2011 WAIRC 00955
APPEAL AGAINST THE DECISION MADE ON 23 AUGUST 2010 RELATING TO NON IMPLEMENTATION OF RE CLASSIFICATION AS DETERMINED

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2011 WAIRC 00955

CORAM
: PUBLIC SERVICE APPEAL BOARD
THE HONOURABLE J H SMITH, ACTING PRESIDENT - CHAIRMAN
MR B DODDS - BOARD MEMBER
MR K CHINNERY - BOARD MEMBER

HEARD
:
MONDAY, 23 MAY 2011, TUESDAY, 24 MAY 2011, WEDNESDAY, 25 MAY 2011, TUESDAY, 28 JUNE 2011

DELIVERED : TUESDAY, 11 OCTOBER 2011

FILE NO. : PSAB 18 OF 2010

BETWEEN
:
GLENN ROSS
Appellant

AND

MR PETER CONRAN, DIRECTOR GENERAL
DEPT OF THE PREMIER AND CABINET
Respondent

CatchWords : Industrial Law (WA) - Public Service Appeal Board - Appeal against a 'decision' not to vary the classification of the appellant - Did the notification of the outcome of a review of the appellant's classification by the Public Sector Commissioner constitute a 'decision' by the respondent - Did the respondent have the power to vary the classification of the appellant pursuant to s 29(1)(h) of the Public Sector Management Act 1994 (WA) - Pre-conditions for the exercise of power under s 29(1)(h) discussed - No power under s 29(1)(h) to classify an officer independently of classifying the officer's office, post or position - Approved Procedure 1, Approved Procedure 2 and the Re-Employment of Public Service Officers Employed in Statutory Offices Policy considered - In the circumstances respondent had no power to classify or re-classify the appellant - Rule against bias considered - Duty to act fairly considered.
Legislation : Industrial Relations Act 1979 (WA) s 44, s 80E, s 80E(2)(a), s 80I(1), s 80I(1)(a), s 80J;
Public Sector Management Act 1994 (WA) s 3(1), s 5, s 5(1), s 7, s 10, s 10(1)(a), s 10(2), s 29(1), s 29(1)(h), s 29(1)(h)(ii), pt 3, s 36, s 36(1), s 36(1)(c), s 64(3), s 75;
Corruption and Crime Commission Act 2003 (WA) s 179, s 180, s 180(3);
Public Sector Management (Redeployment and Redundancy) Regulations 1994 (WA)
Public Sector Reform Act 2010 (WA) pt 2 div 1;
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1);
Industrial Relations Commission Regulations 2005 (WA) reg 107(2);
Freedom of Information Act 1992 (WA).
Result : Appeal dismissed
REPRESENTATION:

Counsel:
APPELLANT : MS P J GILES (OF COUNSEL)
RESPONDENT : MR R J ANDRETICH (OF COUNSEL)
Solicitors:
APPELLANT : DONNA PERCY & CO
RESPONDENT : STATE SOLICITOR’S OFFICE

Case(s) referred to in reasons:
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Civil Service Association of Western Australia (Inc) v Commissioner Corruption and Crime Commission [2008] WAIRC 00181; (2008) 88 WAIG 265 and [2008] WAIRC 00339; (2008) 88 WAIG 662
Director General of Health v Health Services Union of Western Australia (Union of Workers) [2011] WAIRC 00332
Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337
Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438
Kioa v West (1985) 159 CLR 550
O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356
Yougarla v Western Australia (1998) 146 FLR 128

Case(s) also cited:
C Inc v Australian Crime Commission [2010] FCAFC 4 (29 January 2010).
Civil Service Association of Western Australia (Inc) v Commissioner Corruption and Crime Commission [2008] WAIRC 01511; (2008) 89 WAIG 3
Haneef v Minister for Immigration and Citizenship [2007] FCA 1273
Jahnke v Minister for Immigration and Multicultural Affairs [2001] FCA 897; (2001) 113 FCR 268
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
The Civil Service Association of Western Australia Incorporated v Commissioner Department of Corrective Services [2010] WAIRC 01243; (2010) 91 WAIG 83

Reasons for Decision
SMITH AP:
The Appeal
1 On 23 August 2010, the appellant filed a notice of appeal to the Public Service Appeal Board (the Board) against what he says was a ‘decision’ by the respondent capable of review under s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (the Act) as the decision raises an interpretation by the respondent of s 29(1)(h) of the Public Sector Management Act 1994 (WA) (the PSM Act).
2 At the time the appellant was engaged by the respondent in early 2007 he was in dispute about his permanent level of classification as a public service officer. The appellant sought to be classified at level 9 upon his reappointment to the public service in 2007. The appellant was first appointed as a public service officer in Western Australia in 1997 at level 7. He had been returned to the public service at level 7 following a period of work at the Corruption and Crime Commission (the CCC) during 2004 to 2006 working at Class 1 for a period of two and a half months and at level 9 for approximately one year and nine months.
3 In 2009, the respondent agreed to facilitate a review of the appellant’s classification. The review was undertaken by the Public Sector Commissioner in 2010 who after considering a report by a review panel did not endorse the appellant’s request to be classified as a permanent level 9 officer. On 23 August 2010, the respondent informed the appellant that the Public Sector Commissioner had not endorsed the request for reclassification and that the respondent supported the Public Sector Commissioner’s view.
Background
4 The appellant has an academic background in several fields, particularly criminology. He holds the following tertiary qualifications:
(a) Bachelor of Business (Accounting), 1987
(b) Bachelor of Arts (Criminal Justice Administration), 1992
(c) Master of Social Work, 1995
(d) Master of Social Science (Criminology), 1998
(e) Graduate Certificate in Public Sector Management, 2001
(f) Master of Correctional Management, 2001.
5 From 1982 to 1993, the appellant worked for the Department of Justice in Victoria, in administration management, offender development and served a term as a Governor of a prison. From 1993 to 1997, the appellant worked for Australasian Correctional Management in New South Wales as an Offender Development Manager and in Victoria as an Operations Manager at correctional centres. He commenced employment with the Western Australian Public Service on 15 December 1997 in the Department of Justice as a Manager, Forensic Case Management Team. His substantive position was at level 7 at the highest increment, level 7.3, in recognition of his skills and previous experience. The appellant was employed by the Department of Justice until 2002. During that period he acted for periods of time in a level 8 positions as Superintendent of Bandyup and Nyandi Prisons and a Manager of Prisoner Health Services.
6 In August 2002, the appellant was seconded to the Kennedy Royal Commission as the Manager of the Research, Policy and Reform Unit and paid as a level 8 on the highest increment level. He worked in this position until February 2004 when the Kennedy Royal Commission completed its work. He then accepted another secondment which was to the CCC to assist in the establishment of the CCC. From 2 February 2004 to 16 May 2004, the appellant acted as a Class 1 as the Director of Corruption Prevention, Education and Research (exhibit D, annexure KA 07). During this period he applied for the advertised position of Manager, Corruption Prevention, Education and Research which was a level 9 position. He acted in this position from the time he ceased to act in the Class 1 position to when he was formally appointed to the position on 8 October 2004. Pursuant to s 179 of the Corruption and Crime Commission Act 2003 (WA) (the CCC Act) the appointment of the appellant to the level 9 position was for a term of five years from 8 October 2004 to 7 October 2009.
7 By a letter dated 16 January 2006, the CCC informed the appellant that the position he occupied had been reclassified from a level 9 to a level 8. The appellant was also advised that his salary would be maintained as a level 9: Civil Service Association of Western Australia (Inc) v Commissioner Corruption and Crime Commission [2008] WAIRC 00181; (2008) 88 WAIG 265 [2], [13] and [14] (PSACR 27 of 2006). The appellant disputed the unilateral reclassification of his position from level 9 to level 8. The appellant experienced a workplace illness of clinical depression and anxiety and he was off work for periods of absence on workers’ compensation. A consequence of the dispute was that he became surplus to CCC requirements.
8 When the appellant’s contract of employment with the CCC ended on 1 September 2006 he became entitled pursuant to s 180(3) of the CCC Act to be appointed to an office under pt 3 of the PSM Act of at least the equivalent level of classification as the office the appellant occupied immediately prior to his appointment under s 179 of the CCC Act, which was at level 7. The appellant was the first public service officer to be returned to the public service under s 180(3) of the CCC Act. A dispute arose as to the classification that he should be returned at. There was also an issue as to what agency he should be returned to.
9 On 14 February 2007, the appellant was offered a position in the Department of Premier and Cabinet (DPC). The position was unattached and did not carry with it any specific duties or requirements set out in a job description form (JDF). The offer of employment provided that:
(a) the appellant’s employment with the DPC would commence on 16 February 2007;
(b) he would be appointed permanently to a level 7 classification; and
(c) his rate of salary would be level 7, 3rd year.
