comparison with like positions.  An assessment is made through an evaluation of the critical factors in the job such as education, skills and responsibilities.

140   The particular factors used in determining the classification of a position are:

• The value of the work performed;
• The responsibilities and skills required;
• Comparisons of the work requirements of the job (internal and external) having similar duties, responsibility and skill requirements;
• The structural relationships of the job; and
• The indicative results of the approved job evaluation tool.

141   Approved Procedure 2 which deals with Senior Executive Service (SES) and Non-SES positions above Level 8 requires a similar approach, albeit that there are more checks through that process, such checks being undertaken externally to the employing authority.  The SES Classification Quality Framework (part of exhibit A1), although no longer current, was current at the time the Arbitrator position was created.  One of the objectives of Approved Procedures established under the PSM Act is “to ensure all senior executive officer positions are appropriately classified in a consistent manner across the public sector”. 

142   Therefore, to achieve a consistent approach, the same methodology ought to be applied across the broad-banded classification structure.  This requires a common assessment tool.  BIPERS has been the approved classification tool applicable to the public sector for some time.  It is the job evaluation tool recognised as being applicable across the public service in both Approved Procedures 1 and 2.  The SES Classification Quality Framework described the BIPERS system in the following manner:

“BIPERS is the classification system approved for the classification of SES positions.  It is used as a guide to the classification level and is used in conjunction with the principles outlined above.

The BIPERS license in Australia is held by William M. Mercer Pty Limited.

BIPERS is a numerical rating system based on the following ten factors:

A Job Evaluation Questionnaire (JEQ) is used to assess the ten factors and a numerical value is assigned to each of these factors.  The total score is then compared to the points required for each for each classification level.” (exhibit A1)

143   It is true that a number of the factors applied in BIPERS relate to the management structure of the general public service involving positions which have control over people and resources.  For example, Personnel Supervised is a factor which measures how many FTEs (full time equivalents) the position directly supervises or is responsible for.

144   Yet there are factors which relate not to the particular job but to the agency.  The size of the agency is a factor which taken at its most objective would see like positions, with the same general level of skill and expertise but in different sized agencies, awarded different ratings because their agencies are of different sizes.  The same situation applies with the factor of “Subordination” where the question is “Where is the position placed in the agency’s hierarchy?”

145   Therefore, it can be seen that an assessment of the level of classification of a position is made in the context of the organisation and the sector, not merely as a free-standing position, or only by comparison with positions requiring similar skills and expertise, without regard to the broader context.

The BIPERS Assessments of the Arbitrator Position

146   One cannot ignore the decision of the legislature to include the position of Arbitrator within the public service by virtue of it being “an officer of WorkCover WA” (s 286 of the WCIM Act).  Therefore significant weight must be given to it being classified accordingly, that is in accordance with those classification mechanisms and processes applicable to the public service, which includes a BIPERS assessment.  It is very important to note that a BIPERS assessment is only one part of the process; not the only or determinative part. 

147   This is a matter which needs to be emphasised, given that the applicants have focussed very strongly on the BIPERS assessment in their challenge to the position being classified at Level 9.

148   Under the BIPERS job evaluation tool, job evaluation is undertaken according to assessment against a number of factors noted above being education; experience; scope of activity; interpersonal skills; kinds of problems; instructions received; influence on results; size of organisation; personnel supervised; and subordination level. 

149   The applicants’ main contention is that the BIPERS assessments undertaken by both Ms Giorgi and Mr Orrell were flawed because the BIPERS tool is based on a hierarchical structure, and gives greater weight or value to positions of a managerial nature, with responsibility for personnel and resources.  The existence of factor 9 Personnel Supervised or Controlled and factor 10 Subordination are said to demonstrate this. 

150   There are many positions in the public sector which are assessed according to BIPERS but which, like the position of Arbitrator, are specialist positions.  The specified callings contained within the Public Service Award 1992 and the Government Officers Salaries Allowance and Conditions Award 1989 both demonstrate this.  Many specified callings positions may not fit comfortably into a hierarchical management system but nonetheless they are classified using BIPERS.  If BIPERS were not able to be applied with some discretion and flexibility, then those positions too might arguably be under-valued.  However, BIPERS is a system which is able to be flexibly applied. 

