2010 WAIRC 00206

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2010 WAIRC 00206

CORAM
: THE HONOURABLE J H SMITH, ACTING PRESIDENT
COMMISSIONER S J KENNER
COMMISSIONER S M MAYMAN

HEARD
:
THURSDAY, 11 FEBRUARY 2010

DELIVERED : THURSDAY, 15 APRIL 2010

FILE NO. : FBA 1 OF 2010

BETWEEN
:
THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED
Appellant

AND

DIRECTOR-GENERAL, DEPARTMENT FOR CHILD PROTECTION
Respondent

AND

MINISTER FOR COMMERCE
Intervener

ON APPEAL FROM:
JURISDICTION : PUBLIC SERVICE ARBITRATOR
CORAM : ACTING SENIOR COMMISSIONER P E SCOTT
CITATION : [2009] WAIRC 01348; (2009) 90 WAIG 66
FILE NO : PSACR 24 OF 2009

CatchWords : Industrial Law (WA) - Jurisdiction of Public Service Arbitrator - Jurisdiction of Public Service Appeal Board - Construction of s 80E and s 80I(1)(a) of the Industrial Relations Act 1979 (WA) - Principles of statutory interpretation applied - Whether appeal by an expublic service officer lies to the Public Service Appeal Board under s 80I(1)(a) considered - Circumstances where jurisdiction of Public Service Appeal Board may oust jurisdiction of Public Service Arbitrator considered.
Legislation : Acts Amendment and Repeal (Industrial Relations Act (No 2) (WA)
Acts Amendment (Public Sector Management) Act 1994 (WA)
Acts Amendment (Public Service) Act 1987 (WA)
Industrial Relations Act 1979 (WA) s 7, s 7(1a), s 23, s 32, s 44, s 44(6)(ba), s 44(6)(bb), s 46, s 49, s 80C, s 80E, s 80E(1), s 80E(2), s 80E(5), s 80E(6), s 80E(7), s 80F, s 80F(1), s 80F(2), s 80G, s 80G(1), s 80H(1), s 80I, s 80I(1), s 80I(1)(a), s 80I(1)(b), s 80I(1)(c), s 80I(1)(d), s 80I(1)(e), s 80J, s 80J(b), s 80K, s 80L,
Industrial Relations Amendment Act (No 4) 1987 (WA)
Interpretation Act 1984 (WA) s 10, s 18
Public Sector Management Act 1994 (WA) s 6(2), s 43, s 51A, s 52, s 64, s 67, s 76(1)(a), s 76(1)(b), s 78, s 78(1), s 78(1)(b), s 80, s 86(3)(b), s 94, s 96, s 97, s 97(1)(a), s 101, s 102, s 103
Public Service Act 1904 (WA) s 48, s 49, s 50, s 51, s 52, s 53, s 54, s 55, s 56, s 57, s 59
Public Service Act 1978 (WA)
Public Service Arbitration Act 1966 (WA)
Public Service Arbitration Amendment Act 1997 (WA) s 7
Result : Appeal dismissed.
REPRESENTATION:
Counsel:
APPELLANT : MS S BHAR AND WITH HER MS C REID
RESPONDENT : MR E REA AND WITH HIM MS M ROSS
INTERVENER : MR R ANDRETICH (OF COUNSEL)

Reasons for Decision
SMITH AP
Background and Grounds of Appeal
1 This is an appeal brought pursuant to s 49 of the Industrial Relations Act 1979 (WA) (the Act). The appeal is against a decision made by the Public Service Arbitrator on 17 December 2009 dismissing an application made under s 44, s 80E and s 80G of the Act by The Civil Service Association of Western Australia Incorporated (the appellant). In the application the appellant sought an order that the Chief Executive Officer of the Department for Child Protection (the respondent) cease a disciplinary process brought against Mr van der Zanden a former public service officer employed by the respondent.
2 The matter was heard at first instance pursuant to a Memorandum of Matters Referred for Hearing and Determination made on 10 November 2009 under s 44 of the Act. The schedule to the Memorandum states as follows:
The Applicant says that:
1. It is an organisation of employees authorised to represent Mr Luke van der Zanden, a former employee of the Department for Child Protection ('the Respondent').
2. It is in dispute with the Respondent over its power to continue a breach of disciplinary process under the Public Sector Management Act 1994 ('the Act'), when Mr van der Zanden is no longer its employee.
3. Mr van der Zanden was presented with a suspected breach of discipline letter dated 20 April 2009.
4. Mr van der Zanden provided his written response addressing the allegations to the Respondent on 8 May 2009.
5. After Mr van der Zanden had submitted his response his fixed term contract of employment expired as at 4 June 2009 and was not renewed.
6. On 11 June 2009, the Respondent sent Mr van der Zanden a letter notifying him that an investigation into the suspected breaches of discipline would be commenced pursuant to s 81(2) of the Act.
7. The Respondent advised the Applicant in a letter dated 17 September 2009 that it would continue with the investigation notwithstanding the cessation of employment.
8. The Respondent has no power under the Act to pursue a disciplinary investigation of a former employee.
9. Furthermore, the Act provides a statutory mechanism for regulating disciplinary investigations of current employees only.
The Applicant seeks an order that the Respondent ceases the disciplinary process immediately and any other orders the Public Service Arbitrator deems appropriate to resolve the dispute.
The Respondent says that:
1. There is no legislative impediment to its continuing to undertake an investigation upon the cessation of employment of the officer.
2. It is desirable and appropriate to continue with the investigation and reach a conclusion regarding Mr van der Zanden's conduct.
3. Objects to the orders sought.
3 After hearing the parties, the application was dismissed on grounds that the Public Service Arbitrator has no jurisdiction to hear and determine the matter in dispute under s 80E of the Act. The substance of the Public Service Arbitrator's decision was a finding that the Public Service Appeal Board had jurisdiction to hear and determine the claim pursuant to s 80I(1)(a) of the Act and jurisdiction of the Public Service Appeal Board is exclusive of the jurisdiction of the Public Service Arbitrator under s 80E of the Act. The effect of the decision of the Public Service Arbitrator was that the general jurisdiction of the Public Service Arbitrator is ousted by the specific jurisdiction conferred on the Public Service Appeal Board in s 80I(1)(a) of the Act. Section 80I(1)(a) confers jurisdiction on the Public Service Appeal Board to hear and determine an appeal by a public service officer in relation to an interpretation of any provision of the Public Sector Management Act 1994 (PSM Act) concerning the conditions of service of public service officers.
4 The appellant's grounds of appeal are as follows:
1. The Public Service Arbitrator erred in law and in fact in finding that she had no jurisdiction to hear the application under s. 7 Industrial Relations Act 1979 ['IR Act'] - industrial matters because the jurisdiction of the Public Service Appeal Board[PSAB] prevailed under s. 80I IR Act.
Particulars:
(a) S. 80I IR Act refers to 'conditions of service .... of public service officers.' Mr van der Zanden's contract expired on 4 June 2009, and he had no conditions of service on foot as from that date. The provisions of the PSM Act could not apply to him.
(b) After the contract had expired, the Respondent indicated that it intended to continue with the investigation, and in effect the Respondent was imposing a condition, which was to take effect after termination within the meaning s. 7 IR Act.
(c) The decision involves a misconstruction of s. 80I(a) IR Act in the sense that it was not an appeal by a public service officer in relation to the Public Sector Management Act concerning the conditions of service.
(d) The PSAB had no jurisdiction to determine the subject matter of the application, and in this instance s. 80I did not oust the jurisdiction of the Arbitrator under s. 80E IR Act.
(e) In this particular instance the application of the rule in generalia specialiabus [sic] non derogant was an error of law because on the true construction of the IR Act and the facts, it could not apply.
2. In the alternative, the Public Service Arbitrator erred in law and in fact in finding set out in paragraph 39 that 'while the Arbitrator [had] jurisdiction which is broad and encompasses the issue in dispute, the Board's jurisdiction is more specific and specialised. The jurisdiction of the Board must prevail.'
Particulars:
(a) In addition to the particulars already set out in the previous ground of appeal, the issue of the differences between public service officers and government officers in paragraph 35 is not relevant to coming to a result;
(b) The reasoning in paragraph 36 is wrong because the matter focuses on the act of the Respondent to continue a disciplinary process without statutory authority.
5 The appellant's grounds of appeal also state that the appeal should lie because the matter is of such importance in the public interest. The appellant, however, is not required by s 49(2a) of the Act to satisfy the Full Bench that the matter is of importance in the public interest as the appeal is not against a 'finding'. A 'finding' is a decision that does not finally decide, determine or dispose of the matter to which the proceedings relate.
Intervention by the Minister
6 Because the appeal raised an issue about the operation of the provisions of the Act, in particular the jurisdiction of the Public Service Arbitrator to hear and determine a matter where a matter might otherwise be brought by way of application to the Public Service Appeal Board, the Full Bench invited the Minister for Commerce to intervene in these proceedings and make submissions as to the legal issues raised in the grounds of appeal. The Minister accepted the invitation and instructed counsel to appear and make oral and written submissions in respect of the grounds of appeal.
Statement of Agreed Facts
7 No evidence was led in the proceedings before the Commission. The jurisdictional argument was heard and determined by regard to the following agreed facts:
1. The Applicant is The Civil Service Association of Western Australia Incorporated ('the CSA').
2. The CSA is a registered organisation of employees authorised to represent Mr Luke van der Zanden.
3. The Respondent is the Director General, Department for Child Protection.
4. Mr van der Zanden was employed with the Respondent pursuant to Section 64(1)(b) of the Public Sector Management Act 1994 ('the Act') as a Residential Care Officer.
5. The Respondent presented Mr van der Zanden with a suspected breach of discipline letter dated 20 April 2009 identifying three suspected breaches of discipline.
6. Mr van der Zanden responded to the three allegations in writing and provided his response to the Respondent on 8 May 2009.
7. Mr van der Zanden's fixed term contract of employment expired as at 4 June 2009. As of the expiration of Mr van der Zanden's fixed term contract Mr van der Zanden was no longer an employee of the Respondent.
8. On 11 June 2009 the Respondent sent Mr van der Zanden a letter notifying him that an investigation into the suspected breaches of discipline would be commenced pursuant to section 81(2) of the the (sic)Act.
9. On 11 September 2009 the Applicant sent the Respondent a letter stating that as Mr van der Zanden was no longer an employee of the Respondent and the Respondent had no ability to continue its investigation.
10. On 17 September 2009 the Respondent wrote to the Applicant and advised that the Respondent believed that it did have the ability to continue its investigation.
11. On 23 September 2009 the Applicant wrote to the Respondent requesting the disciplinary investigation be stayed until such time as the matter could be determined by the Public Service Arbitrator.
12. The Respondent acceded to this request.
13. The Applicant contends that the Respondent does not have the power under the Act to continue the breach of discipline process against Mr van der Zanden.
14. The Respondent contends that it does have the power under the Act to continue the breach of discipline process against Mr van der Zanden."
The Findings made by the Public Service Arbitrator
8 When the matter was heard by the Public Service Arbitrator the respondent did not dispute the contention that the Arbitrator would have jurisdiction to hear and determine the matters in dispute. However the respondent contended that the jurisdiction of the Public Service Arbitrator had been ousted because the jurisdiction of the Public Service Arbitration Board is more particular to the matter.
9 The Public Service Arbitrator observed that the terms of the Matters Referred for Hearing and Determination and the parties' submissions made it clear that the dispute did not simply involve a question of interpretation and a consequential declaration as to the meaning of the provisions of the PSM Act. She found the interpretation of the provisions of the PSM Act would deal with matters going beyond that interpretation, to include, if power exists to continue investigation and whether the respondent should be prevented from doing so. This would include also questions of merit and may involve the issuing of orders to require the respondent to cease the investigation.
10 The Public Service Arbitrator considered whether the jurisdiction of the Arbitrator was ousted by the jurisdiction of the Public Service Appeal Board on account of the principle of generalia specialibus non derogant. This Latin maxim of statutory interpretation when translated means that where there is a conflict between general and specific legislative provisions, the specific provisions prevail. In considering this issue, the Public Service Arbitrator analysed the jurisdiction of the Arbitrator in s 80E of the Act and the jurisdiction of the Public Service Appeal Board in s 80I of the Act. The Public Service Arbitrator observed that the Arbitrator's jurisdiction under s 80E of the Act is an exclusive jurisdiction to inquire into and deal with any 'industrial matter' relating to a government officer. The Public Service Arbitrator had regard to the definition of an 'industrial matter' in s 7 of the Act which relevantly provides in relation to the issue in dispute between the parties that an 'industrial matter' means:
any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to - 
…
(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;
11 The Public Service Arbitrator also had regard to the observations of Wheeler and Le Miere JJ in Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244 where their Honours found that in order to determine how to 'deal with' an industrial matter the Arbitrator must find relevant facts [30] and they went on to state:
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.
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 [31] - [32].