The offer also stated that his duties would be as directed by DPC and that DPC would seek to place him in a permanent position internally in the first instance and in the event that this was not possible a placement would be pursued in accordance with the Public Sector Management (Redeployment and Redundancy) Regulations 1994 (WA). The appellant accepted the offer under protest on 22 February 2007. The appellant says he did so under duress because he had no choice. It is common ground that if he had not accepted the offer his career in the public service would have come to an end.
10 On 27 February 2007, Mr Dan Volaric of the Public Sector Management Unit of DPC referred the appellant to a position at the Department of Education and Training as a Principal Investigator. The appellant questioned the process to be followed and informed Mr Volaric that his health was not robust at that time as he had had a recurrence of previous symptoms and his psychiatrist had advised that he would not return to full health until sometime after all the outstanding matters are concluded and he had certainty about his employment circumstances. The appellant at that time sought to be placed in a suitable internal DPC position.
11 On 6 March 2007, the appellant questioned why he had not been considered for a position within DPC as Principal Policy Officer in the Office of State Security and Emergency Coordination which had been recently advertised. That position was a level 7. The appellant did not receive a response until 13 August 2007 when he was informed by the then Manager of Human Resource Services, Ms Elizabeth Delany, in a letter dated 13 August 2007, that Mr Geoff Hay, Assistant Director General of the Office of State Security and Emergency Coordination, had given his inquiry regarding possible employment opportunities serious consideration and was of the opinion that his areas of experience were of limited direct relevance to the office at that time.
12 The appellant attended for work at DPC and was provided with an office but was not provided with any work to do. He was then offered redeployment to positions in the Office of the Government and the Office of Multicultural Interests. He said, however, that there was no real position available for him at either agency.
13 In May 2007, DPC entered into negotiations for the appellant to be seconded to Edith Cowan University (ECU) as an Adjunct Associate Professor in the School of Law and Justice. That position came about as the appellant had since October 2006 been carrying out unpaid work for the university.
14 Sometime after the appellant went on secondment to ECU, the Public Sector Unit of DPC split from the DPC and became part of the Public Sector Commission and Mr Volaric moved to the new agency.
15 Prior to the appellant being offered a position with DPC, the Civil Service Association of Western Australian (Inc) (the CSA) made an application under s 44 of the Act for a matter to be referred for hearing and determination under s 44 in relation to a number of issues arising from the appellant’s dispute with the CCC in PSACR 27 of 2006. In proceedings before the Commission, Mr Volaric gave evidence on 4 July 2007 about the redeployment of the appellant.
16 On 20 March 2008, Commissioner Scott issued her first reasons for decision in PSACR 27 of 2006. At [64] of the reasons for decision she held that:
Section 180(3) of the CCC Act provides that Mr Ross is entitled to be appointed to a position under Part 3 of the PSM Act of at least equivalent level to that of the position Mr Ross occupied prior to his employment with the CCC. In this case, that means no less than Level 7.3. Whether it ought to be a higher level than that is a matter for consideration of a range of issues. Although those issues have not been canvassed before me, it would be reasonable to assume that they should include an objective assessment of:
1. The availability of positions at the equivalent level and above;
2. The nature of those positions;
3. The experience, skills and qualifications required for those positions and the experience, skills and qualifications of the officer concerned.
17 Of significant importance in this matter is that Commissioner Scott made no orders about whether the classification of the appellant on his return to the public service in 2007 should be reviewed.
18 Commissioner Scott in PSACR 27 of 2006 later issued supplementary reasons for decision on 4 June 2008, about the matters to be considered when a public service officer is returned to the public service after being employed by the CCC: [2008] WAIRC 00339; (2008) 88 WAIG 662. In those reasons she made the following points about the general principles that should be applied to s 180(3) of the CCC Act [17], [18] and [23]:
[17] As to the applicant’s proposed criteria of principles of equity, whether the officer went to the CCC on promotion or was subsequently promoted and whether the return to the public service was at the initiative of the employee or the CCC, these are not matters which relate to the objective assessment and matching of the available positions with the officer’s experience, skills and qualifications. The officer is guaranteed that his or her level upon leaving the public service will be maintained. If he or she has developed particular skills or gained qualifications which relate only to work for the CCC, or relate to positions in the public service where there are no vacancies, then to appoint the officer to a position at a level commensurate with his or her level gained in employment at the CCC would be to compromise the proper appointment and classification systems in the public service.
[18] However, if the officer has, during his or her time with the CCC gained experience and skills relevant to an available position in the public service, which is at a higher level than the position he or she held before the CCC position, then that CCC experience and skills would be relevant and ought to be recognised.
[23] Accordingly, taking account of the submissions made by the parties in response to the invitation to make additional submissions, I am not able to further develop objective tests which would apply as matters of principle. There will always be individual circumstances which require particular consideration. However for the purposes of a declaration as to general principles to apply, those issues set out within [64] to [67] of the Reasons for Decision of 20 March 2008 shall apply. Accordingly a declaration shall issue to the effect that:
The principles the Minister ought to consider when exercising discretion under s 180(3) of the CCC Act are:
a. the availability of positions within the public service at the equivalent level of classification and above as the officer occupied immediately prior to appointment under s 179 of the Corruption and Crime Commission Act 2003 (WA);
b. the nature of those positions;
c. the experience, skills and qualifications required of those positions and the experience, skills and qualifications of the officer concerned.
19 On 28 November 2008, Mr Peter Francis Conran was appointed as the Director General of DPC. He became the appellant’s employing authority under the provisions of the PSM Act.
20 In April 2009, the appellant exchanged a number of emails with Mr Gregory John Moore, the Assistant Director General, State Administration and Corporate Support in DPC. The emails were in part about the appellant’s grievance about being classified at level 7.
The appellant’s evidence about the assessment of his classification in 2010
21 On 6 May 2009, the appellant met with Mr Conran and Mr Moore. The appellant requested the meeting as his intention was to find out what was happening about an assessment being made of his classification as a result of the decisions made by Commissioner Scott in 2008. The meeting was convivial. The appellant and Mr Conran discussed a common acquaintance, Mick Palmer, who had been the Commissioner of Police in the Northern Territory. The appellant knew Mr Palmer as a result of being involved in an inquiry that Mr Palmer undertook into a matter involving a person known as Cornelia Rau.
22 The appellant gave evidence that Mr Conran told him at the meeting that if he wanted a level 8 classification it was no great difficulty to achieve that and he would simply create a level 8 position and put him in it. The appellant told Mr Conran that he believed he should be classified at level 9. Mr Conran then told him that that was more difficult and required some form of assessment to take place. The appellant, at that point in time, was happy to be assessed as he was confident of his experience and skills. He was then told the process that would be applied would be the policy that applied to a ‘RECAP’ process which is a reclassification process that applies to public service officers returning to the public service from ministerial offices. The appellant had no knowledge of such a process but the process was explained to him.
23 At this meeting the appellant also had a discussion with Mr Conran about his work at ECU. The appellant explained to Mr Conran that he had been developing and delivering course material relating to policing, corrections and child protection. Mr Conran expressed a view that he would explore whether a position could be created at ECU that DPC could pay for at level 9 whereby state government agencies could be provided with research through the appellant’s masters students, or PhD students, or request grant funding to the university for research. The appellant thought this was a very good suggestion. After the meeting finished the appellant returned to ECU, collected some course materials that he had been developing and delivering, including a graduate certificate in child protection that he had developed and was about to commence to run. He returned to DPC and delivered those documents to the receptionist for Mr Conran to review. Mr Moore later informed the appellant that Mr Conran had spoken to the Commissioner of Police about the proposal, but he was not aware of what the outcome of that discussion was.
24 On 16 July 2009, Mr Conran wrote to the appellant. He informed him that the Public Sector Commissioner had now released via Circular 2009-35 a policy framework for the ReEmployment of Public Service Officers Employed in Statutory Offices (the Statutory Officers Policy) which he believed would assist to address the appellant’s classification assessment and provided the appellant with a copy of the Statutory Officers Policy and said (exhibit 1 – GJR 35):
I have requested that the Department carry out a formal assessment along the lines envisaged in the framework and although parts of the framework do not necessarily apply as a good fit to you, I believe it provides the process and structure to address your circumstances to assess your rightful classification having regard for all of your circumstances.
25 The appellant was not, however, given an explanation as to what part of the Statutory Officers Policy fitted well and what parts did not and how this would be overcome.
26 On 8 September 2009, the appellant emailed Ms Kathryn Andrews, the A/Manager of Human Resources at DPC, and asked her what parts of the Statutory Officers Policy would be applied and what parts would not be. He also asked for the process to be set out in detail so that it was clear and settled before the classification process commenced. Ms Andrews responded by email on 11 September 2009. In her email she informed the appellant that the DPC would provide the advice that the CCC would otherwise have been required to provide under the Statutory Officers Policy. She also said that the appellant was to complete the application as per cl 4.2 of the Statutory Officers Policy and provide the following:
(a) his resume;
(b) JDF whilst at CCC (if he had it);
(c) work value information as stated; and
(d) a summary and nature of alternative public service positions that he considered to be appropriate having regard to his skills, experience and qualifications.