151   I note in passing that in my experience in dealing with reclassification claims, when a job evaluation questionnaire is undertaken applicants for reclassification of their position score various factors higher than the independent assessor scores them.  This demonstrates that, amongst other things, whilst BIPERS attempts to provide an objective assessment, the application of the tool is subject to the view of the person undertaking the assessment.  Job classification systems do not and should not be considered to provide absolutely determinative, objective, scientific answers.  It may be said that the classification of positions within the public service is more art than science.  If BIPERS were purely a scientific checklist, then all that would be necessary would be a strict assessment and a numerical rating according to the ten factors without regard to all of the other considerations referred to earlier and set out in the Approved Procedures.  However, it is a tool which provides an indication of or guide to the range within which the position is likely to fall.

152   To some extent the applicants are correct, BIPERS is not an assessment tool designed to assess the position of Arbitrator.  However that argument has only superficial attraction.  BIPERS is a tool which can assess any position within the public sector because the assessment takes account of the position in context.  That context includes the organisation and its size and the public sector generally.  It is able to assess all of the possible permutations and combinations of job requirements such the education level and experience required, the interpersonal skills, scope of activities and the kinds of problems addressed, as well as organisational factors and sector-wide factors relating to numbers of employees supervised, size of organisation and the subordination level.  As Mr Orrell noted in his evidence, some factors are considered together and adjusted to take account of the position concerned.  For example, the size of the unit and the influence on results are scored together according a matrix.  Factor 1 Education and factor 2 Experience are taken together and points are scored according to a matrix. 

153   Ms Giorgi expressed the view that there was difficulty in scoring the Arbitrator position by reference to the factors of Instructions Received; Influence in Results; Size of the Agency and Subordination Level and recommended the application of an alternative job evaluation system. She did not identify any alternative system which might meet the deficit she perceived.  Nonetheless, Ms Giorgi undertook an assessment comparing the position of Arbitrator with its predecessor under the previous structure, the Review Officer.  She found that “the work value of the new Arbitrators is considered to be similar to that of the current Review Officers” (exhibit A9, p10), which was Level 9.

154   Mr Orrell says in his evidence that whilst he removed the statement which he had made in his Discussion Paper when preparing his final report, to the effect that BIPERS was a hierarchical tool which brought forth some difficulties from the assessment of these positions, nonetheless he adapted the assessment to take account of the factors applicable to these positions.  For example, he gave the highest score in factor 6: Instructions, taking account of the fact that although the Director is administratively or managerially responsible for the Arbitrator, the Arbitrator cannot be directed in his or her work.  Mr Orrell did this by interpreting the requirements and authority of the position in a way that was relevant, and the position received the benefit of that flexible approach by being awarded the highest score for that factor.  He took a similar flexible approach to factor 10 Subordination. 

155   BIPERS may not be a perfect match for these positions but it is clear that Mr Orrell has significant experience in applying the BIPERS tool for the purpose of arriving at an appropriate assessment for the very broad range of positions across the public service.  BIPERS is an assessment tool which takes account of the hierarchical nature of the public service, but it is also a tool which takes account of education and experience, skill and independence.  It can be adjusted and finetuned to take account of the multitudes of different positions.  There is flexibility both of the tool and the assessor’s application of it.  I am not satisfied that the assessment of the position is wrong because BIPERS was used. 

The Mercer CED Assessment

156   The challenges to the assessment by the applicants include that the factor which Mercer found to be applicable to the position was the “advice” factor because its comparisons were limited, the ultimate score was wrong and it did not recognise of the real value of the position.  The full structure and methodology of the Mercer CED system is not before me, however. it is clear that this evaluation system is, like BIPERS, based on dividing the requirements of the job into factors, scoring the job against those factors, and comparing it with other positions. 

157   The key characteristics of the Mercer CED system that were considered relevant to the role of the Arbitrator were expertise, judgment and accountability.  There is nothing inherently inappropriate about that.  From what is before me, I am unable to conclude that the allocation of the Arbitrator position into the “advice” category in the Mercer CED scheme is wrong, or that another categorisation was more appropriate. 

158   The applicants say that the positions which Mercer used to benchmark this position all appear to be undervalued using the Mercer score because of the relationship between the salaries of those positions and the Class 1 salary.  Mr Butler provided a list of such positions which fall below 1000 Mercer CED points, which is the minimum threshold for Class 1.  There is no indication of where below that 1000 points each of those positions falls.  One might conclude that if the positions referred to by Mr Butler as falling below 1000 points and thus below Class 1, are correctly assessed by Mercer CED then they are undervalued.  However, that does not assist the applicants.