12 The Public Service Arbitrator set out the statutory powers of the Arbitrator to review an employer's decision and observed that pursuant to s 80E(5) of the Act, the employer's decision can be reviewed, nullified, modified or varied by the Arbitrator in the course of the exercise of jurisdiction and the Arbitrator has very wide powers to deal with the industrial matter for the purpose of resolution. In respect of the Public Service Appeal Board's jurisdiction under s 80I(1)(a), the Public Service Arbitrator observed that the Public Service Appeal Board has power to hear and determine 'an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the PSM Act concerning conditions of service … of public service officers'. The Public Service Arbitrator held that s 80I(1)(a) does not simply provide for an appeal against the employing authority's interpretation of a provision of the PSM Act. Rather it provides for an appeal against any decision in relation to an interpretation of any provision of the PSM Act concerning conditions of service of public service officers. For this reason, the Public Service Arbitrator made the finding that the power in s 80I(1)(a) is not a power to make a declaration that can be characterised as a bare or bald interpretation as discussed by the Full Bench in Crewe and Sons Pty Ltd v AMWSU (1989) 69 WAIG 2624.
13 The Public Service Arbitrator then went on to examine the meaning of the term 'conditions of service' in s 80I(1)(a) and observed whilst the term is not defined, that such conditions could be found in a number of provisions of the PSM Act. These are contained in Part 3 of the PSM Act, in particular s 64 to s 67 which deal with appointments; transfers within and between departments and organisations; secondments and vacation of office; Part 5 – Substandard performance and disciplinary matters, including rights to procedural fairness and rights of appeal; Part 6 – Redeployment and redundancy. Other miscellaneous conditions including s 102 – Employees not to engage in activities unconnected with their functions.
14 The Public Service Arbitrator pointed out that the jurisdiction of the Public Service Appeal Board includes the power to adjust all such matters under s 80I(1) of the Act and in this matter the adjustment would be to the decision of the employing authority in relation to the interpretation of any provision of the PSM Act concerning conditions of service of public service officers. The Public Service Arbitrator found that the jurisdiction of the Public Service Appeal Board in this matter would provide for the adjustment of the employer's decision in relation to the interpretation of a provision of the PSM Act concerning whether the conditions of service include the capacity of the employer to instigate or continue to investigate a suspected breach of discipline when the employment has ended.
15 The Public Service Arbitrator then turned her mind as to whether the principle of generalia specialibus non derogant applies and made the following findings:
(a) Section 80I(1)(a) of the Act is limited to persons who are public service officers who are a subset of government officers, whereas the Public Service Arbitrator's jurisdiction is broader, dealing with government officers.
(b) In respect of the subject matter of the application, the Public Service Appeal Board's jurisdiction covers the dispute as to the employer's decision in relation to an interpretation of the PSM Act concerning conditions of service of public service officers. This is more narrowly focussed on the issue in dispute, than a dispute about an industrial matter in respect of conditions which are to take effect after termination of employment. This is because the dispute is about the particular decision of the respondent, which relies upon an interpretation of the provisions of the PSM Act which relate to a condition of service, being the disciplinary process.
(c) When regard is had to the discussion about the application of the principle of generalia specialibus non derogant in the decision of the Full Bench in Bellamy v Chairman, Public Service Board (1986) 66 WAIG 1579, it follows that the legislature intended that there be a special and particular tribunal whose purpose was to deal with a claim of the nature referred for hearing and determination in this matter. This special tribunal is the Public Service Appeal Board. Consequently the jurisdiction of the Public Service Appeal Board must prevail over the general jurisdiction of the Public Service Arbitrator whose jurisdiction is broad and also encompasses the issue in dispute.
The Appellant's Submissions
16 The appellant argues that the Public Service Arbitrator misconstrued the application of s 80I(1)(a) of the Act in relation to the facts in issue. In particular they say the Public Service Arbitrator misconstrued s 80I(1)(a) by applying the maxim generalia specialibus non derogant, as this rule is only applied when two inconsistent provisions cannot be reconciled as a matter of ordinary interpretation and the maxim is a rule of last resort in overcoming direct statutory inconsistencies (Gifford D, Statutory Interpretation (1990) 111).
17 The appellant points out that the application was initiated as a registered organisation on its own behalf under s 80F of the Act which gives the appellant standing to apply to the Public Service Arbitrator. The application was not brought under s 80J of the Act. Section 80J provides that the appellant may bring an application under s 80I on behalf of the public service officer. The appellant contends that it is not acting as an agent of a member. They also say that individual employees have limited access to the Public Service Arbitrator and that this dispute was not one that an employee could have brought before the Commission under s 80E of the Act. Consequently the appellant says that the application properly invoked the jurisdiction of the Public Service Arbitrator as an 'industrial matter' pursuant to the definition in s 7 of the Act, as an industrial matter in paragraph (b) of the definition extends to any matter affecting, or relating, or pertaining to, conditions of employment which are to take effect after the termination of employment.
18 The appellant also says that the jurisdiction of the Public Service Arbitrator in relation to conditions of employment which are to take effect after termination of employment is explicit and there is no competing provision in the PSM Act to collide with, or override, it. The appellant also makes a submission that s 80I(1)(a) of the Act is for the benefit of public service officers who have contracts of employment on foot and that the PSM Act prescribes no conditions of service which are to take effect after the termination of employment. The appellant argues that s 80I(1)(a) of the Act cannot be invoked to deprive the appellant from making a s 44 application as Mr van der Zanden's contract of employment effluxed by time on 4 June 2009. On 11 June 2009, the respondent notified its former employee of its intention to commence an investigation when there was no employment relationship in existence. The contention that sits behind this submission is that once a person has ceased to hold office as a public service officer, they cannot bring an application under s 80I(1) and s 80J of the Act as at the time of making the application, the person cannot be characterised as a public service officer within the meaning of s 80I(1) and s 80K.
19 The appellant contends that if the maxim generalia specialibus non derogant should be applied, the jurisdiction of the Public Service Arbitrator to deal with conditions which are to take effect after termination of employment is a more specific power than the general power found in s 80I(1)(a) which provides the Public Service Appeal Board with jurisdiction to interpret conditions concerning the conditions of service (other than salaries and allowances) of public service officers. The appellant also argues that maxim is only to be applied when two inconsistent provisions cannot be reconciled as a matter of ordinary interpretation. They contend the apparent conflict can be reconciled by ordinary interpretation. They also say that the reference to conditions of service in s 80I(1)(a) must be given a constrained interpretation because the terminology used in s 80I(1)(a) is conceptually different to the reference to conditions of employment in s 7 of the Act. In particular they make a submission that 'conditions of service' are a subset of the genus – 'conditions of employment', and conditions which are to take effect after termination of employment is another subset of the genus.
20 The appellant contends that conditions of employment and conditions of service are not always synonymous. In developing this submission they say that the classification or definition of 'conditions of service' and 'conditions which are to take effect after termination of employment' are subsets of the genus 'conditions of employment'. In particular they rely upon the dicta of Isaacs and Rich JJ in Australia Tramway Employees Association v Prahan and Melvern Tramway Trust [1913] HCA 53; (1913) 17 CLR 680 where their Honours observed:
[A]s to the phrase 'terms and conditions of employment or non-employment.' Read secundum subjectam materiam, as words in every document must be, the word 'employment' in relation to industrial disputes has a large meaning. It certainly includes in this place, the state of employment, the acts of service rendered by an employé during his engagement, the performance of his part in the industry. The 'terms' of employment are the stipulations agreed to or otherwise existing on both sides upon which the service is performed. The 'conditions' of employment include all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment (693).
21 The appellant also relies upon the definition of 'service' in the New Shorter Oxford English Dictionary in support of its submission that conditions of service cease on cessation of office. The New Shorter Oxford English Dictionary (1993) defines service (among other things) as:
II 7 The condition, status, or occupation of being a servant or employee, …
II 8 The condition of a public servant … in the employment of a ruler or the State
III 11 Performance of the duties of a servant; work undertaken according to instructions …; a period of employment …; An act or instance of serving.
22 The appellant contends that as Mr van der Zanden was not a public service officer from 4 June 2009, Part 5 of the PSM Act which deals with disciplinary matters, could not apply to him after that date. They say that s 76(1)(a) of the PSM Act applies to "all public service officers" only and former public service officers are not prescribed persons for the purposes of s 76(1)(b) of the PSM Act. The rights of appeal specified in s 78 of the PSM Act are limited to government officers, as public service officers and by the use of the term 'employee' in s 80 of the PSM Act, that term means an employee as a current public service officer.
23 The appellant also puts forward an argument that the Public Service Arbitrator's interpretation of the application of s 80I(1)(a) of the Act and the definition of 'industrial matter' in s 7 does not accord with the purpose and objects of the Act. In support of the submission the appellant relies upon s 18 of the Interpretation Act 1984 which provides:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
24 The appellant points out that the jurisdiction of the Public Service Arbitrator and the Public Service Appeal Board as constituent authorities were established in 1984, when Part IIA, Division 2 was inserted into the Act, by the Acts Amendment and Repeal (Industrial Relations) Act (No 2) – No 94 of 1984. The current s 80I(1)(a) was inserted into the Act by the Acts Amendment (Public Sector Management) Act 1994 – No 32 of 1994 and assented to on 29 June 1994. Previously s 80I(1)(a) referred to interpretation of any provision of the Public Service Act 1978, and regulations made there under. The appellant contends that the effect of the 1994 amendments to s 80I was to continue parts of the determinative powers of the Public Service Appeal Board in respect of employer decisions. In 1994, the Public Service Board was abolished and its role devolved to employing authorities under the PSM Act. The Public Service Appeal Board was initially established by s 7 of the Public Service Arbitration Amendment Act 1997, which contained a similar power as exemplified in s 80I(1)(a). The function of the Public Service Arbitrator was established by the Public Service Arbitration Act 1966. This function predated the existence of the Public Service Appeal Board.
25 The appellant says that s 80I(1)(a) of the Act is a renovation of previous legislative changes enacted in 1984 and earlier. Consequently it is important to identify what conditions were set out in the Public Service Act and the PSM Act. The appellant points out that the Public Service Act 1904 prescribed the following conditions of service:
(a) The ability to make a deduction from salary for a fair rent: s 48.
(b) Calling upon an officer to retire or be transferred if incapable of performing duties: s 49.
(c) Forfeiture of office if convicted of an indictable offence: s 50.
(d) Deductions from salary for procuring penalties: s 51.
(e) Annual recreation leave of four weeks: s 52.
(f) Deduction from salary for unauthorised absence: s 53.
(g) Absence for illness or other pressing necessity: s 54.
(h) Leave without pay: s 55.
(i) Long service leave: s 56.
(j) Public service holidays: s 57.
(k) Mandatory retirement at 65 unless otherwise determined: s 59.
26 The 1904 Act was repealed in 1978 by the Public Service Act 1978 – No 86 of 1978. The conditions of service identified from the 1904 Act were not included. In 1978, Part IV – Discipline, s 43 to s 53 became operative. These provisions became the forerunner of Part 5 of the PSM Act – Substandard performance and disciplinary matters. Part IV did not expressly cover former officers. Section 51 provided for an appeal from a decision of the Public Service Board to the Public Service Appeal Board and this provision became the model of the more elaborately written provisions in s 78 of the PSM Act.
27 The Acts Amendment (Public Service) Act 1987 made further adjustments and inserted other structures, which became the model for the PSM Act. It shifted responsibilities to Chief Executive Officers from the Public Service Appeal Board and defined the State Executive Service, and organisations. Part 5 of the PSM Act disciplinary process did not exist in the Public Service Act 1978 until 1978. None of the 1904 conditions were repeated in the PSM Act or the PSM Regulations. The public service conditions of service identified in the 1904 Act were superseded by the conditions in either the Public Service Salaries Agreement 1985 (PSA AG 5 of 1985) or the Public Service General Conditions of Service and Allowances Award (PSA A 4 of 1989), or earlier, and thereafter by the Public Service Award 1992.
28 The appellant submits that because the 1904 public service conditions have not been replicated in the PSM Act or its immediate predecessor, the Public Service Act 1978, it is probable that s 80I(1)(a) of the Act and its previous formats were redundant or inserted on the basis of extreme caution. The appellant says that this is a situation which has been described in Gifford as:
[I]t is equally possible for a conflict to arise between different sections of the same Act. This can occur either as a result of sloppy draftsmanship or as a result of repeated amendments passed over a period of many years, creating a patchwork Act which is not the work of any one individual (112).
29 For these reasons the appellant says the application of the maxim generalia specialibus non derogant is not apposite.
30 The appellant also makes the submission that the decision in Bellamy is no longer good law because of amendments made to the Act in 1987 by the enactment of the Industrial Relations Amendment Act (No 4) 1987. These amendments included the insertion of s 44(6)(ba) and s 44(6)(bb) of the Act. The appellant says it follows that the object, and the remedial purpose of the 1987 amendments prevent the operational application of generalia specialibus non derogant and that Bellamy is only correct on its jurisdictional facts. In support of this submission they say that the Second Reading Speech to the 1987 amendments given by the Honourable J Berenson in the Legislative Council set out the policy of those amendments. In particular they referred to the following passage of Hansard:
This package of amendments, in essence, extends, clarifies, and improves the procedures and jurisdiction of the Industrial Relations Commission, its constituent parts, and the Industrial Appeals Court to enable the conciliation and arbitration process to function more expeditiously for the mutual benefit of all concerned.