27 Ms Andrews also told the appellant that she would seek a duly authorised employment record statement from the CCC and once he was happy with the application they would meet with the officers from the Public Sector Commission to deal with the next steps as outlined in the Statutory Officers Policy.
28 The appellant said when giving evidence that he found Ms Andrews’ advice problematic, as the Statutory Officers Policy gave no advice as to what the assessment panel was to do or how they were to do it. He later received another email from Ms Andrews on 15 September 2009 in which Ms Andrews said that he should address ‘work value’ items listed in cl 4.2(c) of the Statutory Officers Policy such as policy, legislation, etc, in his submissions. She also informed the appellant that he could add anything he wished in terms of work value of the duties of the position he had at the CCC.
29 On 10 November 2009, the appellant sent his classification assessment submission to Ms Andrews by email. He informed her that he had been unable to attach JDF documents and asked her for a copy of any that she was able to obtain and advised her that he may need to make additional submissions in light of those documents and said that he was keen to have the opportunity to address the assessment panel. In a letter attached to his submission addressed to Mr Conran the appellant stated that he was still unclear whether it was his former positions that were being evaluated or whether the assessment was of his particular skills, knowledge and experience (exhibit 1 – GJR39).
30 On 30 November 2009, the appellant sent Ms Andrews an email asking whether the information that he had provided in the classification assessment submission was sufficiently detailed or would greater depth and explanation be of assistance. He also sent an email to Ms Andrews on 30 November 2009, asking whether his request to make an oral presentation had been agreed to, and if there was an intention to contact his nominated referees. He also asked who was going to sit on the panel.
31 On 30 November 2009, Ms Andrews replied to the appellant by email and informed him that she was waiting for some JDFs from the CCC and would then forward his submission to the Public Sector Commission. She told him that according to the Statutory Officers Policy the panel would have a representative from DPC which would most likely be herself and she was awaiting Public Sector Commission advice on the composition of the panel. She also told him in the email that she would refer to his request to make an oral presentation and to contact her if they intended to consult with referees.
32 On 1 December 2009, the appellant sent an email to Ms Andrews stating that he would like it recorded that he had previously expressed that he had an apprehension of bias by persons formerly employed within the Public Management Division of DPC who were now employed with the Public Sector Commission who have previously had involvement in his classification. Although the officers were not mentioned in the email, the appellant was particularly concerned that Dan Volaric and another officer, Mike McLaughlin, would be biased against him in any assessment of his classification. He was wary of the involvement of Mr McLaughlin as not only had Mr McLaughlin given evidence in the proceedings before Commissioner Scott in PSACR 27 of 2006, he was the author of the Statutory Officers Policy. He was also concerned that there was an apprehension of bias by Mr McLaughlin and Mr Volaric not on grounds that they had been involved in assessing him previously rather that they had been involved in giving evidence before Commissioner Scott.
33 On 2 December 2009, Ms Andrews sent an email to the appellant in which she informed him that she was waiting on some information from the CCC, but she had drafted a memorandum from Mr Conran to the Public Sector Commissioner to refer his submission and supporting his request for a classification review. She also informed him that the draft memorandum had included a request to have the officers involved in previous assessments not involved in this assessment and that he be given an opportunity to present his claims to the assessment panel. She, however, advised the appellant that the decision on these matters would be for the Public Sector Commissioner.
34 The appellant was concerned about Ms Andrews referring to the process of a ‘reclassification’ review as he was of the view that he was without classification and hence could not be reclassified and what was required was a classification ‘de novo’.
35 On 9 December 2009, the appellant received a further email from Ms Andrews asking him to confirm that he was seeking reclassification to a level 9 as this was not stated in his letter. On the same day the appellant sent an email to Ms Andrews stating that he requested classification at level 9, or greater, if the assessment establishes that is what he equated to.
36 On 11 December 2009, Mr Conran sent a letter to the Public Sector Commissioner requesting that the appellant’s classification be reviewed in accordance with the Statutory Officers Policy. The appellant again was concerned with the terms used in this letter because it was stated that he was seeking to have his classification reviewed when he was seeking to be given a classification through a de novo assessment. He was also concerned that the letter wrongly stated that the termination of his employment by the CCC was effective from 15 February 2007, when the notice of termination was 1 September 2006 with voluntary payments being made after that time until such time as the DPC took over the arrangement.
37 On 22 December 2009, the appellant was asked to identify some positions that he believed he would be suitable for. He responded to that request by email to Ms Andrews on 23 December 2009 and stated:
In respect of positions that I am suitable for. It is my understanding that positions at Level 9, Class 1 and above employed in SES organisations within the public service have an expectation of interagency mobility – hence the use of generic selection criteria. I would therefore expect that I too would be capable of filling positions at these levels in any number of Departments. Having said this, my strengths would obviously see me best utilised in organisations that have a law enforcement, judicial or quasi-judicial function, inquiry or review focus, security, or strong regulatory role. This would include Police, Corrective Services, Ombudsman, Child Protection, Office of State Security and Emergency Coordination, any commissions of inquiry, Auditor General, Attorney General, etc.
38 Ms Andrews advised the appellant that unless he knew of some suitable positions he should go to the Jobs Board at www.jobs.wa.gov.au and look at closed jobs in the agencies he had mentioned at level 9 and find three positions that he believed would be appropriate for his skills, experience and qualifications. She also informed him if he wanted to include jobs above level 9 he could do so.
39 The appellant looked at advertised positions that were current and selected four vacant prison superintendent positions. He also selected a position at the Department of Regional Development and Lands as the Director Corporate Services. He forwarded this information to Ms Andrews by email on 27 December 2009 and said that it was his view that his classification did not derive from the Statutory Officers Policy but from the order of Commissioner Scott and there was no requirement to compare his former positions with any other positions in the public service but that the requirement was to assess his skills, experience and qualifications. On 29 December 2009, Ms Andrews replied to the appellant and informed him that she would pass the information on to the Public Sector Commission and stated that the Statutory Officers Policy was being used as a guide at this stage.
40 On 30 December 2009, Ms Andrews passed the information provided by the appellant about suitable positions to Mr Volaric. Shortly before that time the appellant received a letter from the Public Sector Commission in which the contact person named was Mr Volaric. This was of concern to the appellant. In an email to Ms Andrews on 23 December 2009 he again raised his concern that he had an apprehension of bias in respect of Mr Volaric and stated that Mr Volaric should not be involved in the current assessment however peripheral.
41 On 25 February 2010, the appellant met with the assessment panel. The appellant gave evidence that when he met with the panel they advised him that this was the first occasion that they had met together, that they had not read his application so they knew nothing about it, and hence they had no questions of him. He found this disconcerting. Despite this, he endeavoured to make use of the opportunity and gave them his views about what was required by the decision given by Commissioner Scott to assess his skills, experience and qualifications. Ms Andrews made a comment that the assessment of qualifications did not necessarily mean the assessment of tertiary qualifications. When he queried if that was the case what did it mean, they said they did not know. The appellant made a file note of the meeting with the panel. In his file note he recorded what he says he discussed with the panel:
The public sector arbitrator had found that s. 180 of the CCC Act enabled that an officer returning to the public service could be returned at a level higher than that which they had previously held in the public service.
A simple translation at the level held in the CCC was not desirable as it was possible that after appointment to the CCC an employee could gain a promotion based on skills developed and experience and qualifications gained that were not relevant to the public service.
An example was given of a person selected to be a monitor at the CCC based on the skills they held in the public service but who subsequently gained promotion at the CCC performing duties associated with physical surveillance or the deployment of covert electronic surveillance equipment. Given that these latter skills and experience would be unable to be put to good use upon a return to the public service, that person would be returned at their previously held level in the public service.
Given that such cases could occur, the PSA determined that each returning officer should undergo an assessment of their skills, experience and qualifications to ensure that any skills, experience or qualifications gained that merited promotion at the CCC were relevant to public service positions.
When this context was applied to my circumstances, I advised that to assess my classification at less than level 9 would require it to be established that I did not have the skills, experience and qualifications to fulfil a level 9 position in the public service.
I advised that I was selected for appointment to the CCC based on the skills, experience and qualifications that I had displayed in the public service and had brought with me to the position at the CCC.
I did not receive any subsequent promotion within the CCC, hence it could not be argued that I gained any skills, experience or qualifications that were not relevant to the public service. This is particularly so given the increase in the attention being paid by agencies to issues of professional standards, integrity and ethics, etc.
I also advised that the classification review process differed from an appointment process in that, whereas the appointment assessment is designed to identify if an applicant has the desired SE&Q to fulfil the duties of the advertised position, There has been no suggestion that I did not fully perform all of the required duties satisfactorily at the CCC and subsequently. I reminded the panel that since February 2004 I had been performing duties at level 9 or better - Class 1 and Associate Professor.