159   The Arbitrator position scored 756, which is approximately 25% less than the 1000 Mercer CED points.  In those circumstances, it might be suggested that if 1000 points is the minimum for Class 1, then a score of 756 may be too low for a position classified at Level 9.  Either way, it is a long way short of Class 1. 

160   I note in passing that the assessment using the Mercer CED methodology arose at the applicants’ request.  It is surprising then that in making such a request they would not have been aware of the features and approach of that methodology which they now challenge.

161   As to the issue of comparison positions, the Mercer CED scheme only compares with positions it has already assessed.  That seems logical.  It does not appear to me that this makes the assessment unfair. 

Comparisons Generally

162   I understand the applicants to be referring to a range of comparison positions for two purposes.  The first is to demonstrate that by reference to particular positions, the position of Arbitrator is undervalued.  The second is for the purpose of supporting the claim for a recommendation that the position of Arbitrator be within the jurisdiction of the Salaries and Allowances Tribunal.  I will deal with that first aspect of comparison positions now.

 1. The Review Officer

163   The applicants claim that Ms Giorgi ought not to have used the Review Officer position as a comparison because it operated under a different regime with different processes. 

164   Having considered the evidence of Professor Guthrie, Mr Nisbett and Mr Melville, I conclude that the position of Review Officer was an entirely relevant comparison position.  I note that the system under which the Arbitrator operates is designed with the presence of lawyers in mind, that it provides Rules and directions, that frontloading is practised and that Arbitrators also undertake conciliation.  However, the evidence clearly demonstrates that the issues, the duties and responsibilities and the matters of complexity which confront the Arbitrator are very much the same as those which confronted the Review Officer.  They both hear and determine much the same types of claims, deal with the same or largely the same issues of law, and operate with very similar procedures such as interlocutory applications.  However, the Arbitrator deals with these in a more structured, perhaps more guided, way than the Review Officer.  As the evidence demonstrates, there have been swings and roundabouts in the changes brought in 2005, however the net effect for the work value of the Arbitrator is that the position still does very much what the Conciliation Officer and the Review Officer did.

2. The District Court Registrar

165   The applicants do not say that the position of Arbitrator is equivalent to that of District Court Registrar, but that it performs similar functions, having a similar role.

166   Mr Orrell did not pursue this comparison because it was not really urged upon him by the applicants in their submission to him.  However, in considering that comparison, I conclude that where the Arbitrator does similar things to those which the District Court Registrar does, as noted within the Mercer CED evaluation, the scope of the effect of the Arbitrator role is significantly less than that of the District Court Registrar.  The District Court Registrar is required to exercise powers in relation to the broad area of civil law within the District Court’s jurisdiction compared with the Arbitrator who exercises powers within a very narrow and constrained area.  That area of law is limited to the WCIM Act, with the addition of some other areas of law and legal principles many of which confront decision-makers in the public sector generally. 

167   The role of Arbitrator is also circumscribed by the Schedules to the WCIM Act which set out how certain payments are to be calculated including schedule 2 which is a table of compensation payable according to the nature of injury or impairment.  Schedule 3 contains specified industrial diseases.  The legislation itself provides detailed guidance and formulae to be applied.  In addition, the Commissioner has set out detailed Rules which govern the manner in which matters are to be dealt with. 

168   I recognise that the District Court also has its Rules and that the areas of law which the District Court Registrars apply may have prescribed amounts. 

169   If the point which the applicants wish to be taken from this comparison is that roles are similar, then I accept that point.  However, that does not resolve the issue of classification level as the scope and effect of the Arbitrator’s role is significantly more restricted than that of the District Court Registrar. 

3. State Administrative Tribunal Ordinary Members

170   The applicants have put very little, if any, evidence to substantiate a claim that this is an appropriate comparison.  I note that the Form 10 – Notice of Appeal filed by the applicants sought this comparison, and that it was the one pursued when Mr Orrell undertook his assessment.  The applicants have focused on the comparison with the District Court Registrar and the Chief Assessor of Criminal Injuries Compensation before me, yet they did not pursue those comparisons before Mr Orrell.

171   As Mr Hooker pointed out, the State Administrative Tribunal deals not merely with the State Administrative Tribunal Act 2004 (WA) but also with literally dozens of enabling acts, and its scope of activities and breadth of influence is far broader than the Arbitrator’s.  Therefore, like the role of the District Court Registrar, but in different ways, the State Administrative Tribunal Ordinary Member role is broader than the role of Arbitrator.  However, without more it is difficult to decide that this is a proper position to compare with the position of Arbitrator. 