That body serves the State extremely well … but as a result of the now famous Robe River dispute, subsequent decisions of the Industrial Appeals Court have revealed shortcomings in the extent of the Commission's powers to make interim orders against parties continuing to inflame the situation during the dispute settling process. It was agreed by all parties involved in the tripartite consultations that the Commission must have wide powers in order to be able to deal with the cause while controlling the symptoms of the disputation. (Hansard, 1987, (798-800).
31 The appellant also says the 1984 Act was also remedial, because it located the jurisdictions of both the Public Service Arbitrator and the Public Service Appeal Board in the Industrial Relations Commission itself, amongst other things. Indeed the powers of the Public Service Arbitrator were broadened, and those powers that existed under the Public Service Arbitration Act were redrafted, and became part of s 80E. The remedial nature of this legislation is indicated from the Second Reading Speech of the Honourable D Dans MLC (Hansard, 1984, (1053-1058).
The Respondent's Submissions
32 The respondent argues that the definition of 'industrial matter' in s 7 of the Act has no bearing on the jurisdiction of the Public Service Arbitrator in this matter. It is conceded, however, that the Public Service Arbitrator, but for the jurisdiction of the Public Service Appeal Board under s 80I(1)(a) of the Act, would have jurisdiction to deal with the application. The respondent says that the provisions of the PSM Act formed part of the conditions of employment of Mr van der Zanden's fixed term contract. The respondent says it follows therefore that the respondent's decision to continue the disciplinary process following the expiry of Mr van der Zanden's fixed term contract did not of itself, impose a condition that which was to take effect after the expiry of the contract. The respondent says that the appellant should have brought an application as an appeal to the Public Service Appeal Board to deal with the matter in dispute between the parties. The respondent points out the only grounds the appellant relied upon in its application to seek the assistance of the Public Service Arbitrator was to seek an order that the respondent cease the disciplinary process on grounds that the respondent had no power to continue the process in relation to Mr van der Zanden. The respondent also points that at no stage has the appellant claimed that the respondent was acting harshly or unfairly in its dealing with Mr van der Zanden, nor has any claim been put forward that he was denied procedural fairness or natural justice.
33 The respondent says that the jurisdiction to deal with the subject matter of the application before the Public Service Arbitrator clearly falls within the meaning and intention of s 80I(1)(a) of the Act and therefore within the exclusive jurisdiction of the Public Service Appeal Board, thereby ousting the jurisdiction of the Public Service Arbitrator. The respondent also says that the appellant, in challenging the respondent's power to continue the disciplinary process following the ending of the employer-employee relationship, ought to have filed an appeal to the Public Service Appeal Board, as the subject matter of the application to the Public Service Arbitrator amounted to an argument in, or as to the correctness or otherwise of the respondent's interpretation of the provisions of the PSM Act as they relate to Mr van der Zanden.
34 The respondent accepts that, pursuant to s 80E(1) of the Act, the Public Service Arbitrator has 'exclusive jurisdiction to enquire and deal with any industrial matter relating to a government officer' but, in doing so, says that the generality of the Public Service Arbitrator's jurisdiction is limited by the specific matters allocated by the legislature, to the Public Service Appeal Board pursuant to s 80I(1) of the Act. Consequently, the respondent says that the Public Service Arbitrator correctly applied the rule generalia specialibus non derogant.
35 The respondent contends that the subject matter of the application to the Public Service Arbitrator was whether or not the respondent in continuing the disciplinary process acted without statutory authority is matter that cannot be determined other than by way of an interpretation of the PSM Act.
36 The respondent points out that the appellant clearly filed the application on behalf of Mr van der Zanden and claimed to represent Mr van der Zanden in schedule A of the application. Further it was made clear in submissions before the Public Service Arbitrator that the application relates not to government officers generally but only to Mr van der Zanden. The application at first instance did not, for example, purport to deal with an industrial matter which affects government officers generally nor did it purport to deal with an industrial matter relating to public service officers generally. To the contrary the application at first instance purported:
(a) To represent Mr van der Zanden; and
(b) To be in dispute with the respondent's decision to continue the disciplinary process under the PSM Act when Mr van der Zanden was no longer its employee.
37 The respondent says the Public Service Arbitrator did not have the power to intervene in the application due to the fact that the subject matter of the application went to a decision of the respondent made pursuant to Part 5 of the PSM Act to continue a disciplinary process commenced prior to Mr van der Zanden's contract of employment having ended due to the effluxion of time. The respondent contends that the two inconsistent provisions under the Act to be reconciled are:
(a) The jurisdiction of the Public Service Arbitrator under s 80E of the Act to deal with any 'industrial matter'; and
(b) The exclusive jurisdiction of the Public Service Appeal Board to deal with specific matters pursuant to s 80I(1) of the Act, all of which raise 'industrial matters' which are incapable of being dealt with by the Public Service Arbitrator.
38 The respondent contends that when one reads the whole of s 80I it is clear that a person does not have to be a public service officer at the time an appeal is lodged. For example, a government officer whose employment has come to an end because of dismissal can appeal the dismissal under s 80I(1)(b) of the Act.
39 The respondent says it was open to the appellant to essentially file the same application on behalf of Mr van der Zanden for hearing by the Public Service Appeal Board. It was also open to Mr van der Zanden to file essentially the same application on his own behalf.
40 The respondent contends the Act does not preclude public service officers or government officers from seeking a remedy under s 80I(1)(a) to (e) subsequent to the termination of the contract of employment as it says that Part 5 of the PSM Act contemplates the continuation of the disciplinary process in the absence of an ongoing employment relationship.
41 The respondent accepts that conditions of employment and conditions of service are not always synonymous but says that this is irrelevant in the face of the specific matters which may be appealed to the Public Service Appeal Board pursuant to s 80I(1)(a) of the Act.
42 The respondent argues that the interpretation placed on s 80I(1)(a) of the Act by the Public Service Arbitrator is not in conflict with the definition of 'industrial matter' in s 7 of the Act. In particular, they say that the definition of 'industrial matter' in s 7, deals with the general interpretation of an industrial matter as it relates to the general jurisdiction of the Public Service Arbitrator whereas s 80I of the Act deals with specific matters (which are also industrial matters) which come within the jurisdiction of the Public Service Appeal Board.
43 The respondent does not quarrel with the history of the enactments which led to the creation of the Public Service Appeal Board, the Public Service Arbitrator, and the history of amendments to the Public Service Act 1904 but says that these enactments have no relevance to the issue in dispute in this appeal.
44 The respondent maintains that the Bellamy decision remains good law for the purpose of determining the jurisdiction of the constituent authorities of the Public Service Arbitrator and the Public Service Appeal Board.
The Minister's Submissions
45 Counsel for the Minister submits that it is clear that the substantial issue between the parties is whether the respondent can continue a disciplinary process, commenced under Part 5 of the PSM Act, after the respondent's member Mr van der Zanden ceased to be a public service officer but this appeal is not about whether proceedings may be continued against an employee who ceases to be a public service officer but to what constituent authority that question can be referred and by whom.
46 Counsel points out that Part 5 of the PSM Act contains comprehensive provisions, supported by regulations made under the PSM Act, which deal with breach of discipline proceedings against public service officers.
47 It is pointed out that s 80E(1) of the Act confers upon a Public Service Arbitrator exclusive jurisdiction to inquire into and deal with any 'industrial matter' relating to government officers, a group of government officers or government officers generally. Public service officers are by s 80C of the Act 'government officers'. Section 80F(1) of the Act provides, except in limited circumstances, not relevant here, that an industrial matter concerning a 'government officer' can only be referred by an employer, organisation, association or by the Minister.
48 The Public Service Appeal Board is constituted under s 80H(1) of the Act. Section 80I(1)(a) of the Act provides the Public Service Appeal Board with jurisdiction to hear an appeal by any public service officer against any decision of employing authority in relation to an interpretation of any provision of the PSM Act, and any provision of the regulations made under that Act, concerning conditions of service (other than salaries and allowances) of public service officers.
49 It is important to note that only specific decisions of employing authorities can be the subject of an appeal to the Public Service Appeal Board and are not identified by reference to being an 'industrial matter'.
50 Section 80J(b) enables either the public service officer concerned or an organisation on his or her behalf to institute an appeal under s 80I.
51 The Minister says that conditions of service of public service officers are to be found in:
(a) The Public Service Award 1992 and the Public Service General Agreement 2008 (the Agreement);
(b) The contract of employment; and
(c) The PSM Act and the Regulations made there under.
52 It has not been submitted that there are any relevant provisions in the Agreements or in a contract of employment. Part 5 of the PSM Act deals comprehensively with disciplinary proceedings that may be commenced against a public service officer and are properly considered conditions of service. Part 5 prescribes the circumstances under which disciplinary proceedings may be commenced, the process to be followed and the penalties that are available when a breach of discipline is found, where 'a person has committed a breach of discipline while serving as an employee' in a 'public sector body'.
53 An appeal under s 80I(1)(a) must concern a decision in relation to an interpretation of any provision under the PSM Act concerning conditions of service of public service officers. That an appeal may be instituted by or on behalf of a public service officer after employment has ceased, is clear, as appeals are available against decisions to dismiss: s 80I(1)(c) and s 80I(1)(e).
54 The issue squarely raised in these proceedings involves an interpretation of Part 5 of the PSM Act, that is, whether it is possible to bring to an end disciplinary proceedings against a former public service officer when those proceedings were commenced at the time when he was a public service officer.
55 It is contended that it simply must be a condition of service that you are amenable to some sort of penalty for transgression of employment when you are employed as a public service officer. It is inarguable that that is not a condition of service and it cannot be a condition which takes effect after employment has been completed. It is a condition of service of a public service officer that he or she will be amenable to some sort of punishment or penalty as a result of a disciplinary breach that occurred whilst employed, as a serving officer.
56 It is argued by the Minister that the continuation of a disciplinary process is a condition of service and is not a condition which takes effect after service has ended.
57 The Minister agrees with the submissions made on behalf of the respondent that this was an application made on behalf of Mr van der Zanden, a former public service officer and the application concerned the interpretation of the provisions of the PSM Act. Prior to the enactment of s 7(1a) of the Act which provides that a matter relating to the dismissal of an employee by an employer; or the refusal of an employer to allow an employee a benefit under his contract of service remains an industrial matter for the purpose of the Act even though their relationship of employee and employer has ended. It might have been argued at one time that no industrial matter arose in the case of unfair dismissal once the dismissal had taken effect, because the relationship of employer and employee (upon which the Commission's jurisdiction is founded) had come to an end: see Industrial Appeal Court in Robe River Iron Associates v Association of Draughting, Supervisory and Technical Employees of WA (1987) 68 WAIG 11 (Pepler's case). Mr Andretich on behalf of the Minister directed the Full Bench's attention to s 7(1a) of the Act which only extends the jurisdiction of the Commission to deal with a matter relating to a dismissal of an employee or the refusal to allow a contractual benefit. The Minister says this provision does not extend to the matter which was before the Public Service Arbitrator as the subject matter before the Public Service Arbitrator was a statutory condition of employment. The disciplinary provisions in Part 5 of the PSM Act apply as a matter of statute. The Minister says it follows therefore that as this matter does not come within the extension in s 7(1a) as the jurisdiction of the Public Service Arbitrator relies upon an employment relationship being on foot. Consequently if the Public Service Arbitrator has no jurisdiction because an industrial matter is not raised, the only application that can be made is under s 80I(1)(a) of the Act to the Public Service Appeal Board.
58 It is also argued on behalf of the Minister that the power to consider conditions of service in s 80I(1)(a) is very wide. In Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 Toohey J stated that it may be accepted that there will be always be a question of degree involved where the issue is the relationship between two subject matters. The words 'in relation to' are wide words which do more, at least without reference to context, than signify the need for there to be some relationship or connection between the two subject matters.
59 It is contended that the decision under consideration can fairly be described as one which relates to the interpretation of the provisions of the PSM Act concerning conditions of service of public service officers. That is, whether Part 5 provides the power to continue disciplinary proceedings after a public service officer has resigned. It is said that whether the disciplinary process should be continued or whether it is an abuse of the disciplinary process as a matter of merit to continue the process after Mr van der Zanden's fixed term contract has come to an end is a matter going to the individual merits of Mr van der Zanden's position which has not at this point been argued and this is a matter that can be dealt with by the Public Service Appeal Board under s 80I(1)(a) of the Act, and that is the proper forum for those issues to be raised and determined.