This, I suggested, created somewhat of a reverse onus such that in reviewing my classification at level 9 there was prima facie evidence that I was suitable for continuation at that level or beyond, and it would be necessary to advance evidence to the contrary to disturb that position. This I thought would be difficult to do when consideration was given to my skills, experience and qualifications.
I next discussed the basis for the classification review - skills, experience and qualifications. It was discussed whether these were the criteria on·which the assessment should be made. I advised that these were the criteria that had been nominated by the PSA and which featured in the Policy document. I also posed the proposition that if these criteria didn't apply then what did? There was no cogent response provided.
I advised of my belief that I had superior tertiary qualifications to most and that I should be rated highly in this regard. It was suggested that 'qualifications' might refer to something other than formal qualifications but it was not explained just what that be if that were to be the case.
I next spoke about skills and referred to the difference between domain general and domain specific skills, and my understanding that, as that I was seeking classification at level 9 or above, it was general skills that were being referred to. This assertion was not contested.
I advised of research that evidenced that the single most desired skill sought by industry was the ability to write. I then elaborated on my writing skills and also on my research capabilities - the next most desired skill sought be [sic] employers.
In dealing with the experience criterion I informed that this basically referred to 'where have you been and what have you done'. This assertion was not contested.
I advised that I had experience in three States and at Commonwealth level and, more lately, at international level, and I had worked both in public and privates [sic] sectors and now in academia. I had worked in a number of areas of government.
42 The appellant was very disappointed with the composition of the panel as the panel did not include a representative from the Department of Corrective Services. He was of the opinion that such a person would understand the context in which his skills and experiences operate. He was also critical of the panel because the panel did not contact any of his referees. Whilst he had been in dispute with the CCC, in his written submission he had stated that if they needed comment from the CCC they could contact Irene Froyland who was his immediate supervisor and Director.
43 On 16 April 2010, a letter was sent from the Public Sector Commissioner to Mr Conran informing him that he (the Public Sector Commissioner) had not endorsed the appellant’s request to be classified as a permanent level 9 officer upon his return to the public service effective from 16 February 2007. It appears that a copy of this letter was not sent to the appellant.
44 On 12 August 2010, the appellant wrote to Mr Conran requesting advice on the progress of his classification assessment.
45 On 23 August 2010, Mr Conran responded as follows:
I refer to your letter of 12 August 2010 and to your request in accordance with the Public Sector Commission's ‘Re-employment of Public Service Officers Employed in Statutory Offices Policy’ (the Policy) to be classified at Level 9 upon your reappointment to the Public Service following your appointment at the Corruption and Crime Commission.
The Public Sector Commissioner in his advice to me dated 16 April 2010 has not endorsed your request to be classified at Level 9. A copy of this advice is attached.
In accordance with the Policy, I am formally advising you of this determination and that I support the Commissioner's view.
You may lodge a grievance with the Public Sector Commissioner, if you felt you have not been fairly dealt with in this process. However such a grievance is confined to the issues involving the reclassification review process and not the determination.
If you have any queries in relation to this matter, please contact the Manager Human Resource Services, Ms Kathryn Andrews.
The respondent’s evidence
46 The witnesses for the respondent included the respondent himself, Peter Francis Conran, who is the Director General of DPC, Gregory John Moore, the Assistant Director General, State Administration and Corporate Support, and Kenneth Allan Jones who is a Principal Project Officer and Senior Integrity Officer for DPC. These reasons, however, do not refer to the evidence of Mr Jones as I did not find his evidence to be relevant as it dealt with classification of political office holders under the RECAP policy which was not a policy that applied to the appellant’s circumstances. Those who were involved in the reclassification assessment of the appellant were also called to give evidence on behalf of the respondent. Each member of the reclassification panel gave evidence. Those persons were Ms Andrews, John Mercadante, the Acting Director of Corporate Services of the Department of Regional Development and Lands, and Aaron Pittock, a Principal Policy Officer at the Public Sector Commission. Dan Volaric, the Deputy Commissioner Agency Support of the Public Sector Commission, also gave evidence of his involvement in the classification of the appellant.
47 Prior to March 2009, Mr Moore had only been broadly aware of the appellant’s circumstances. He was aware that whilst the appellant came to be employed by DPC in February 2007, he had never held a position in the line structure or attached list of DPC. Mr Moore did not know why the DPC had offered the appellant employment. At the request of the appellant, Mr Moore and the appellant met on 20 March 2009. The appellant briefed him on his classification issues following his departure from the CCC. The appellant summarised his circumstances and the decisions of the Commission. He informed Mr Moore that he believed DPC should undertake an assessment of his skills and that DPC should regard him is a level 9 officer and he should be remunerated as such. Mr Moore told him he would bring himself up to date on the appellant’s position and undertook to get back to him. Over the next few weeks Mr Moore discussed the matter with officers of the Public Sector Commission who had been involved in the appellant’s classification dispute in PSACR 27 of 2006. He did so to obtain information about the issues. After discussing the matter with the appellant in a number of emails and with officers in the Public Sector Commission, Mr Moore briefed Mr Conran about the appellant’s circumstances and arranged for the appellant to meet with Mr Conran. The meeting took place on 6 May 2009. Mr Moore attended the meeting.
48 Mr Conran was appointed to the position of Director General of DPC on 28 November 2008. At that point in time he became the appellant’s employing authority pursuant to s 5 of the PSM Act. In early May 2009, he was briefed by Mr Moore about the appellant’s circumstances. Mr Moore informed Mr Conran that Mr Ross was a surplus officer who had been on secondment to Edith Cowan University since 21 June 2007. He was also informed the appellant had been employed by DPC in February 2007 after his return from the CCC at his previous substantive level 7.3 classification under the Public Service Award 1992. Mr Moore also told Mr Conran that the appellant had lodged an appeal in PSAC 27 of 2006 to the Public Service Arbitrator in 2005 and the Public Service Arbitrator did not recognise his level 9 classification, but did make a declaration as to the principles that should apply in accordance with s 180(3) of the CCC Act.
49 Prior to meeting the appellant, Mr Conran was aware that the former Director General of DPC had commenced formulating a policy to give effect to the statutory rights of return of persons returning to the public service such as those persons who were entitled the right to do so under s 180(3) of the CCC Act, but before any such policy had been implemented the public sector management functions undertaken by DPC were transferred to the Public Sector Commission on 28 November 2008. From that time DPC had no role in developing and implementing policy for statutory rights of return.
50 Mr Moore advised Mr Conran that the appellant was still seeking a review of this classification on exit from the CCC, but there was no capacity for him to do so either under Approved Procedure 1 or Approved Procedure 2. Approved Procedure 1 was limited to classifications up to and including level 8 and Approved Procedure 2 applied to Senior Executive Service (SES) positions. Mr Conran was also informed that at no time had the appellant occupied a substantive position with the DPC that could be assessed in accordance with these procedures.
51 Mr Conran was told by Mr Moore that work was now being undertaken by the Public Sector Commission to develop a policy framework for the re-employment of public service officers employed in statutory offices and that could provide a mechanism which the appellant might be able to use to seek an assessment of his classification above level 8.
52 Mr Conran accepted the advice that was given to him that it was not possible for him to assess the appellant’s classification in accordance with s 29(h)(ii) of the PSM Act given the effect of Approved Procedure 1 and Approved Procedure 2. Consequently, he decided that the only avenue available to the appellant to have his classification reviewed on re-entry to the public service was the application of the Public Sector Commission’s policy framework being developed for the re-employment of public service officers employed in statutory offices.
53 When asked in cross-examination whether emails sent by Mr Moore, Ms Andrews and Mr Volaric indicated that the DPC were setting in place an internal classification assessment of the appellant, Mr Conran said he could not comment on that. Mr Conran then said Mr Moore and Ms Andrews were DPC’s human resource experts and he relied upon their advice as he was not familiar with the RECAP process, nor was he familiar with the intricacies of human resource arrangements. He also said whether he had the power or authority to classify the appellant was a matter that he took advice on. He said he was trying to assist the appellant with the resolution of his issues. It was his understanding that the process itself that would be applied to the appellant’s circumstances was uncertain because policy issues in relation to former employees of the CCC had not yet been dealt with. When asked why he did not consider the Statutory Officers Policy to be a ‘good fit’, he was unable to recall why he had formed that view. He said, however, he wanted the classification process to occur in a fair and transparent way as he had some sympathy for the appellant’s position.