4. Assessor of Criminal Injuries Compensation 

172   It is not my intention to examine the duties and powers of this position because there was no evidence of how the level of remuneration of this position is set, except that this is a statutory office, the salary is set by the Governor on recommendation from the Minister for Public Sector Management.  There is nothing before me to say why it has been aligned to the salary of a magistrate.  I am unable to conclude that it is appropriate to compare the Arbitrator position with this position without that information.

The Requirement to Act Judicially

173   The applicants say that the requirement on the Arbitrator to act judicially demonstrates the specialist nature of the position.

174   I have noted what Gregor C had to say when he dealt with an application by Peter Brash and Others v WorkCover in his decision of 8 July 1997.  The applicants in that case occupied the positions of Review Officers under the Conciliation and Review arrangement referred to earlier in these Reasons.  Theirs were the positions Ms Girogi used for comparison purposes.  Gregor C found that there are many officers within the public service who are required to act judicially and that the Review Officer position was not unique in that regard. 

175   Where the same argument of uniqueness or specialisation is relied upon by the applicants in this case, I respectfully agree with Gregor C.  I have found that notwithstanding some swings and roundabouts, the higher level of the skills, responsibility and the work requirements of the Arbitrator are very much the same as the predecessor Review Officer.

176   I also note the definition of “judicially” set out in Words and Phrases Legally Defined (4th ed) Lexis Nexis, 2007 at P1296 as being:

“JUDICIALLY

Australia [Role of Refugee Review Tribunal.]  ‘In carrying out that assessment, involving as it does a determination of great importance to an applicant, the Tribunal must act “judicially” and according to law.  In so acting the Tribunal does not exercise judicial power, but by reason of the importance of its task, the Tribunal must observe the “practical requirements of fairness” appropriate for the exercise of judicial power.  As Sedley J stated in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242 at 258:

In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts, and public law has since Ridge v Baldwin [1964] AC 40 been alive to that fact.  While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it “judicial” in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body.

‘While the expression “acting judicially” is not now often used when referring to administrative decision making, it usefully comprehends concepts relevant to this appeal.  (See: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 365).

‘Failure of the Tribunal to act “judicially” will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice.  To act “judicially” and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily.  (See: Bond per Deane J at 366-367).  That is to say, the Tribunal cannot determine the matter by a “tossing a coin” or by making a “snap decision” or by acting on instinct, a “hunch” or a “gut feeling”.’  WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [19]-[21]; BC200401353, per Lee and Moore JJ.”

177   Therefore I find that the requirement to act judicially is to “observe the practical requirements of fairness”, to “carry out its decision-making functions rationally and reasonably and not arbitrarily”, not by “tossing a coin” or making a “snap decision”, acting on “instinct” or “a hunch” or “gut feeling”.  This corresponds with the conclusion Mr Butler reached in his assessment of the position.

178   The requirement on the Arbitrator to act judicially is the same requirement which applies to many administrative decision-makers.  It does not of itself demonstrate that the position is of a specialist nature.

179   I have considered all of the material before me.  I can understand why the applicants might argue that the position of Arbitrator is under-classified if one looks at the so-called comparison positions in a superficial way.  These applications relate to the classification of the positions, not to the salary.

180   Having examined the position in context, taking account of the work value of the position, the supposed shortcomings and flexibilities of the BIPERS assessments, the positions with which the applicants say comparison ought to be made, I am not persuaded that the position is under-classified at Level 9. 

181   I noted earlier that the applicants appeared to have two purposes in making reference to the comparison positions.  The applicants’ second purpose is to support their claim that there should be a recommendation that the position be within the jurisdiction of the Salaries and Allowances Tribunal.

182   The Salaries and Allowances Tribunal sets the salaries of positions specified in the Salaries and Allowances Act 1975 (WA) and in other legislation.  Those positions include officers holding offices included in the Special Division of the public service (s 6(d)).

183   Given that I am not satisfied that the position of Arbitrator is under-classified at Level 9 within the General Division of the public service, it would be inappropriate to recommend that it be dealt with by the Salaries and Allowances Tribunal.

184   I have noted that since the original allocation of classification, the position of Arbitrator has been recognised as a specified calling and its classification adjusted accordingly.  Given that these applications relate to the original decision regarding the classification, I have not considered, nor been asked to consider the applications in the context of that allocation of specified calling.

185   It has not been demonstrated that there is error in the position of Arbitrator being classified at Level 9 or that it ought to have been classified at a higher level.

186   The applications will be dismissed.