60 The scheme of the Act is not for a constituent authority or the Commission to have concurrent jurisdiction over matters in respect of which jurisdiction has been specifically conferred. The scheme of the Act is clear. Where a matter is one in respect of which the Public Service Appeal Board has jurisdiction, relief cannot be sought from the Public Service Arbitrator or the Commission, and is only available to the persons specified in the relevant section. It is not a sensible interpretation that the legislation intended relief could be sought from either the Public Service Arbitrator or the Public Service Appeal Board in respect of matters where jurisdiction has been specifically conferred upon the Public Service Appeal Board. The Commissioner, with respect, correctly set out the approach to be followed in construing the relevant provisions in paragraph [37] of her reasons and correctly concluded that the legislature intended that the Public Service Appeal Board, only, could hear and determine the powers of an employing authority in relation to the disciplinary process conducted under the PSM Act against Mr van der Zanden.
The Appellant's Submissions in Reply
61 The appellant was granted leave to file and serve written submissions following the hearing of the appeal on 11 February 2010. The appellant filed written submissions in reply on 26 February 2010. In the written submissions the appellant made a number of comprehensive submissions in respect of the following matters.
62 The appellant submits that respondent's and Minister's submissions are unsustainable as a matter of interpretation, in particular their submissions are not in accord with s 6(2) of the PSM Act and s 80E of the Act, or the objects and purpose of the Act. Section 6(2) of the PSM Act provides:
Except to the extent to which a provision of this Act specifies otherwise, the Industrial Relations Act 1979 applies to and in relation to matters dealt with by this Act.
63 Consequently it said that s 6(2) requires an express provision of the PSM Act to override the provisions of the Act.
64 The appellant points out the jurisdiction exercised by the Public Service Arbitrator under s 80E(1) is not expressly trammelled by the jurisdiction of the Public Service Appeal Board under s 80I, because s 80E is not expressly subject to s 80I. Under s 80I(1) the Public Service Appeal Board is subject to s 52 and s 94 of the PSM Act. Neither s 80E nor s 80I is expressed as subject to any other provisions of the Act. The absence of this type of restriction from both jurisdictions contrasts with s 23 of the Act which sets out the general jurisdiction of the Commission as being 'subject to this Act'. This means that the general jurisdiction of the Commission is displaced by either the jurisdiction of the Public Service Arbitrator or the Public Service Appeal Board as the case may be. Hence in this context Bellamy was rightly decided, but can not be extended to the current controversy.
65 The appellant says the jurisdiction of the Public Service Arbitrator under s 80E is, however, subject to Division 3 of Part II of the Act which deals with the power of the Commission to make general orders, including orders for public sector discipline under s 51A. Otherwise, the jurisdiction of the Public Service Arbitrator under s 80E, is subject to subsections (6) and (7) of s 80E. These subsections deal with referring matters to the Commission in Court Session or to the Full Bench, which are not relevant to this matter; or to public sector standards as referred to in s 97(1)(a) of the PSM Act.
66 Section 80I does not expressly exclude the appellant from making an application under s 80E. Ouster of jurisdiction should not be effected by implication, but by express intendment: Owen J in Bateman Project Engineering Pty Ltd v Resolute Ltd [2000] WASC 284. Section 80I is not like s 80E(7) which ousts the jurisdiction of the Public Service Arbitrator with respect to public sector standards under s 97 of the PSM Act, except for those standards relating to substandard performance or discipline because of the operation of s 96 of the PSM Act.
67 During the course of the appellant's submissions the appellant was asked by the Bench why the 1987 changes to s 44 of the Act was significant and relevant to the jurisdiction of the Public Service Arbitrator under s 80E(1). The appellant says the changes to the Act initiated in 1984 and 1987 were remedial. Consequently they argue that the object and purpose of the amendments must be considered as paramount rather than a minor canon like generalia specialibus non derogant. They also say the same rationale applies to the 2002 amendments to the definition of 'industrial matter' by the enactment of the Labour Relations Reform Act 2002. The appellant also argues that amendments made in 2002 to the definition of 'industrial matter' in s 7 of the Act broadened the scope of matters that the Commission may deal with as industrial matters and extend beyond the existence of an employment relationship. In 2002 by the enactment of the Labour Relations Reform Act 2002 the following words were inserted into the definition of 'industrial matter' following immediately after s 7(i):
and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute but does not include —
68 In Director General, Department of Justice v Civil Service Association of Western Australia Incorporated (2004) WAIRC 13765 Sharkey P stated, with whom Gregor C and Kenner C agreed:
Most specifically, there is not required to be any direct relationship, as required by the authorities, before the amendments of 2002 were enacted. The words of an 'industrial nature' are a clear recognition that now there is not to be required to be an employment relationship provided that there is a dispute, the matter is one of an industrial nature and/or there is a situation likely to give rise to a dispute [33].
69 The appellant contends that the 2002 amendments and the observations made by the Full Bench in that case, contrary to the respondent's and Minister's submissions, has the effect that the line of reasoning considered in Pepler's case with respect to limiting the application of the words in s 7 - 'including conditions which are to take effect after the termination of employment' can no longer stand.
70 They say that in 1987 there were changes to the jurisdiction of the Public Service Arbitrator in s 80E by virtue of amendments to s 44 of the Act. However, there were no changes to the jurisdiction of the Public Service Appeal Board at that time. They point out pursuant to s 80G(1) of the Act, s 44 applies to the exercise of the jurisdiction of the Public Service Arbitrator. The appellant contends the s 44 amendments in Division 2C Part II of the Act enhanced both the conciliation and arbitration powers of the Public Service Arbitrator to make interim orders in the case of harsh, oppressive or unfair dismissal, and other orders 'as will ... (i) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved the matter'. They say it follows from these amendments that as the Public Service Arbitrator's powers and jurisdiction were enhanced in 1987, and not the Public Service Appeal Board's jurisdiction, it is difficult to apply the principle generalia specialibus non derogant because s 80E cannot be considered 'impliedly repealed by a later inconsistent special [provision]'; see Gifford at p 111 and the authorities cited therein. This submission also applies to the 2002 amendments to the definition of 'industrial matter' as the jurisdiction of the Public Service Appeal Board in s 80I(1)(a) remained unchanged.
71 The appellant disputes the submission made on behalf of the Minister that disciplinary provisions of the PSM Act in Part 5, Division 3 can be classified as conditions of service or employment. The appellant says that more likely the statutory provisions impose a status or burden on the employee and vest a right or power in the employer, and thus on the basis of this classification, the disciplinary incidents would be within the power of the Public Service Arbitrator in the absence of a general order for public sector discipline. In Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241, the Industrial Appeal Court held unanimously that the Public Service Arbitrator had power to intervene in the PSM Act disciplinary processes if it found that the allegations were baseless. The appellant says that it can be implied from this decision that the disciplinary process is not a condition of service for the purposes of s 80I(1)(a).
72 The appellant argues that the disciplinary provisions of the PSM Act are not terms of contract. In support of this submission they rely upon the observations of Scott J in Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch [2002] WASCA 355 at [22] and [23] in which his Honour made observations about the statutory status of an industrial agreement once freely and voluntarily made and registered. They also rely upon the observations of McHugh and Gummow JJ in Byrne and Frew v Australian Airlines Ltd [1995] HCA 24 who approved the observations of Gibbs J in Australian Broadcasting Commission v Industrial Court (SA) (1977) 138 CLR 399 who with other members of the Court considered the terms of the 1972 South Australian Act which empowered the Industrial Court to order re-employment of employees or temporary employees of the Australian Broadcasting Commission. In respect of these provisions Gibbs J observed that:
Those provisions do not require a new term to be implied in every contract of employment. They do not give a quasi-contractual right to every employee. They confer jurisdiction and power upon the industrial Court to make orders of the kind therein described. The jurisdiction is not limited to cases in which the dismissal has been in breach of contract or otherwise wrongful. ... In other words s 15(1)(e) is not a part of the State law regarding contracts of employment (403).
73 The appellant points out that the agreed statement of facts evinces a dispute of an industrial nature and so does Schedule A attached to the s 44 application. They also point out that the Public Service Arbitrator accepted there was a dispute between the parties. The issue was which authority had jurisdiction. However, the appellant says that the Public Service Arbitrator wrongly concluded that the disciplinary process related to a condition of service.
74 In the appellant's written submissions filed on 4 February 2010, the appellant identifies what it says are conditions of service in the PSM Act. They now say in their written submissions filed on 26 February 2010, that they omitted to include modes of employment under s 64 of the PSM Act as a condition of service and should have done so.
75 The appellant also says that while the jurisdiction of the Public Service Arbitrator is constrained by the existence of public sector standards pursuant to s 80E(7) of the Act, the jurisdiction of the Public Service Appeal Board under s 80I(1) or elsewhere is not. They say this means that a decision of an employing authority with respect to conditions, like modes of employment or transfer may be appealed even if the appeal raises an issue of a breach of a public sector standard in passing or otherwise. The absence of a privative provision in s 80I(1) tends to support the appellant's broad submission that the Public Service Arbitrator has jurisdiction to determine this dispute.
76 The appellant says they are not seeking a 'bald' interpretation of the PSM Act. They say they are seeking a particular end, the cessation of the investigation on the grounds of a lack of statutory authority.
77 The appellant has standing in their own right to invoke s 80E(1) rather than to institute an appeal under s 80I. There is a conceptual difference between the notion of industrial dispute and an appeal. Further they say that s 80J(b) does not give the appellant status as an applicant or appellant. Under s 80J(b) the appellant as an industrial association is a mere agent of the appealing employee. They contend that given the history of and evolution of the definition of 'industrial matter' it was not the intention of the legislature to limit union initiated disputes under s 80E by implication.
78 Whether one provision excludes the operation of another was considered in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50; and applied by the Full Bench in The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v The Roman Catholic Bishop of Bunbury Chancery Office (2007) 87 WAIG 1147. The appellant contends that applying Gleeson CJ's observations in Nystrom the two provisions, s 80E and s 80I, are not 'repugnant, in the sense that they contain conflicting commands which can not both be obeyed, or produce irreconcilable legal rights or obligations'. The appellant says that neither the respondent nor the Minister has identified any repugnancy. There are no conflicting commands nor irreconcilable rights or duties.
79 The appellant also says that the observations of Gummow and Hayne JJ in Nystrom should also be applied as s 80I and s 80E do not cover the 'same power' or the 'same subject matter'. They also contend that s 80I is not declared exhaustive by its provisions. Consequently they say one provision does not encroach on the other. They also contend that the structure and application of s 80E and s 80I(1)(a) is different, and so the reasoning by the Full Bench in The Roman Catholic Bishop of Bunbury Chancery Office which concerned the application of s 44 and s 46 with respect to applications for interpretation is not an apposite analogy. They say in the words of Heydon and Crennan JJ in Nystrom, the powers of the Public Service Arbitrator set out in s 80E(5) of the Act are different from the powers 'to adjust' set out for the Public Service Appeal Board in s 80I(l) with respect to the criteria for their exercise and consequences. They contend that both s 80E and s 80I are special powers, which 'are consonant with each other'.
80 Consequently the appellant argues that the Minister's submission that the observations of Toohey J in Smith cannot withstand scrutiny because of the decision in Nystrom, including the application of its principles in The Roman Catholic Bishop of Bunbury Chancery Office by the Full Bench.
81 The appellant also argues that the decision of Kenner C in Civil Service Association of Western Australia Incorporated v Disability Services Commission [2005] WAIRC 01349 and the arguments considered when the matter went on appeal in Civil Service Association of Western Australia v Disabilities Services Commission [2005] WAIRC 02043 set out similar arguments presented by the appellant in this matter to the arguments presented in the Disability Services Commission cases. Further they say there was an erroneous reliance on Bellamy in the Disability Services Commission cases and a failure to consider the 1987 amendments to the Act. However, they point out that the Disability Services Commission matter and this appeal demonstrate an ongoing controversy and vexed question in which there is a public interest about the jurisdiction of the Public Service Arbitrator and jurisdiction of the Public Service Appeal Board.
Conclusion
82 The first question that must be resolved in this appeal is whether the Public Service Arbitrator had jurisdiction to deal with the matters in dispute but for the jurisdiction of the Public Service Appeal Board. If the answer to that question is yes, then the next question that must be answered is whether the Public Service Appeal Board had jurisdiction to deal with the matters in dispute. If the answer to that question is no, then no conflict between s 80E and s 80I would arise. If, however, the answer is yes, then the issue whether the maxim generalia specialibus non derogant applies to oust the jurisdiction of the Public Service Arbitrator must be considered.
(a) Jurisdiction of the Public Service Arbitrator
83 The powers of the Public Service Arbitrator which are relevant to this appeal are contained in s 80E(1), s 80E(2), s 80E(5), s 80F(1), s 80F(2) and s 80G of the Act. Section 80E(1), s 80E(2) and s 80E(5) of the Act provides:
(1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer, a group of government officers or government officers generally.
(2) Without limiting the generality of subsection (1) the jurisdiction conferred by that subsection includes jurisdiction to deal with — 
(a) a claim in respect of the salary, range of salary or title allocated to the office occupied by a government officer and, where a range of salary was allocated to the office occupied by him, in respect of the particular salary within that range of salary allocated to him; and
(b) a claim in respect of a decision of an employer to downgrade any office that is vacant.