54 On 6 May 2009, Mr Conran and Mr Moore met with the appellant and discussed a range of matters including his wish to have his classification assessed. He told the appellant he had no power to review his classification given the effect of Approved Procedure 1 and Approved Procedure 2, but the Public Sector Commission was in the process of developing a policy framework for the re-employment of public service officers employed in statutory offices that could potentially be applied to his circumstances. He also told the appellant that if he wished to access this process once it was in place he was more than happy to ask the Public Sector Commissioner to apply the policy framework. He informed the appellant that determination of his classification was a matter for the Public Sector Commissioner and not for him, as the Director General of DPC, and he had no influence over the outcome. When asked in cross-examination about his recollection of other matters discussed at that meeting, Mr Conran said they discussed whether the appellant would remain at ECU carrying out work that he was doing which involved treatment of sex offenders which potentially had some value for police and corrections.
55 Mr Moore’s recollection of the meeting was a little different to Mr Conran’s. Mr Moore testified that Mr Conran indicated to the appellant that there were processes that he had to follow when looking at a classification for him, but he was prepared to look at those processes and procedures, but said he may not be able to ‘make the final call’. In particular, he told the appellant that if he was looking at a position above a level 8, he may not be able to do anything other than make a recommendation to the Public Sector Commission. Mr Conran also indicated to the appellant in a broad sense that he was aware that the Public Sector Commission were addressing a classification process for statutory officers who were returning to the public service, but as they did not know how long the Public Sector Commission were going to take to addressing the process they would attempt to put in place a process whereby the appellant could have his classification assessed. So Mr Moore set about shaping a ‘RECAP classification process’ for the appellant.
56 On 11 June 2009, Mr Moore took steps to apply the RECAP process. He sent an email to Mr Volaric informing him that he had drafted a proposal to undertake an assessment of the appellant based on the RECAP process for ministerial officers. However, that process did not proceed as Mr Volaric, on the following day, provided to Mr Moore a draft copy of a draft policy which provided for a process for statutory office holders to be returned to the public service. In an email sent to Mr Moore on 12 June 2011, Mr Volaric also questioned the process that was being contemplated by DPC in respect of the proposed review of the classification of the appellant. He said his concerns were the review could set a precedent for other returning CCC employees, could pre-empt what they were considering in regard to the officers from non-statutory bodies and that DPC could be determining a policy matter that the Public Sector Commission was responsible for.
57 Following the Public Sector Commissioner formally announcing the Statutory Officers Policy on 16 July 2009, Mr Conran wrote to the appellant and drew his attention to the policy framework and indicated that the processes and structure of the framework provided might address his circumstances to assess his rightful classification.
58 On 7 August 2009, Ms Andrews and Mr Moore met with the appellant. At the meeting, the appellant questioned whether the process contemplated in the Statutory Officers Policy would suit his situation. Mr Moore told him that it was not a neat fit, but it was his opinion that it at least addressed the issue of the classification review process and criteria to be addressed. When giving evidence Mr Moore explained that the Statutory Officers Policy contemplates that an officer is still working for a statutory body and is about to cease employment with the statutory office either through some fixed term arrangement or some other arrangement and resume their public service career. However, this was not going to happen in the case of the appellant because the appellant had already exited from the CCC and was on secondment to another organisation. After that meeting, Mr Moore had no further role in the appellant’s classification assessment.
59 After the appellant submitted his application for classification assessment on 9 November 2009, Mr Conran wrote to the Public Sector Commissioner on 11 December 2009 requesting the appellant’s classification be reviewed in accordance with the Statutory Officers Policy. On 22 December 2009, the Public Sector Commissioner wrote to Mr Conran asking him to request the appellant to write a summary of the alternative public service positions that he considered appropriate for the review having regard for the skills, experience and qualifications required, and his own skills, experience and qualifications. Mr Conran referred this request to Ms Andrews who emailed the appellant a copy of the request to the appellant for his attention.
60 On 16 April 2010, Mr Conran received written advice from the Public Sector Commissioner notifying him that the appellant’s submission for reclassification submitted in accordance with the Statutory Officers Policy had been assessed by a review panel and the review panel’s findings did not support the appellant’s reclassification to level 9. In the letter to Mr Conran the Public Sector Commissioner stated as follows:
Mr Glenn Ross submitted a request in accordance with the Public Sector Commission’s ‘Reemployment of Public Service Officers Employed in Statutory Offices’ Policy (Policy) to have his reappointment to the Public Service following his appointment at the Corruption and Crime Commission (CCC) determined at Level 9.
In accordance with the abovementioned policy, a review panel was established to consider Mr Ross’s request having regard for the terms and conditions outlined in the policy.
The panel comprised:
· Mr John Mercadante, A/Director HR, Department of Regional Development and Lands (Chairman),
· Ms Kathryn Andrews, A/HR Manager, Department of the Premier and Cabinet and
· Mr Aaron Pittock, A/Manager, Agency Support, Public Sector Commission.
The panel recommended against Mr Ross’s appointment at Level 9 and outlined its considerations as follows:
· Mr Ross undertook a range of duties at the CCC such as expert consultancy, liaison with senior officers, conduct of reviews and inquiries, analysis of intelligence and reporting. The nature of these duties was ·considered to be highly specialised in relation to the operations of the CCC and in comparison to the majority of Level 9 positions available in the Public Service. The opportunity to transfer this experience to positions at Level 9 in the Public Service, which are predominantly broader executive leadership and management orientated, was considered limited.
· Mr Ross provided details of two positions that he believed he would be suitable for, namely Director Corporate Services, Department of Regional Development and Lands, and Superintendent, Department of Corrective Services. The panel considered that the skills, knowledge and experience required for these roles are vastly different to those developed and applied by Mr Ross whilst at the CCC. Accordingly, direct transferability to these roles was considered limited. Of particular note in this regard was the specific knowledge of the chair of the panel of the role at the Department of Regional Development and Lands.
· The number of and frequency of available vacancies at Level 9 in the Public Service which require skills, knowledge and abilities congruent with the type of role, and claimed by Mr Ross, at the CCC is low. Accordingly, the panel formed the view that placement options for Mr Ross at Level 9 would be limited. Considered also in this regard was the predominantly finite nature of roles at Level 9 due to them normally being included in the Senior Executive Service (SES).
· In summary, the panel was not satisfied that Mr Ross's employment at Level 9 with the CCC supported his claim for reappointment to the Public Service at Level 9, and in particular the skills and abilities required at the CCC were not readily and appropriately transferable to the broader public service at Level 9, which would in all likelihood be within the SES and on a finite basis.
After considering the panel’s report and recommendation, I have not endorsed Mr Ross’s request to be classified as a permanent Level 9 Officer upon his return to the Public Service effective from 16 February 2007.
For your information, under the Policy, Mr Ross has the opportunity to lodge a grievance confined to the issues involving the review process, however not my determination. A copy of this letter will be forwarded to Mr Ross.
61 At the time Mr Conran received the letter from the Public Sector Commissioner he noted that the advice indicated a copy had been sent to the appellant. Mr Conran formed the view that the appellant had been appropriately notified of the outcome of his application and that no further notification was necessary.
62 On 12 August 2010, the appellant wrote to Mr Conran. Among other matters raised, the appellant sought formal advice on the outcome of his application for a classification assessment. Whilst Mr Conran was of the opinion that the copy of the advice provided by the Public Sector Commissioner to the appellant in April 2010 was all that was necessary to be provided to the appellant as he (Mr Conran) had not made any assessment of the appellant’s classification, Mr Conran complied with the appellant’s request and formally replied to the appellant on 23 August 2010. Mr Conran said, however, that he made no decision regarding the appellant’s level of classification, but simply accepted the decision of the Public Sector Commissioner.
63 Ms Kathryn Andrews is the Manager of Human Resource Services of DPC. She was appointed to this position on 18 August 2008. As a long-standing HR practitioner in the public service, Ms Andrews has considerable experience in reclassification of offices. On her appointment to DPC she was briefed about the DPC establishment including what employees were on the supernumerary list. About that time there were approximately 35 people on the supernumerary list, of whom, the appellant was one. She was also told that the appellant was seconded to ECU and that he was seeking a review of his classification on re-entry to the public service from the CCC. Ms Andrews advised Mr Conran that there was no capacity for him to review the appellant’s classification under Approved Procedure 1 and Approved Procedure 2 as the Director General of DPC does not have the capacity to reclassify above level 8.
64 Ms Andrews also became aware that the Public Sector Commission was developing a policy framework for the re-employment of public service officers employed in statutory offices. She was of the view that this was the only process the appellant might seek to use as a review of his classification.
65 Ms Andrews and Mr Moore met with the appellant on 7 August 2009. At that time the appellant was reluctant to prepare an application to be considered under the Statutory Officers Policy. Ms Andrews says that Mr Moore informed the appellant that certain aspects of the framework were not a perfect fit, but it was the only mechanism that would address his request for a classification review and provide the criterion that needed to be addressed.
66 Ms Andrews met with the appellant again on 4 September 2009 to discuss the Statutory Officers Policy. She discussed with him what information was required to enable the Public Sector Commission to conduct an assessment. Ms Andrews advised the appellant that she would seek information with respect to cl 4.2(d) of the policy which requires a duly authorised employment record from the statutory office. At that meeting the appellant indicated to Ms Andrews again that he was not sure that he wanted to undertake this process. Ms Andrews again informed him that this policy was the only avenue for his classification on re-entry to the public service and that his application would be assessed on its merits.