…
(5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.
84 Section 80F(1) and (2) of the Act provides:
(1) Subject to subsections (2) and (3) an industrial matter may be referred to an Arbitrator under section 80E by an employer, organisation or association or by the Minister.
(2) A claim mentioned in section 80E(2)(a) may be referred to an Arbitrator by the government officer concerned, or by an organisation on his behalf, or by his employer.
85 Section 80G of the Act provides:
(1) Subject to this Division, the provisions of Part II Divisions 2 to 2G that apply to or in relation to the exercise of the jurisdiction of the Commission constituted by a commissioner shall apply with such modifications as are prescribed and such other modifications as may be necessary or appropriate, to the exercise by an Arbitrator of his jurisdiction under this Act.
(2) For the purposes of subsection (1), section 49 shall not apply to a decision of an Arbitrator on a claim mentioned in section 80E(2).
86 It has long been established that paragraph (b) of the definition of 'industrial matter' in s 7 of the Act extends to claims by former employees in respect of matters that come within this provision. Paragraph (b) of the definition of 'industrial matter' in s 7 of the Act provides:
industrial matter means any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to — 
(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;
87 Whether conditions of employment that take effect after an employment relationship has ceased can be considered an 'industrial matter' was raised in Totalisator Agency Board v Federated Clerks' Union of Australia, Industrial Union of Workers, WA Branch (1980) 60 WAIG 624. Prior to Pepler's case and the amendment to s 7(1a) to extend the definition of 'industrial matter' and the amendment of the definition of 'industrial matter' in (b) to include the words 'which are to take effect after the termination of employment' the Industrial Appeal Court was called upon to consider the scope of the words 'industrial matters' in the Industrial Arbitration Act 1912. The Court held an 'industrial matter' includes the question of alternative employment with another employer in redundancy, even though it related to a matter which was to come into effect after the employment relationship had ended. Brindsen J with whom Smith J agreed held that the foundation of the clause in the award in question was an existing employment relationship whereby any employer bound by the award who had an alternative position available was required to offer that position to the employee of another employer affected by the redundancy order. His Honour found the matter was an industrial matter as the matter affected or related to the rights or privileges of a worker in an industry. The Presiding Judge of the Industrial Appeal Court, Wallace J made a similar finding. He, however, also observed that paragraph (b) of the definition of 'industrial matter' in the 1979 Act would put the matter completely beyond doubt. In Amalgamated Metal Workers and Shipwrights Union of Australia, WA Branch v Bell Bros Pty Ltd (1983) 63 WAIG 1547 the Full Bench applied the reasoning in Totalisator Agency Board and held a claim by a former employee to be paid pro rata long service leave following retrenchment by his employer was an 'industrial matter'.
88 In my view these decisions put the issue whether disciplinary proceedings can be continued post employment under Part 5 of the PSM Act beyond doubt. It is clear that such a matter arises out of the employment relationship as disciplinary action under Part 5 is a matter relating to or pertaining to terms and conditions of employment which are to take effect after the termination of employment. In absence of considering the issue whether the Public Service Appeal Board has jurisdiction to hear and determine this matter or whether s 80I(1)(a) ousts the jurisdiction of the Public Service Arbitrator, the jurisdiction of the Public Service Arbitrator was but for the determination of that issue properly enlivened in this matter.
89 It is also correct at law that the appellant is empowered under s 80F to bring an application under s 80E in their own right. When an application is made by an organisation under s 80E, the organisation does not act as an agent for any member of the organisation even though the rights of a member or members may be directly affected by the issue or issues in dispute: R v Dunlop Rubber; Ex Parte FMWU (1957) 97 CLR 71, 81  85 (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ). Therefore, the fact that the application before the Public Service Arbitrator in this matter relates only to Mr van der Zanden, does not have the effect that the appellant acts as an agent for Mr van der Zanden. This issue, however, in my view is not determinative in the resolution of this appeal.
(b) Jurisdiction of the Public Service Appeal Board
90 The power of the Public Service Appeal Board to hear and determine a decision in relation to an interpretation of the PSM Act is set out in s 80I(1)(a) of the Act. Section 80J is also relevant to this appeal. Section 80I(1) provides:
(1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine — 
(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;
(b) an appeal by a government officer, who is the holder of an office included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975, under section 78 of the Public Sector Management Act 1994 against a decision referred to in subsection (1)(b) of that section;
(c) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary not lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed;
(d) an appeal by a government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision referred to in subsection (1)(b) of that section;
(e) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed,
and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e).
91 Section 80J provides:
An appeal under section 80I — 
(a) shall be instituted in the prescribed manner and within the prescribed time;
(b) may be instituted by the public service officer or other government officer concerned or by an organisation on his behalf.
92 A central issue sitting behind the appellant's arguments is whether the Public Service Appeal Board has jurisdiction to hear and determine an appeal under s 80I(1)(a) by a former public service officer. The exercise of jurisdiction of the Public Service Appeal Board to hear and determine an appeal under s 80I is contained in s 80L of the Act and s 78(1) of the PSM Act. Section 80L of the Act provides:
(1) Subject to this Division the provisions of sections 22B, 26(1) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 34(3) and (4) and 36 that apply to and in relation to the exercise of the jurisdiction under this Act of the Commission constituted by a commissioner shall apply, with such modifications as are prescribed and such other modifications as may be necessary, to the exercise by a Board of its jurisdiction under this Act.
(2) For the purposes of subsection (1) section 31(1) shall apply as if paragraph (c) were deleted and the following paragraph were substituted — 
"
(c) by a legal practitioner.
".
93 Section 78(1) of the PSM Act provides:
(1) Subject to subsection (3) and to section 52, an employee who —
(a) is a Government officer within the meaning of section 80C of the Industrial Relations Act 1979; and
(b) is aggrieved by a decision made in the exercise of a power under section 79(3)(b) or (c) or (4), 82, 86(3)(b), (8)(a), (9)(b)(ii) or (10)(a), 87(3)(a), 88(1)(b)(ii) or 92(1),
may appeal against that decision to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.
94 It is notable that s 78 of the PSM Act does not apply to an appeal under s 80I(1)(a) of the Act. Whereas the general jurisdiction of the Commission under s 23 of the Act and the jurisdiction of the Public Service Arbitrator under s 80E of the Act is in respect of an 'industrial matter', the jurisdiction of the Public Service Appeal Board is not confined to or defined by reference to an 'industrial matter' but by the express terms of the relevant provisions that confer jurisdiction on the Public Service Appeal Board. In respect of s 80I(1)(a) jurisdiction is conferred upon the Public Service Appeal Board to hear an appeal against a decision in relation to an interpretation of any provision to the PSM Act, any provision of any regulations made under that Act, concerning conditions of service (other than salaries and allowances) of public service officers.
95 I do not agree that the term 'conditions of service' in s 80I(1)(a) should be read narrowly as the appellant contends. Historically, officers who are employed by the Crown or government agencies were career appointments and career appointments are still made under the PSM Act. These officers receive a salary for holding office as a public service officer. In the past they were appointed as 'public servants'. The term 'conditions of service' in s 80I(1)(a) of the Act in my view has no special meaning and perhaps can be said to have been used in s 80(1)(a) because of the statutory context of appointment of public service officers rather than employment at common law. This does not mean that the majority of persons appointed to positions under the PSM Act would not be regarded as employees at common law. At common law the term 'conditions of service' can be construed as broadly as the term 'conditions of employment': see the brief observations of Kirby J in Westwood v Lightly (1984) 2 FCR 41 (50 - 51) in relation to the expression 'terms and conditions of service'. In my opinion the term 'conditions of service' is wide enough to encompass all statutory and contractual terms of appointments. It follows therefore that the Public Service Arbitrator did not err in finding that the provisions of Part 5 of the PSM Act are conditions of service. Part 5 contains a statutory code of conditions which apply to substandard performance and disciplinary matters in relation to, among others, public service officers.
96 A more difficult issue is whether the appellant may institute an appeal on behalf of an expublic service officer under s 80I(1) and s 80J(b) of the Act. Can the circumstances of a person whose employment as a public service officer has ceased but who wishes to appeal a decision that relates to a condition of service or conditions of service that applied during his or her employment be characterised as 'an appeal by any public service officer' within the meaning of s 80I(1) of the Act?
97 The words 'an appeal by any public service officer' should not be construed in isolation or without regard to the whole of s 80I and without regard to the legislative scheme as a whole. I recently observed in Liquor, Hospitality and Miscellaneous Union, Western Australian Branch v Director General, Department of Education and Training (2010) 90 WAIG 127 the modern approach to statutory construction requires courts and tribunals when construing legislation to have regard to the legislative scheme. In particular I said:
As Ritter AP observed in Kenji Auto Parts Pty Ltd t/as SSS Auto Parts (WA) v Fisk (2007) 87 WAIG 328 [38] statutory construction involves a consideration and analysis of the meaning of the words used in a section in the context of the legislation and legislative scheme as a whole, to try to discern the intention of the legislature: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (381) (McHugh, Gummow, Kirby and Hayne JJ); and Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401 [8] (Gleeson CJ). Courts must seek to ascertain the statutory purpose and legislative intention from the words used in the statute (and can use other aids as are legitimately available). Where the will of Parliament is clear, a court or tribunal must give effect to that clearly expressed will [16].
98 In Project Blue Sky Inc, McHugh, Gummow, Kirby and Hayne JJ observed at 381-382:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (see Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole' (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, 'in the context of the legislation read as a whole'). In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J) [69].
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (See Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J). Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other' (Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme [70].
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision (The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffith CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ). In The Commonwealth v Baume at 414 Griffith CJ cited R v Berchet ((1688) 1 Show KB 106 [89 ER 480]) to support the proposition that it was 'a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent' [71].
99 The obligation on a court or tribunal when construing legislation is to prefer a construction that will promote the purpose of legislation and to avoid the construction that would not promote that purpose or object: s 18 of the Interpretation Act 1984. Context is an aid to statutory interpretation. In Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 Kirby J noted there are three interpretative principles:
Purposive interpretation: The first principle holds that a purposive and not a literal approach (Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290) is the method of statutory construction that now prevails (Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423, per McHugh JA, approved in Bropho v Western Australia (1990) 171 CLR 1 at 20):
'A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.' [35].
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321). As Lord Diplock explained, in an extra-judicial comment (Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641), "if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed" (Diplock, "The Courts as Legislators", in The Lawyer and Justice (1978) 263, at p 274, cited in Kingston (1987) 11 NSWLR 404 at 424) [36].
Contextual interpretation: The second principle holds that the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical (R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28], per Lord Steyn). In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word, such as "pawned", and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings (Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561) [37].
Access to extrinsic materials: The third principle holds that courts, in construing contested statutory language, may have resort to extrinsic materials, in order to throw light on the meaning of that language and the purpose of Parliament (cf Interpretation Act 1987 (NSW), s 34(1)). This development allows a court, resolving the question, to consider a wider range of materials than was previously available to judges. Such materials may not contradict the statutory text (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518). However, where, as here, there is ambiguity in the statutory text – such that there is a question as to whether the language has a strict meaning of a particular kind or is used in a more common sense of everyday speech – courts now have access to extrinsic materials, to help resolve that ambiguity. In this case, such extrinsic materials include the Minister's Second Reading Speech, made in support of the Bill that became the Act that contains the contested expression (Interpretation Act 1987 (NSW), s 34(2)(f)) [38].
Time was, not so long ago, that Australian lawyers could say with reasonable confidence that this Court consistently applied the foregoing principles, which are obviously inter-related. That trend was encouraged by legislative instruction (Acts Interpretation Act 1901 (Cth), s 15AA; Interpretation Act 1987 (NSW), s 33; Interpretation of Legislation Act 1984 (Vict), s 35(a); Acts Interpretation Act 1954 (Q), s 14A; Acts Interpretation Act 1915 (SA), s 22; Interpretation Act 1984 (WA), s 18; Acts Interpretation Act 1931 (Tas), s 8A; Legislation Act 2001 (ACT), s 139; Interpretation Act (NT), s 62A). Obviously, there are limits to any interpretation that involves an apparent departure from requirements that appear to be demanded by the language of the legislation. Moreover, interpretation is a text-based activity (Trust Co of Australia Ltd v Commissioner of State Revenue (Q) (2003) 77 ALJR 1019 at 1029 [68]; 197 ALR 297 at 310; Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 271 at 305-306 [87]) in which divergences of opinion are common and inescapable (Federal Commissioner of Taxation v Scully (2000) 201 CLR 148 at 175-176 [54]; News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 at 580 [42]) [39].
Because the approach taken by this Court to problems of statutory interpretation is influential upon all Australian courts, we should be on guard against any temptation to return to the dark days of literalism (Federal Commissioner of Taxation v Ryan (2000) 201 CLR 109 at 146 [82]). Above all, this Court should strive to be consistent. In all cases, but especially in legislation enacted to achieve important social objectives, the purposive approach is the correct one to follow [40].
100 It is also notable that under s 80I(1)(b) and (d) an appeal to the Public Service Appeal Board lies by a 'government officer' against a decision under s 78(1)(b) of the PSM Act. Under s 78(1)(b) of the PSM Act an employee who is a 'government officer' may appeal a decision (amongst others) made in the exercise of a power under s 86(3)(b) which includes a power to dismiss. An appeal by a 'government officer' other than an appeal under s 78(1)(b) also lies against a decision to dismiss under s 80I(1)(e) of the Act. Pursuant to s 80J an appeal is required to be instituted within the prescribed time. The time prescribed under the regulations is 21 days after the date of the decision: r 107 of the Industrial Relations Commission Regulations 2005. Whilst the time prescribed is not material, it is a matter of common sense that in a majority of matters an application is unlikely to be filed prior to a decision to dismiss taking effect, so that at the time of making a decision the person concerned would have ceased to hold office as a 'government officer'. Consequently if s 80I was to be construed as conferring jurisdiction on the Public Service Appeal Board to hear appeals by 'government officers' (or public service officers in the case of an appeal under s 80I(1)(a)) whose contracts of employment are still on foot, the legislative scheme of appeals to the Public Service Appeal Board would be frustrated to a large extent as one of the most important categories of appeals the Public Service Appeal Board has jurisdiction to hear and determine are appeals against a decision to dismiss.
101 Whilst s 80I(1)(a) does not expressly contemplate an appeal against a dismissal, as the provision provides for an appeal against any decision in relation to an interpretation of any provision of the PSM Act and any provision of the regulations made under that Act, concerning conditions of service, a decision could be made under the PSM Act which has the effect of, or concerned, conditions of employment that are to take effect on or following termination of employment. For example, a decision about compensation for early termination of employment which raises an interpretation of s 101 of the PSM Act in respect of maximum compensation payable on early termination of employment could be made by an employing authority. If s 80I(a) is interpreted to confine appeals to persons who serve as public service officers at the time an application is lodged such an appeal under s 80I(1)(a) of the PSM Act would not lie, if s 80I was to be construed as not applying to an ex-employee. Another example where s 80I(a) could not be enlivened if the provision is construed in this way is in relation to a dispute about a decision made under s 103 of the PSM Act and the interpretation of that provision in respect of re-appointment of an unsuccessful electoral candidate who had been a public service officer and who had resigned prior to nominating for election as required by s 103.
102 For these reasons, I am of the opinion that without considering the jurisdiction of the Public Service Arbitrator to deal with the matters in dispute in the application, the Public Service Appeal Board would have jurisdiction to hear and determine an appeal under s 80I(1)(a) which raises the matters that are raised in the application.
(c) Generalia specialibus non derogant
103 In Hungry Jacks Pty Ltd v Wilkins (1991) 71 WAIG 1751 Nicholson J conveniently summarised the law in respect of the canon of construction, generalia specialibus non derogant as follows at (1755):
As stated by O'Connor J in Goodwin v. Phillips (1908) 7 CLR 1 at 14 it is:
'Where there is a general provision which, if applied in its entirety, would neutralize a special provision dealing with the same subject matter, the special provision must be read as a proviso to the general provision, and the general provision, in so far (sic) as it is inconsistent with the special provision, must be deemed not to apply.'
This is a principle applicable to determining the effect of a later statute on an earlier statute and for resolving a conflict between two sections of the one act: see D C Pearce, Statutory Interpretation in Australia (1988) at 83 and 149. In The Bank Officials' Association (South Australian Branch) v. The Savings Bank of South Australia (1923) 32 CLR 276 Isaacs and Rich JJ (at 289-290) described the principle as follows:
'As to the second ground, namely, the maximum Generalia specialibus non derogant, the first requisite is to get a clear understanding of its meaning. In Barker v. Edger (1898) A.C., at p.754 it is said:- 'The general maxim is, Generalia specialibus non derogant. When the Legislature has given its attention to a separate subject, and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject matter and its own terms.' Now, the first thing we have to understand is what is the meaning of 'separate subject' and 'a subsequent general enactment.' In Blackpool Corporation v. Starr Estate Co. (1922) 1 A.C., at p.34 Viscount Haldane, as to that rule of construction, says:- 'It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to. An intention to deal with them may, of course, be manifested, but the presumption is that language which is in its character only general refers to subject matter appropriate to class as distinguished from individual treatment. Individual rights arising out of individual treatment are presumed not to have been intended to be interfered with unless the contrary is clearly manifest.' Viscount Cave, the present Lord Chancellor, quoted with approval (1922) 1 A.C., at p.38 the rule in Barker v. Edger (1898) A.C., at p.754. Lord Cave also, for himself, said: 'The rule is clear that a general statute will not, in the absence of clear words, be construed as derogating from special provisions in a previous statute.' The language in those two cases – and they are in accordance with previous authorities – shows that the subject matter in the earlier Act must be the same as that in the later Act before the maximum can have any possible application.
…'
The principle has recently been recognized by Deane J in Refrigerated Express Lines (A/Asia) Pty Ltd v. Australian Meat and Live-Stock Corporation (1980) 29 ALR 333 at 347 where he referred to the statement by Romilly MR in Pretty v. Solly (1859) 26 Beav 606 at 610 that:
'The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative ...'.
104 Where two procedures in an enactment are provided for, the maxim expressum facit cessare tacitum may also become relevant. This maxim when translated means where a particular procedure is designated to achieve something, other procedures are thereby excluded.
105 In Nystrom, Gummow and Hayne JJ explained that where there are two powers available in an enactment in a particular matter whether as the same power, the same subject matter or whether the general power encroaches on the subject matter exhaustively governed by the special power, it must be possible to say that the statute in question confers only one power to take the relevant action. Their Honours stated [54] - [55]:
Underlying Anthony Hordern and later cases is the notion 'that affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise'. This statement was made by Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia ((1956) 94 CLR 254 at 270. See also APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322 at 409 [241]) and applied to Ch III of the Constitution as a 'very evident example'. Counsel for the Minister, in oral argument, invoked the maxim expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded), and its affinity with the above statement will be apparent. But, whilst 'rules' or principles of construction may offer reassurance, they are no substitute for consideration of the whole of the particular text, the construction of which is disputed, and of its subject, scope and purpose.
Anthony Hordern ((1932) 47 CLR 1) concerned the Commonwealth Conciliation and Arbitration Act 1904 (Cth) (the Conciliation and Arbitration Act) which apparently contained two powers for the making of an award with respect to union preferences. Section 40 empowered the Court of Conciliation and Arbitration by award to give preferential employment to members of unions over other persons, subject to certain conditions, including that such an award was to be made only 'other things being equal'. The power in s 40 was not expressly confined to the situation where there was an industrial dispute about preference. However a judge of the Court, acting under the general powers in ss 24(2) and 38(a) to hear and determine industrial disputes, made an order unconditionally requiring certain employers to give preference to union members in employing female workers. This Court by majority (Gavan Duffy CJ and Dixon J, McTiernan J, Starke and Evatt JJ dissenting) held that those general powers did not authorise the judge to make an award which 'ignored the exception[s] ((1932) 47 CLR 1 at 8) contained in s 40. McTiernan J concluded as follows ((1932) 47 CLR 1 at 20):
"Reading the Act as a whole, there does not appear to me to be any reason for holding that Parliament intended to give to the Court two powers, entirely different in scope, to order 'preference'. I do not think that the Legislature intended that, in a case in which preference was in dispute, the Court should be free to make any award it deemed fit and that the award might be entirely unconditional, whereas, in a case in which preference was not in dispute, the Court should be fettered and its award moulded by the provisions of s 40."
This is a rather more compendious expression of what was said by Gavan Duffy CJ and Dixon J in the passage set out earlier in these reasons. As a matter of construction (and not as one of implied repeal) there was only one power which could be relied upon to make awards giving preferential employment to union members.
106 The history of the enactment of the jurisdiction of the Public Service Arbitrator and the Public Service Appeal Board are set out at length in the appellant's submissions. In relation to the conclusions drawn by the appellant in relation to that history, I do not agree that:
(a) the jurisdiction of the Public Service Arbitrator can be characterised as a more specific power than the jurisdiction of the Public Service Appeal Board;
(b) because of amendments made to the Act in 1987 and 2002 that s 80E can be considered a 'later enactment'; and
(c) s 80I(1)(a) is a redundant provision.
107 It is often contestable as which enactment is the special and which is the general: Bank Officials' Association (SA Branch) (297) (Higgins J). The jurisdiction of the Public Service Arbitrator by operation of s 80E(1) is substantially the same as the general jurisdiction of the Commission in respect of 'industrial matters'. Whilst the jurisdiction of the Public Service Arbitrator can only be considered a special power when compared to general jurisdiction of the Commission, in respect of an industrial matter, when regard is had to the scheme of the Act, the jurisdiction of the Public Service Arbitrator is special only when compared to the general jurisdiction. It is special in that it only applies to government officers.
108 The definition of 'industrial matter' in s 7 and extended in s 80E(2) covers a very wide variety of matters which are matters of an industrial nature: Hotcopper Australia Ltd v Saab (2002) 117 IR 256. On the other hand the jurisdiction of the Public Service Appeal Board is solely confined to special matters in s 80I of the Act. When the jurisdiction of the Public Service Appeal Board under s 80I is compared to the jurisdiction of the Public Service Arbitrator under s 80E it is clear that the power in s 80E can be said to be a general power and the power under s 80I a specific power. The Public Service Appeal Board has no general jurisdiction to deal with any matters other than appeals against specified decisions by an employing authority. Unlike s 80E, the jurisdiction of the Public Service Appeal Board conferred by s 80I can not be invoked to review any decision of an industrial nature of an employing authority. Section 80I(1)(a) is even more specific as it only applies to 'public service officers' and not to other categories of 'government officers' In addition, the Public Service Appeal Board only has power to hear and determine an appeal, and to adjust all matters referred to in s 80I(1)(a) to (e). In contrast the Public Service Arbitrator has broad power to conciliate and arbitrate, including the power to make interim orders under s 32 and s 44 of the Act.
109 There is a strong presumption that the legislature does not intend to contradict itself but intends both provisions to operate within their given sphere: Butler v Attorney-General (Vic) (1961) 106 CLR 268 (276) (Fullagar J); Saraswati v R (1991) 172 CLR 1 (17) (Gaudron J) and Dossett v TKJ Nominees Pty Ltd (2003) 218 CLR 1 (437)-(438) per Gummow, Hayne and Heydon JJ.
110 The amendments to s 44 of the Act in 1987 to extend the definition of 'industrial matter' and the amendments in 2002 can not have the effect at law of characterising s 80E as a later enactment, as s 80E was not amended by the enactment of these provisions. In any event even if s 80E could be regarded as a later enactment the maxim of generalia specialibus non derogant may still apply as both provisions are in the same enactment.
111 I also do not agree that s 80I(1)(a) is a redundant provision. It is important to note that both the Public Service Appeal Board and the Public Service Arbitrator were established as constituent authorities under the Act at the same time by the Acts Amendment and Repeal (Industrial Relations Act (No 2) – No 94 of 1984 by the enactment of Part IIA Constituent Authorities of the Act. Section 80I(1)(a) was amended by the Acts Amendment (Public Sector Management) Act 1994. The only change to s 80I(1)(a) was to change the reference to the Public Service Act 1978 to the PSM Act. With respect it does not follow that because the conditions of service in the Public Service Act 1904 were not replicated in the PSM Act that s 80I(1)(a) was redundant or retained on the basis of extreme caution. By the time s 80I(1)(a) was enacted in 1984, the majority of the conditions of service the appellant relies upon were not to be found in the Public Service Act 1978. The PSM Act is not an Act of Parliament that amended the Public Service Act 1904. It repealed that Act in its entirety and brought about a substantially new scheme of management of public sector employment, including management of public service officers. One of the most notable changes was that the position of Public Service Commissioner was abolished and public service officers who had been appointed by the Public Service Commissioner were deemed to be appointed and holding office under the PSM Act: Schedule 5 of the PSM Act. The effect of this legislative change is that public service officers were deemed to be employed by an 'employing authority' within the meaning of s 5 of the PSM Act. In addition a substantial part of the PSM Act only applies to public service officers. These are the provisions that form part of Part 3 of the Act in s 34 to s 67. The Public Service Appeal Board and the Public Service Arbitrator have no jurisdiction to deal with a decision of an employing authority in relation to a Chief Executive Officer. However, there are many conditions of service in Part 3 and Part 5 of the PSM Act that could be the subject of a decision in relation to the interpretation concerning conditions of service. For example, a decision made by an employing authority under s 43 to appoint a person to a SES post. If there is a debate about the meaning of a SES post in s 43 of the PSM Act, s 80I(1)(a) may be enlivened. A question of relevance in these proceedings is whether in those circumstances would the jurisdiction of the Public Service Arbitrator be ousted. Whether it would occur would, in my view, depend upon the facts of the particular matter.