67 After Ms Andrews received the appellant’s submission on 10 November 2009 she asked him if the more detailed earlier version of his curriculum vitae (CV) that DPC had on file could be included in the submission. The appellant agreed. On 1 December 2009, the appellant reiterated his request to Ms Andrews that certain officers of the Public Sector Commission who had been involved in the previous assessments should not be involved in the current assessment. Ms Andrews informed the appellant that she would pass on his request to the Public Sector Commission. On 9 December 2009, Ms Andrews sent an email to the appellant asking him to confirm he was seeking reclassification to a level 9. On 9 December 2009, he replied that he was seeking a level 9 or higher. On 10 December 2009, Ms Andrews advised the appellant by email that he could only be reclassified to a level 8 or a level 9 as he must have been held against a higher position for a minimum period of two years as per the classification eligibility criteria.
68 The panel that assessed the appellant’s submission to be classified to level 9 was composed of Ms Andrews, Mr John Mercadante and Mr Aaron Pittock.
69 Mr Aaron Pittock is employed at the Public Sector Commission. At the time of his involvement in this matter he was the Acting Manager of the Agency Support Division. He was asked by Dan Volaric, to facilitate the consideration of the appellant’s classification in accordance with the principles of the Statutory Officers Policy. When Mr Pittock considered the policy he was of the view that the appellant’s home agency was DPC and this was despite the fact that the appellant had not in fact performed any substantive position within DPC.
70 Mr John Mercadante agreed to act as an independent chair of the assessment panel to review the classification of the appellant in accordance with the Statutory Officers Policy. Mr Mercadante has worked in the public sector for about 20 years. He has extensive experience with PSM Act approved classification systems, job design and classification of senior positions, and recruitment to those positions. He has also managed the creation and restructuring of several senior management structures in the public sector. Mr Mercadante gave evidence that he was of the opinion that the role of the panel under the Statutory Officers Policy was to look at what positions the appellant could be placed into subsequent to a reclassification to level 9. He also said it was not a question of looking at whether there was one vacancy within level 9 which had been historically available. If they were to reclassify the appellant they would need to be confident that there was a likelihood that the appellant would be able to be realistically placed in a level 9 position within a reasonable period of time.
71 When the panel met with the appellant on 25 February 2010, Mr Mercadante informed the appellant that he was invited to address the panel and the panel had not yet commenced the assessment process and they were there to make the assessment. Mr Pittock gave evidence that the panel explained to the appellant that the panel’s role was to assess his application against the policy despite certain aspects of the policy not being strictly applicable to him. Mr Pittock also said they informed the appellant that they had read the documents, but they had not made any assessment or commenced any assessment process at that point. Ms Andrews gave evidence that at that meeting they advised the appellant that they would follow the process outlined in the policy. She had looked at the documents before the meeting took place because she had done a pre-assessment of the papers before submitting them to the Public Sector Commission. She agreed with the evidence given by the appellant that she might have said that formal qualifications were not relevant to the exercise before the panel as qualifications are desirable and form part of the skills and experience of the person, but are not a key factor to reclassification to a level 9. Ms Andrews explained to the Board that the task of the panel was to assess the skills and experience the appellant had acquired in the level 9 position at the CCC. To do so they considered the JDF of the CCC level 9 position and they listened to the appellant at the meeting of about what work he had performed at the CCC and made an assessment of the transferability of those skills and experience to the public sector in level 9 positions.
72 The panel met to consider the appellant’s submission on 18 March 2010. The panel considered all information available, including the appellant’s CV and submission, as well as the information orally provided to the panel. To enable the assessment of the appellant’s skills, Ms Andrews obtained copies of three JDFs from the CCC. The first was for the position of Director which was the Class 1 position that the appellant acted in for a period of time. The second was a JDF for the level 9 position that he held which was Manager Corruption Prevention, Education and Research. The third JDF was a draft level 8 position with the title, Manager, Corruption Prevention Research and Education. As the appellant had carried out the level 8 position for a very short period of time, they focused on the work he had carried out in the level 9 position. When asked specifically about the skills of the duties set out in the level 9 CCC JDF, Ms Andrews said that those duties were not transferrable outside of the CCC, with the exception of analytical duties.
73 The panel concluded that the appellant was not suitable for appointment at level 9. They found that the duties of the appellant at the CCC were of a more specialised nature than those found in SES roles and the positions nominated by the appellant were not considered appropriate. Consequently, they concluded that the prospect of finding the appellant a level 9 position that matched his skills and experience was low and the appellant’s application to be reclassified to a level 9 could not be supported. Mr Pittock explained the reason why he decided that the appellant did not warrant a level 9 classification. These were a number of factors which were considered together. These were:
(a) the duration of the recent position held at the CCC by the appellant and other previous positions held by him were not reflective of the broader positions in government at level 9;
(b) there was a gap between the role held in recent times at the CCC and the appellant’s other knowledge, skills and experience.
74 When these factors were matched against predominantly SES positions in government, which require certain criteria and broader experience or qualifications in particular at a higher level in terms of leadership and management, it was apparent that the appellant did not have these skills or experience. Mr Pittock has a broad knowledge of what is available at level 9 as vacancies of those positions are dealt with by the Public Sector Commission. He also reviewed positions that had been available at level 9 in a six-month period prior to the appellant’s assessment in March 2010. This information was obtained from the online government service Jobs Board. He was unable to locate a position at level 9 that he considered would be within the appellant’s skill and capability. Whilst Mr Pittock was unable to say or give any details of the vacant positions that he examined in the six-month period, he said his recollection was that those positions were at the high end of executive leadership and management which were broader than the work that had been carried out by the appellant.
75 Ms Andrews gave evidence that the panel looked at the appellant’s skills and experience whilst at the CCC. She said they also gave some consideration to his skills and experience since leaving the CCC in terms of his work at ECU and assessed the transferability of those skills. They concluded that the transferability of those skills was limited across the public sector at level 9 as the appellant’s work at ECU had little relevance to positions in the public sector. Ms Andrews also gave evidence that Mr Pittock advised the panel members that he had done a comprehensive search of available level 9 positions. Her evidence was that he did not show a list to the panel members. However, they discussed a couple of ‘positions’ and a couple of agencies, but there were no positions that had come available in the last two to three years with the kinds of skills and experience that were required. She also said that the positions at level 9 in the appellant’s skill set were very limited. When asked about the research of level 9 positions that Mr Pittock had undertook, Ms Andrews said that she did not look at any of the jobs that Mr Pittock had located and identified, as he did not print out a list. She said they had a very general discussion about level 9 positions and Mr Pittock simply said he had done an assessment of level 9 positions across the sector and there were limited positions in the appellant’s skill set. She did not disagree with his assessment of the availability of level 9 positions as she regularly reviews the availability of positions at that level from time to time and she is aware of the type of positions that become available at level 9.
76 Mr Mercadante said the assessment was not a straightforward matter. There were a couple of elements of the policy that could not be strictly applied and they were asked to put those matters aside. Unlike Ms Andrews, he recalled viewing a list which he said was a computer spreadsheet setting out a list of level 9 positions that had been advertised in the public sector in the past six to 12 months. Mr Mercadante said there were about 20 positions in that list that had been advertised during that period. Whilst he could not recall the titles of any of those positions, he said they were very much generalist SES managerial positions. Mr Mercadante said that the positions on the list were considered to be unsuitable as the SES is designed as a generalist managerial role and that their assessment of the appellant was whilst he had carried out some managerial roles in the past they had been done a reasonable while ago and the path of his career had become specialised. Therefore, they formed the view that his skills were not transferrable to a generalist management role. They did not, however, look at any JDFs of positions on the list. Mr Mercadante said that it was not necessary for him to do so as he was very familiar with the positions in that list because when they create executive roles they use job descriptions as comparatives in classification exercises. Consequently, he was broadly familiar with the nature of duties with the type of roles that were in the list. Mr Mercadante did not give the appellant’s work at ECU a lot of weight on account of the work being quite specialised in nature and not of a managerial function.
77 When cross-examined, Mr Mercadante conceded that the positions held by the appellant at the CCC at Class 1 and level 9 were managerial positions. He said, however, the managerial positions held by the appellant at the CCC were not in the nature of executive positions and that the management roles were limited. He also pointed out that there were not many positions that reported to the positions that the appellant had acted in or worked in at the CCC. He also said whilst they had regard to the fact that the appellant would have attained managerial experience as a Prison Superintendent whilst working in Victoria that period of work was very short and the experience was not recent. Consequently, it was the level 9 position at the CCC that they gave most weight to. When Ms Andrews was asked why she thought the appellant was unsuitable for the prison superintendent’s positions, Ms Andrews said that she thought his current skills and experience had moved away from the managerial type competencies required of those positions and he would not be competitive in that environment anymore. Mr Pittock also expressed a similar opinion. As to the role of Director of Corporate Services, Mr Pittock said that was a mainstream SES role which seemed to be vastly different to the appellant’s previous experience. When asked to explain what are the skills required for an SES position, Mr Pittock said SES positions are fairly broad leadership executive management roles and their core duties are quite specific. When asked about his views of the leadership and management skills that the appellant had acquired generally and at the CCC, Mr Pittock said based on the role and duties performed and the requirements of the CCC environment the work performed by the appellant was fairly narrow. He said the transferability of those skills to the broader requirements of level 9 positions would be difficult.