112 When the scheme of the Act, in particular the establishment of the constituent authorities in the Act is examined it is apparent that the Public Service Appeal Board was established and continues to be constituted to deal with decisions of employing authorities that deal with specific matters that involve a single individual, that is a public service officer where an appeal is instituted under s 80I(1)(a) or a government officer under s 80I(1)(a) to (e) or perhaps a number of public service officers or government officers in respect of a decision of an employing authority through the operation of s 10 of the Interpretation Act 1984 which requires words in the singular to also include the plural. This is also reflected in s 80J as the appellant as an organisation registered under the Act to represent the interests of a large number of public service officers and government officers is unable to institute an appeal on its own behalf. It can only act as an agent in an appeal. Further s 80I(1) only applies when a relevant decision is made by an employing authority. Section 80E is not so confined and the power under s 80E can be invoked in many matters where the jurisdiction in s 80I(1) is not raised. For example, if there is a dispute about whether SES posts should be created in an organisation pursuant to s 43 of the PSM Act, the Public Service Arbitrator would have jurisdiction to deal with the matter as the circumstances of the dispute would give rise to an 'industrial matter'. However, no appeal could be instituted to the Public Service Appeal Board if no decision had been made by an employing authority or alternatively on the facts there was no dispute about the interpretation of s 43 or any other provision of the PSM Act or regulations made under the PSM Act so as to enliven the jurisdiction of the Public Service Appeal Board under s 80I(1)(a) of the Act.
113 Having considered the establishment of the constituent authorities of the Public Service Appeal Board and the Public Service Arbitrator under the Act, I agree the maxim of generalia specialibus non derogant does not apply as it can not be said that the provisions of s 80E impliedly repeals s 80I. Nor is there an irreconcilable conflict between the two provisions. In my view the two provisions can stand together. However it does not follow from this finding that the Public Service Arbitrator has jurisdiction to deal with matters in dispute between the parties in this matter.
114 I do not agree that it was intended that the two jurisdictions operate cumulatively. To find otherwise would have the effect that where the pre-conditions are raised for the filing of an appeal to the Public Service Appeal Board by an individual public service officer or other government officer, the same facts and issues could be raised in an application to the Public Service Arbitrator. Such a result could leave the Public Service Appeal Board little if any work to do under the provisions of the Act. Alternatively, applications raising the same matters could be brought in two forums as it would be possible for the appellant as an organisation to bring an application under s 80E(1) in relation to the same issue in respect of a particular public service officer or government officer that is the subject of an appeal by the public service officer or other government officer under s 80I(1) of the Act acting on his or her own behalf. This could lead to conflicting decisions being made in respect of the same decision of an employing authority. Such a result was in my view not intended as it is clear from the express terms of s 80I when considered together with the jurisdiction of the Public Service Arbitrator that the scheme of the Act in establishing two Constituent Authorities is such that a small number of matters which deal with specific decisions by employing authorities be reviewed only by the Public Service Appeal Board by way of an appeal and not by conciliation and arbitration by a Public Service Arbitrator.
115 In this matter as the jurisdiction of the Public Service Appeal Board is capable of being enlivened by the subject matter of the application before the Public Service Arbitrator, the jurisdiction of the Public Service Arbitrator is excluded.
116 For these reasons I would make an order that the appeal be dismissed.
KENNER C:
117 This is an appeal under s 49 of the Industrial Relations Act 1979 (“the Act”) from a decision of a Public Service Arbitrator (“the Arbitrator”) of 17 December 2009. The background to the matter is as follows.
The Background
118 The proceedings at first instance before the Arbitrator concerned a dispute between the applicant and the respondent as to whether disciplinary proceedings commenced by the respondent under s 81 of the Public Sector Management Act 1994 (“the PSM Act”) could continue after the employee concerned, Mr van der Zanden, ceased to be an employee. The relevant factual issues at first instance were set out in a Statement of Agreed Facts appearing at par 2 of the Arbitrator’s reason for decision as follows:
“1. The Applicant is the Civil Service Association of Western Australia Incorporated (“the CSA”).
2. The CSA is a registered organisation of employees authorised to represent Mr Luke van der Zanden.
3. The Respondent is the Director General, Department for Child Protection.
4. Mr van der Zanden was employed with the Respondent pursuant to Section 64(1)(b) of the Public Sector Management Act 1994 (“the Act”) as a Residential Care Officer.
5. The Respondent presented Mr van der Zanden with a suspected breach of discipline letter dated 20 April 2009 identifying three suspected breaches of discipline.
6. Mr van der Zanden responded to the three allegations in writing and provided his response to the Respondent on 8 May 2009.
7. Mr van der Zanden’s fixed term contract of employment expired as at 4 June 2009. As of the expiration of Mr van der Zanden’s fixed term contract Mr van der Zanden was no longer an employee of the Respondent.
8. On 11 June 2009 the Respondent sent Mr van der Zanden a letter notifying him that an investigation into the suspected breaches of discipline would be commenced pursuant to section 81(2) of the (sic) Act.
9. On 11 September 2009 the Applicant sent the Respondent a letter stating that as Mr van der Zanden was no longer an employee of the Respondent the Respondent had no ability to continue its investigation.
10. On 17 September 2009 the Respondent wrote to the Applicant and advised that the Respondent believed that it did have the ability to continue its investigation.
11. On 23 September 2009 the Applicant wrote to the Respondent requesting the disciplinary investigation be stayed until such time as the matter could be determined by the Public Service Arbitrator.
12. The Respondent acceded to this request.
13. The Applicant contends that the Respondent does not have the power under the Act to continue the breach of discipline process against Mr van der Zanden.
14. The Respondent contends that it does have the power under the Act to continue the breach of discipline process against Mr van der Zanden.”
119 In the proceedings at first instance, the respondent challenged the jurisdiction of the Arbitrator to hear the matter, on the ground that the claim was properly within the jurisdiction of the Public Service Appeal Board (“the Appeal Board”) under s 80I(1)(a) of the Act. It was contended that relying upon a decision of the Full Bench of the Commission in Ronald Thomas Bellamy v Chairman, Public Service Board (1986) 66 WAIG 1579, the specific jurisdiction of the Appeal Board overrode the general jurisdiction of the Arbitrator as to the subject matter of the dispute, applying the generalia specialibus principle of statutory interpretation.
120 The Arbitrator upheld the respondent’s submissions in relation to jurisdiction, and dismissed application at first instance. The Arbitrator concluded at par 39 of her reasons for decision that the jurisdiction of the Arbitrator was broad and whilst including the subject matter of the dispute before her, the narrow and specific nature of the Appeal Board’s jurisdiction meant that the latter jurisdiction prevailed.
Grounds of Appeal
121 The two grounds of appeal essentially go to the same issue, that being the jurisdiction of the Appeal Board under s 80I(1)(a) to entertain the applicant’s claim at first instance. It was contended that the Appeal Board’s jurisdiction did not extend to a public service officer who ceased to be an employee and the relevant “conditions of service” referred to in s 80I(1)(a) of the Act do not include disciplinary matters under the PSM Act. The grounds of appeal allege that the generalia specialibus principle of interpretation did not apply as the dispute at first instance did not fall within the Appeal Board’s jurisdiction. It was contended that the dispute fell fairly and squarely within the jurisdiction of the Arbitrator when read with the definition of “industrial matter” under s 7 of the Act.
Public Interest
122 It was also asserted in the notice of appeal, that the appeal lay to the Full Bench because the matter was of importance in the public interest for the purposes of s 49(2a) of the Act. However, it is clear that the order issued by the Arbitrator on 17 December 2009 finally determined the matter at first instance and thus was not an “finding” in respect of which s 49(2a) of the Act applies. It is not therefore necessary to deal with this matter.
The Issues
123 The questions to be addressed on this appeal appear to be as follows:
(a) whether the application at first instance was properly within the jurisdiction of the Appeal Board under s 80I (1)(a) of the Act;
(b) if so, whether the subject matter of the application was also within the jurisdiction of the Arbitrator under s 80E (1) of the Act; and
(c) if the answer to both (a) and (b) is yes, whether by the operation of the principle dealt with by the Full Bench in Bellamy, the jurisdiction of the Arbitrator was, as to that subject matter, ousted.
Scope of s 80I(1)(a) Act
124 Part IIA of the Act establishes the constituent authorities of the Commission which includes the Arbitrator, the Appeal Board and the Railways Classification Board. The jurisdiction of the Arbitrator and the Appeal Board is set out in Division 2. The Appeal Board is constituted under s 80H of the Act. The Appeal Board’s jurisdiction, in terms of the nature of the appeals that may be made to it, are set out in s 80I (1) which relevantly provides as follows:
“80I. Appeals
(1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine — 
(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;
(b) an appeal by a government officer, who is the holder of an office included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975, under section 78 of the Public Sector Management Act 1994 against a decision referred to in subsection (1)(b) of that section;
(c) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary not lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed;
(d) an appeal by a government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision referred to in subsection (1) (b) of that section;
(e) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed,
and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e).”
125 Appeals may be instituted to the Appeal Board either by the relevant officer or by an organisation on his or her behalf under s 80(J) of the Act. Whilst similar to the jurisdiction of the Arbitrator, certain parts of Part II Division 2 of the Act as they apply to the Commission apply to the exercise of the jurisdiction of the Appeal Board, but not all such powers. For example, unlike the Arbitrator, the Appeal Board has no conciliation powers.
126 An appeal under s 80(I)(1)(a) is open to any “public service officer”. By s 7 of the Act, a “public service officer” means a person so described within the meaning of PSM Act. By s 3 of the PSM Act, a “public service officer” “means executive officer, permanent officer or term officer employed in the Public Service under Part 3”. It was common ground that Mr van der Zanden was appointed under s 64(1) of the PSM Act and was therefore a public service officer during his employment. Whether the jurisdiction of the Appeal Board can be invoked after the service of a public service officer ceases is a matter I consider later in these reasons.
127 It was also not in issue at first instance that the respondent was an “employing authority” for the purposes of s 5 of the PSM Act.
128 I accept, without necessarily deciding the matter, for present purposes, that the subject matter of the dispute at first instance, that being the respondent’s continuation of disciplinary proceedings against Mr van den Zanden was a “decision” for the purposes of s 80I (1)(a) of the Act. That is, the respondent’s continuation of the disciplinary process against Mr van der Zanden over the objection of the applicant, involved a conclusion or determination by the respondent to continue to proceed with the relevant investigation.
Conditions of Service
129 A central issue arising on the appeal is whether the disciplinary process as set out in the PSM Act, can be regarded as “conditions of service” for the purposes of s 80I(1)(a) of the Act.
130 The appellant in detailed submissions contended that the subject matter of discipline against public service officers, could not, on a proper construction of the legislation, be so described. The appellant set out the history of the PSM Act and its predecessors, and submitted that under predecessor legislation to the PSM Act, conditions of service such as leave entitlements, deductions from salary, retirement arrangements, and other matters, were, but are no longer, contained in legislation but rather, in various industrial instruments applicable to government officers generally.
131 The submission seemed to be therefore, that as such conditions of service are no longer prescribed in the PSM Act, then s 80I(1)(a) of the Act, has little or no work to do under the current legislation.
132 Whilst the respondent did not take issue with the submissions of the appellant in relation to the history of the PSM Act, it questioned the relevance of this statutory history to the contentions advanced on the appeal.
133 The Minister, who was invited to and is thereby taken to have been granted leave to intervene under s 30(1) of the Act, submitted that the disciplinary provisions contained in Part 5 of the PSM Act, can reasonably and properly be considered as part of a government officer’s conditions of service, along with other conditions of service contained within the relevant industrial instruments and the officer’s contract of employment.
134 An allied submission in relation to this issue by the appellant was “conditions of service” can only be reasonably construed as applying to a serving public service officer, as no conditions of service can have application after termination of employment. It was therefore contended that Mr van der Zanden could not bring an appeal before the Appeal Board once his employment with the respondent had ceased.
135 For the following reasons, I do not accept the appellant’s submissions in relation to these issues.
136 In my view, there is no reason, on its ordinary and natural meaning, to give the phrase “conditions of service” a restricted meaning. In Australian Tramway Employees Association v Prahran and Malvern Tramway Trust (1913) 17 CLR 680 Isaacs and Rich JJ said at 693:
“the terms of employment are the stipulations agreed to or otherwise existing on both sides upon which the service is performed. The “conditions” of employment include all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.”
137 The width of expressions such as “terms and conditions of service”, “conditions of service” and the like, have been repeatedly recognised: The Queen v Booth; Ex Parte Administrative and Clerical Officers Association (1978) 141 CLR 257; The Queen v Findlay; Ex Parte Commonwealth Steamship Owners Association (1953) 90 CLR 621; Westwood v Lightly and Ors (1984) 7 IR 104.
138 Accordingly, taking the phrase in its context, which I do not consider should be limited by the reference to “salaries and allowances” in s 80I(1)(a) of the Act, I see no basis to construe the phrase “conditions of service” in a limited fashion. A disciplinary process, to which an employee is subject in the workplace, is plainly a “circumstance affecting the employment” or part of the “environment” of the employment of public service officers under the PSM Act.