78 Mr Mercadante also said that the appellant’s work had an extremely strong focus in the justice, crime and education areas and that although such work (including some of the overseas work the appellant spoke about), was of high value, important work, it was not comparable with the types of roles that were generally available at level 9 and it was the similarity of roles, the nature of the experience, the length and the recency that were factors that had to be considered.
79 Ms Andrews said that the panel made the assumption that the appellant had satisfactorily performed all of the functions of the level 9 position at the CCC as they did not ask the CCC for a duly authorised statement. When asked why the panel did not contact the person nominated by the appellant as a contact person at the CCC, Ms Andrews said they did not feel comfortable approaching the CCC regarding the appellant so they made an assessment of the work performed by the appellant at the CCC solely based on the JDFs. She, however, conceded she only had a cursory understanding of the ‘workings’ of the CCC. When asked why they did not contact the appellant’s nominated referee from the CCC, Ms Andrews said that the Statutory Officers Policy required the panel to obtain a statement from the CEO at the time. She also said she had no idea who the person was that the appellant nominated and was not aware that the person had been his supervisor at the CCC. She also said that she did not consider that the referees could provide them with any assistance, as they had to make an assessment of the transferability of skills to the public sector and there was no requirement in the policy to seek referees.
80 When asked why referees were not contacted, Mr Pittock said that the reason why the panel did not contact any referees was because they were of the view that it was quite clear from the information provided there was a large gap between suitability of the appellant to be classified at a level 9. He said, however, if the panel members had been vacillating between being in favour of the reclassification then they would have considered contacting the referees. Mr Mercadante simply said he did not find it necessary to speak to any of the appellant’s referees as he accepted that the appellant had carried out his functions and duties at the CCC competently.
81 The panel’s assessment report was prepared by Mr Pittock. He provided a draft copy to Ms Andrews. Ms Andrews made no changes to that report and simply signed it. Mr Mercadante was not aware that Mr Volaric was going to be playing a role in checking or assessing the report. When he received a draft report, he made some changes to that report, but he could not recall exactly what they were.
82 In 2006, Mr Volaric was employed in DPC and was the officer responsible for assessing whether the appellant was entitled to return to the public service pursuant to s 180(3) of the CCC Act. At that time there was no mechanism in place to deal with officers returning from the CCC and they took the view that the appellant’s appropriate classification upon return, given the circumstances involved, was level 7, which was the classification the appellant held prior to his appointment to the CCC. The appellant was a level 9 officer with the CCC, although that was in dispute as the CCC had reclassified his role. Mr Volaric said they took that into account and the appellant’s limited prospects of obtaining a level 9 position in the SES or in a non-SES position. When giving evidence in PSACR 27 of 2006 Mr Volaric had said ((2008) 88 WAIG 265 [8]):
… that based on past experience it would not be easy to redeploy Mr Ross at Level 9 within the public service due to the seniority of the level and the nature of such positions as those opportunities were few and far between.
83 Mr Volaric explained to the Board in this matter that SES positions are very senior positions within the public service, that they are generally second or third tier in nature and they fundamentally are a role of leadership and executive management, with perhaps, a policy function attached to it. He considered that that the appellant’s background at the CCC was more specific to the workings of the CCC. He also said that other non-SES level 9 positions are not positions that come available on a regular basis. However, in early 2007 the only involvement the DPC had with non-SES level 9 positions was determining their suitability for inclusion in the SES as at that time the appointment processes for the establishment of level 9 non-SES positions were largely left up to the agencies. For this reason at that time he did not become aware of ongoing availability of level 9 non-SES positions as those positions require a particular expertise or a particular requirement specific to a role or an agency.
84 When the Public Sector Commission was created on 28 November 2008, several functions were transferred from DPC to the Public Sector Commission. As part of that process Mr Volaric left the DPC and went to work in the Public Sector Commission. When the office was created, among other matters, the Public Sector Commissioner under delegation was provided with all the powers and functions of the Minister for Public Sector Management, including being the employer of chief executive officers. Pursuant to s 10 of the PSM Act, the Public Sector Commissioner as delegate of the Minister was required to advise on structural changes, programs for management improvement, policies, practices and procedures relating to any aspect of management that should be introduced to improve the effectiveness of the public sector. As part of the delegated function under s 10 of the PSM Act, the Statutory Officers Policy was created by the Agency Support Division of the Public Sector Commission. Mr Volaric’s role was to instruct staff to develop the policy and in doing so to take account of the principles set out in the decisions given by Commissioner Scott in PSACR 27 of 2006. He saw the circumstances involving the appellant as fundamental in establishing the policy. However, Mr Volaric took the view that the appellant was not eligible for consideration of classification under the policy because one of the criteria under the Statutory Officers Policy is that a person who has won a higher classification at a statutory office needs to have carried out that work through a merit based process and have undertaken that role for a continuous period of not less than two years. Mr Volaric said the appellant did not fulfil the later requirement as he was appointed to a level 9 role at the CCC in October 2004 and the position was downgraded by the CCC in January 2006. Also, the policy required an indication to be given by the statutory office, in this case the CCC, of the performance of the individual concerned. Notwithstanding these issues, he was of the view that it was reasonable and fair that the appellant be given an opportunity to present his case for reclassification in accordance with the intent behind the policy.
85 Mr Volaric was aware that the appellant had objected to him and Mr McLaughlin having any involvement with the classification process. Yet he did not agree with this objection. When the Public Sector Commissioner, Mr Mel Wauchope, received Mr Conran’s letter dated 11 December 2009 requesting an assessment of the appellant’s classification, Mr Wauchope asked Mr Volaric for advice and preparation of a draft response. Mr Volaric spoke to Mr Wauchope about the letter and the request contained in the letter that officers involved in previous assessments not be involved in the assessment. Mr Volaric told Mr Wauchope that he would not be on the panel, but that the panel report would have to come through him. He also told Mr Wauchope that he disagreed with the claims made by the appellant that he not be involved. He told the Board it had been four years since he had made the previous assessment and he said that he would not suggest to people in the Public Sector Commission to allow the appellant to make an application in accordance with the Statutory Officers Policy, if he would object to the appellant being classified at level 9.
86 Mr Volaric gave instructions to Mr Pittock to form a panel comprising a representative from the department at which the appellant was employed, an independent chairperson and a senior officer from within the Public Sector Commission, as all such persons would be familiar with HR management practices and processes. Mr Volaric anticipated the panel could have a discussion with the appellant, have a look at the information he presented, consider the application and the suitability of positions at the level the appellant sought, then consider the frequency of those positions being made available and the transferability of his skills in line with the principles set out by Commissioner Scott. He also told Mr Pittock to research available level 9 positions over a six-month period.
87 Mr Volaric said that he was satisfied with the people who were nominated to form the panel as all three members were level 8 officers with a HR background. As to the composition of the panel, he suggested to Mr Pittock he would need to get someone from DPC and he suggested to Mr Pittock that Ms Andrews would be suitable because she was the manager of human resources. Mr Volaric, however, did not make any suggestion to Mr Pittock that Mr Mercadante should be on the panel.
88 After the selection panel made its recommendation, the report of the classification panel came to Mr Volaric prior to being in its final form, and prior to the report being considered by the Public Sector Commissioner. When Mr Pittock provided Mr Volaric with the draft report Mr Volaric made his own assessment as to whether the panel had engaged in a meaningful process to address the principles in the Statutory Officers Policy and whether they had made a recommendation that he agreed with. He spent some 30 minutes to an hour discussing the assessment report with Mr Pittock. He made general comments to Mr Pittock about grammar and style. Mr Volaric said he did not alter the report in any way that was fundamental to the panel’s decision-making process. He formed the view that the panel had appropriately considered the appellant’s claim and had justified the reasons for the recommendation they made.