139 I now consider the submission that the reference to “conditions of service” cannot have application to an appellant who was formerly, but is no longer, a public service officer.
140 Whilst each of the types of appeals to the Appeal Board set out in s 80I(1) of the Act, must be considered to be separate heads of jurisdiction of the Appeal Board, it is plain by s 80I(1)(c) and (e), that former government officers who have been dismissed, are able to appeal against such decisions. Hence, the Appeal Board’s jurisdiction extends to those persons whose employment as a government officer has ceased.
141 Whilst it may be, as the appellant’s submissions infer, that in the current legislation, s 80I(1) (a) of the Act has little work to do, there are other parts of the legislation, other than those presently under consideration, where it may operate. For example, without expressing a concluded view on the matter, Part 6 of the PSM Act deals with redeployment and redundancy of employees. By s 94 of the PSM Act, the Governor may make regulations under s 108 prescribing arrangements for redeployment, retraining and redundancy for employees who are surplus to the requirements of any department or organisation and other circumstances.
142 It is quite conceivable that a public service officer who is aggrieved by a decision of an employing authority in relation to the operation of Part 6 and the relevant regulations, as to the circumstances of their redundancy, could, despite the terms of s 95 of the PSM Act, institute an appeal under s 80I(1)(a). Furthermore, a matter may conceivably arise under the terms of Part 8 Miscellaneous of the PSM Act, concerning a decision by an employing authority as to the interpretation of provisions of this Part in relation to a former employee.
143 I do not therefore think that it would have been the intention of the Parliament to exclude from the jurisdiction of the Appeal Board under s 80I(1)(a), such former employees. There may well be proper and legitimate issues concerning decisions in relation to the interpretation of the PSM Act and regulations, which such employees may wish to contest before the Appeal Board. In my view, to read the jurisdiction of the Appeal Board down to confine it only to serving public service officers would be inconsistent with the construction of the section within the context of the PSM Act as a whole.
144 On the basis of the foregoing analysis, I therefore accept that the decision of the respondent, in applying the terms of s 81 of the PSM Act, that the disciplinary process commenced against Mr van der Zanden, continue after the cessation of his employment, was amenable to an appeal by him against that decision under s 80I(1)(a) of the Act and was therefore within the jurisdiction of the Appeal Board.
Jurisdiction of the Arbitrator
145 It seemed to have been accepted at first instance that the appellant’s application concerning Mr van der Zanden was within the jurisdiction of the Arbitrator. At pars 15-21 of her reasons for decision, the Arbitrator set out the relevant provisions of the Act in relation to the Arbitrator’s jurisdiction and concluded at par 22 that “Therefore the Arbitrator has very wide powers to deal with the industrial matter for the purpose of its resolution. In any event, it is the respondent’s contention that the Arbitrator would have jurisdiction but for it being ousted because the jurisdiction of the Board is more particular in this matter.”
146 The Arbitrator then went on to consider the jurisdiction of the Appeal Board, and found that it, being more particular, overrode the Arbitrator’s general jurisdiction in relation to the matter before her.
147 There does not appear to have been any detailed determination by the Arbitrator as to whether the application at first instance was within her jurisdiction, rather the focus from the reasons for decision, appears to have been on the nature of the Appeal Board’s jurisdiction to entertain the appellant’s claim.
148 Notwithstanding this, for the following reasons, briefly expressed, in my opinion the application at first instance fell within the jurisdiction of the Arbitrator.
149 As set out in the reasons for decision at first instance, the jurisdiction of the Arbitrator is prescribed under s 80E of the Act, which gives the Arbitrator “exclusive jurisdiction to inquire into and deal with any industrial matter relating to a government officer, a group of government officers or government officers generally.” Thus it is plain that the jurisdiction of the Arbitrator is dependant upon the matter before it being an “industrial matter” as defined in s 7 of the Act.
150 There were a number of submissions made by the parties on the appeal in relation to this issue. In short, the appellant contended that the subject matter of the proceedings at first instance dealing with the discipline of Mr van der Zanden continuing after the termination of his employment, fell within the definition of “industrial matter” as “including conditions which are to take effect after the termination of employment;” This does not appear to have been challenged by the respondent in any substantive way.
151 The Minister on the other hand, contended that the subject matter of the dispute at first instance, properly characterised, did not concern conditions taking effect after the termination of employment, but rather, conditions which took affect whilst Mr van der Zanden was an employee employed as a public service officer. As Mr van der Zanden’s employment had come to an end, at the time of the institution of the proceedings at first instance, there could no longer be an industrial matter in respect of which the Arbitrator could exercise jurisdiction. It was also submitted on behalf of the Minister that s 7(1a) of the Act, which extends the definition of industrial matter to include matters relating to the dismissal of an employee or a refusal or failure to allow an employee a benefit under a contract of employment, has no application to the present circumstances.
152 It was thus contended by the Minister, that the only jurisdiction available was that of the Appeal Board.
153 The meaning of “industrial matter” for the purposes of s 7 is very broad and should not be artificially read down or restrained. In par (i) of the definition of “industrial matter”, by amendments to the Act made in 2002, the definition was extended to provide “and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute…”
154 It is not necessary that there be an employment relationship on foot, as a necessary element of an “industrial matter” within the extended definition. As long as the subject matter of the particular dispute has some industrial character, it can be properly described as having an “industrial nature”: The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc.) (2004) 85 WAIG 629.
155 In my view, it is plain that a dispute about the application of disciplinary provisions to an existing and former employee of an employer is a matter that has an industrial character so as to bring it within the extended definition. Disciplinary provisions operate normally, on existing employment relationships and there have been many disputes before the Commission concerning such matters. Such matters do not loose their industrial character or flavour, simply because the particular dispute in issue concerns the application of disciplinary provisions after the employment relationship has come to an end.
156 In any event, it is reasonably clear, on authority in this jurisdiction, that a matter may remain an industrial matter, within the terms of the general definition in s 7 of the Act, after employment has come to an end: Totalisator Agency Board v Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch (1980) 60 WAIG 624.
Is the Jurisdiction of the Arbitrator Ousted?
157 The issue that then arises is whether, if the dispute at first instance falls within the jurisdiction of both the Arbitrator and the Appeal Board, the principles discussed and applied in Bellamy have application. Bellamy, the Full Bench held that the general jurisdiction of the Commission to enquire into and deal with an industrial matter under s 23 of the Act, concerning the dismissal of a government officer, was ousted by the specific jurisdiction of the Appeal Board to entertain appeals against the dismissal of government officers, applying the generalia specialibus principle.
158 For the purposes of the application of that principle, “repugnancy” does not necessarily involve a direct conflict between the relevant statutory provisions. As was said by Deane J in Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live Stock Corporation and Others (1980) 29 ALR 333 at 347:
“Repugnancy can be present in cases where there is no direct contradictions between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.”
159 There was a submission by the appellant that Bellamy is no longer good law as a consequence of amendments to the Act in 1987. These amendments included the insertion of s 44(6)(ba) and (bb) into the Act in relation to the Commission’s conciliation powers. Having considered these matters, I do not regard them as relevant to the continuation of the authority of Bellamy.
160 In this case, the principles dealt with Bellamy have, in my view, equal application to the exercise of the jurisdiction of the Arbitrator and the Appeal Board, as to the exercise of jurisdiction by the Arbitrator and that of the Commission under s 23 of the Act, which was specifically considered in Bellamy.
161 I dealt with this issue in a somewhat different context, in The Civil Service Association of Western Australia Incorporated v Chief Executive Officer Disability Services Commission (2005) 85 WAIG 3082. In that case the issue was whether the Arbitrator had jurisdiction to make an interim reinstatement order, pending the hearing and determination of an appeal from such a dismissal to the Appeal Board. I concluded that the jurisdiction of the Arbitrator was excluded and I said as follows at pars 14-19 :
“Therefore, the legislature in this State, has prescribed a specific jurisdiction under the Act for government officers, and within that jurisdiction, has also distinguished between appeals under s 80I to the Appeal Board, and the general jurisdiction of an Arbitrator under s 80E of the Act. The Arbitrator's “exclusive jurisdiction”, must in my opinion, be read under the Act, as subject to the jurisdiction and powers of the Appeal Board in s 80I, otherwise the whole of the Appeal Board's jurisdiction and powers would be otiose.
In Pearce and Geddes, the learned authors, in relation to the generalia specialibus non derogant principle observed as follows:
“[4.30] The principle that provisions of general application give way to specific provision when in conflict is discussed fully in [7.18]-[7.21] relating to repealing Acts. But the approach is also applicable to the resolution of internal conflicts between sections within an Act: Perpetual Executors and Trustees Assoc of Australia Ltd v FCT (1948) 77 CLR 1 at 29. An Act may well contain provisions of a general nature and also provision relating to a particular subject matter. It is commonsense that the drafter will have intended the general provisions to give way should they be applicable to the same subject matter as is dealt with specifically: Refrigerated Express Lines (A’ Asia) Pty Ltd v. Australian Meat and Live-stock Corp (1980) 29 ALR 333 at 347. A particular example of the approach in question was demonstrated in Commercial Radio Coffs Harbour Ltd v Fuller (1986) 66 ALR 217. Gibbs CJ and Brennan J at 219 ruled that a general provision making non-compliance with a provision of the Act an offence had to be read down if another law prohibited the activity that the Act required. See also Smith v R (1994) 125 ALR 385 at 391.”
In dealing with the application of the principle within a particular Act, the learned authors further said at par 4.30:
“The generalia specialibus rule should, it is suggested, be observed more strictly in the interpretation of provisions in a particular Act that in the case of the separate enactments. In the latter circumstance, it may well be that the drafter did not consider the effect of the competing Acts. When a single document is being considered, however, the drafter will be more likely to have relied on the rule. White v Mason [1958] VR 79 affords a good example of this. ‘Licensed premises’ were expressly excluded from the operation of a part of the Health Act 1956 that required the registration of premises selling food. Without such exclusion the part would normally have been taken to have applied to those premises. The Act also contained general catch-all provisions. Herring CJ considered that the express exclusion of licensed premises from the part of the Act that would otherwise specifically have applied to them indicated an intention that they should also be excluded from the general provisions of the Act.”
It was this principle of statutory interpretation that the Full Bench relied upon in Bellamy.
It is clear from the plain language of the relevant provisions of the Act, that the Appeal Board's jurisdiction is relatively narrow and specific to deal with appeals brought in respect of the matters set out in s 80I(1)(a) to (e) and it has the power is to “adjust all such matters”. By contrast, the jurisdiction and powers of an Arbitrator under s 80E of the Act, are general and broad, and in my view, the remedies available under both s 80E(5) and under s 80I(1) are different. There may be some scope for conflict if there was to be concurrent jurisdiction.
In my opinion, taking the legislation as a whole, applying the principle of interpretation referred to above, the draftsperson of Division 2 of Part IIA of the Act, did not intend there to be concurrent jurisdiction exercised by both the Arbitrator and the Appeal Board in relation to remedies for the dismissal of government officers. Government officers who are dismissed in the circumstances set out in s 80I(1) only have available to them the jurisdiction of the Appeal Board in respect of an appeal commenced under s 80I of the Act.”
162 Having considered the submissions of the parties on the present appeal, there has been no basis put to cause me to depart from the views I expressed in Disability Services Commission. The principles applied in that case have equal application to the present circumstances in my opinion. Part IIA Division 2 of the Act makes special provision in s 80I for appeals against certain decisions of employing authorities under the PSM Act. One of those types of decisions is that which is the subject of this appeal and s 80I(1)(a) provides for such appeals in specific terms. Those specific terms are an indication that the Parliament intended that the Appeal Board’s jurisdiction be invoked in such cases, and not the general jurisdiction of the Arbitrator under s 80E(1) of the Act.
163 By s 80I(1) of the Act, the Appeal Board has the power to “adjust” all such matters as are referred to it in pars (a), (b), (c), (d) and (e). The power of the Appeal Board to “adjust” a decision is referable to the particular jurisdiction to the Appeal Board that is invoked. “Adjust” in context, includes the power to reform the particular decision under appeal in some way: Johnson v State Government Insurance Commission (1997) 77 WAIG 2619 per Anderson J. An obvious means of reforming the decision taken by the respondent at first instance would be to reverse it, to discontinue the disciplinary investigation into Mr van der Zanden. The scope of powers of the Appeal Board are not limited to a declaration following the interpretation of the relevant provisions of the PSM Act or regulations, as is the case under s 46 of the Act, involving the Commission’s powers to interpret awards and industrial agreements.
Conclusion
164 For the foregoing reasons, in my view, the Appeal Board’s jurisdiction ousted the jurisdiction of the Arbitrator in the circumstances of this case. I would therefore dismiss the appeal.
MAYMAN C:
165 I have had the benefit of reading the reasons for decision of her Honour, the Acting President. I agree with those reasons and have nothing further to add.