89 When it was put to Mr Volaric in cross-examination that no notes were kept of the assessment panel’s discussion, Mr Volaric said that notes should have been taken as the policy allows a person to seek redress regarding the process undertaken by the panel and if there was an objection to the process, the Public Sector Commissioner through him (Mr Volaric), would wish to be able to review that process by having regard to those notes. Mr Volaric was also not aware that at no time was the appellant invited by the panel to address the SES selection criteria. When asked whether it would be fairer for the appellant to have had an opportunity to make a submission about the SES selection criteria, Mr Volaric said the difficulty with that was that the SES criteria are very broad and it would be impracticable for the appellant to identify his ability to meet broad criterion such as shaping strategy, unless the criterion specifically related to a position that was available as an actual position, so that the panel could make an assessment of the suitability of the appellant for such a role. When it was put to Mr Volaric that Mr Pittock primarily looked at SES positions, Mr Volaric said (ts 147):
… Well, I can't speak on behalf of the panel. However I would take the ... part of the view I would take is before we get to the question of his transferability of skills I need to satisfy myself are there the available positions of the nature that may be suited to Mr Ross, and then the transferability of skills may certainly be an issue that has to be considered in that context. If that was to be the case then I'd suggest that some further clarification by the panel as to his appropriateness for an SES-type position could be further explored.
90 Mr Volaric explained the application of the Statutory Officers Policy was intended to achieve recognition of a classification held in a statutory office where an appointment has been through merit based process, and the nature and the skills and experience of an individual could enable a readily appointment to a particular position outside the statutory office, at the level of classification sought. In an ideal situation that would be in a position that was currently available within the officer’s home organisation. He told the Board that immediate appointment is not necessary, it is more about the availability of a position at the level sought and the likelihood of a position being readily available. In particular, the nature of positions of a particular classification would have to be assessed as relatively frequent in nature, so that they are either readily available within a home agency, or the person could be realistically redeployed reasonably soon and quickly to another agency.
91 When it was put to Mr Volaric that the appellant’s referees were not consulted, Mr Volaric said in his view that it would be appropriate to contact the referees if the panel had come to the view that they were considering supporting a higher level classification.
92 Mr Volaric explained that level 9 SES positions are finite. An appointment to the SES is only for a contract for a fixed term period so that the classification that attaches to the SES position does not attach to the officer who holds the SES position.
93 Mr Volaric said that personal reclassifications are not prevalent and have not been supported following the introduction of broadbanding. They do, however, approve personal classifications under Approved Procedure 1 based on the work value considerations of an actual position carried out by an individual. If the individual can demonstrate they have undertaken work at the higher work value for a continuous period of 12 months, the chief executive officer of an agency has some discretion to provide the higher classification to the individual. Mr Volaric also described the process to create a level 9 position. A chief executive officer writes to the Public Sector Commission seeking approval to create a position at level 9 or above and for its inclusion in the SES. The chief executive officer is required to provide the rationale and supporting documentation which is outlined in an executive classification framework. The Public Sector Commission then forms a preliminary view whether or not there is sufficient work value to warrant the establishment of a position at that level. They may hold discussions with the agency, but in the past few years they have referred those discussions and an assessment to an independent company, Mercers, to undertake an assessment using the Mercer Cullen Egan Dell job methodology. The Public Sector Commission then evaluates the assessment and forms a view as to whether the classification request is justified.
94 For positions within the SES, a chief executive officer has the ability to appoint an individual to that position on a contract up to five years, but the person appointed does not hold that classification permanent on an ongoing basis. Up to level 8, agencies may determine a classification for a position. Above level 9, the classification of a position is to be determined by the Public Sector Commissioner. The whole process of an assessment for the creation of the position relies upon assessment of work value and has nothing to do with the classification of an officer. A SES officer at the conclusion of a work contract has an automatic right of return under the PSM Act to their previous level, if they were a public sector employee for a period greater than six months on a continuous basis. However, those who are appointed to the SES from outside the public sector have no right of return. Where a person is a permanent officer who is seeking to be redeployed, SES positions have been made available to redeploy such a person. This has occurred on one occasion to a person who had a permanent classification of level 9. The person concerned was redeployed to a level 9 SES position. He was required to enter into an SES contract and his right of return remained at level 9.
Statutory Officers Policy
95 The Statutory Officers Policy provides:
BACKGROUND
The enabling legislation of a number of Statutory Offices provides some permanent public service officers appointed to the Statutory Office with, inter alia, an entitlement upon expiry of their appointment to be re-employed back in the public service at a classification at least the equivalent level to that held prior to their employment at the Statutory Office.
However, the enabling legislation does not identify the process and mechanisms to give effect to this statutory entitlement of re-employment.
PURPOSE
This policy has been introduced pursuant to s10 of the Public Sector Management Act 1994 to give reasonable effect to the entitlement of principal statutory office holders and employees of statutory offices to be re-employed in the public service.
POLICY APPLICATION
The policy applies to those persons with a statutory right to be re-employed in the public service only.
It provides for the Public Sector Commissioner, working with the returning person's former home agency, to facilitate the person's re-employment; terms and conditions of appointment to be applied including the classification/status of the person.
The re-employment of an employee returning from a statutory office must comply with the attached operating principles and classification review processes.
The terms and conditions of re-employment of a principal statutory office holder is at the discretion of the Public Sector Commissioner.
EFFECT
This policy comes into effect on 6 July 2009
INQUIRIES
Inquiries regarding this policy should be directed to the Agency Support Division, Public Sector Commission on 9219 6200.
OPERATING PRINCIPLES AND PROCESSES
1. Eligibility
This policy applies to officers employed in Statutory Offices, who are eligible under relevant enabling legislation, for re-employment to an office under Part 3 of the Public Sector Management Act 1994. With respect to principal statutory office holders, their terms and conditions of re-employment will be at the discretion of the Public Sector Commissioner.
2. Operating Principles and Expectations
• The re-employment provisions under enabling legislation need to be activated by eligible employees in writing, confirming their election to exercise their right to be re-employed under those relevant provisions.
• Such an election needs to be done in advance of the employees' cessation of employment with the Statutory Office. It is not open for an eligible employee, once having left the Statutory Office, to choose at a later date whether or when they intend to exercise a return to public service employment.
• The provisions apply to eligible employees, regardless of whether they had or had not formally resigned from their former public service position.
3. Re-Employment Process
To give efficacy to re-employment arrangements, the following arrangements apply:
• Eligible Employees: to provide written notice to their (Statutory Office) employing authority of their intention to exercise a right of re-employment under enabling legislative provisions
• The Statutory Office: to provide interim meaningful work and be responsible for the continued payment of the employees' salary until the cessation of their employment at the Statutory Office.
Where an employee elects to return to public service employment, the Statutory Office is to:
– formally notify the Public Sector Commission (PSC) of the officer's election;
– certify that the employee satisfies the enabling legislative provisions; and
– advise of a proposed re-employment date.
Ideally, this advice will be provided at least 3 months, but no less than one month, prior to the employee's intended cessation date at the Statutory Office. This would provide time to give effect to re-employment arrangements and to minimise disruptions to the relevant Statutory Office, the employee and the re-employing Department.
The PSC will work with the employee's former department to facilitate their re-employment.
Employees will be re-employed at their pre-Statutory Office substantive (public service) classification level. However, where an employee has been appointed at a higher classification with the Statutory Office, they will be provided with the opportunity (but no guarantee) to be re-employed to a position at a higher classification to that of their former public service position based on the following principles:
a. the availability of positions within the public service, at the equivalent level of classification and above as the officer occupied immediately prior to appointment to the Statutory Office;
b. the nature of those positions; and
c. the experience, skills and qualifications required of those positions and the experience, skills and qualifications of the officer concerned (i.e. transferability of those skills, experience and qualifications).
Attachment 1 diagrammatically portrays the re-employment process.
Note: where the former public service Department no longer exists, an alternative Department under the same or nearest relevant Minister's portfolio may assume responsibility for the officer's re-employment.
4. Classification Review Process
Consideration of re-employment to a position at a classification above that occupied immediately prior to appointment to the Statutory Office will, ideally, be undertaken prior to, but no later than three months following their re-employment to the public service, or as otherwise determined by the Public Sector Commissioner. The process to give effect to this is referred to as "Classification Review”.
4.1 Classification Review Criteria
The classification review process seeks to provide a model whereby the principles outlined can be considered and applied, where appropriate. Before consideration for classification review is made the following is to be met:
Eligibility Criteria
• The re-employment provisions under enabling legislation must have been activated by eligible employees.
• The officer must have secured an appointment to a position at the Statutory Office (excluding acting) which is above the officer's public service substantive classification through an open market merit based appointment.
• At the date of re-employment to the public service and excluding acting, the officer must have continuously performed the full duties and responsibilities of their higher classified position at the Statutory Office for a minimum period of two years.
• The Statutory Office is to formally confirm that the officer has competently and consistently demonstrated their capacity to satisfactorily undertake the duties and responsibilities of the position and at the classification determined.
4.2 Application Format
Applications by an employee for classification review should be addressed to the Public Sector Commission (PSC), and contain the following:
a. A resume and/or details of the officer's work history, with particular reference to duties undertaken in the officer's substantive public service position and that subsequently held at the Statutory Office.
b. A copy of the Job Description Form applicable to the position occupied at the Statutory Office and on which classification review is being based.
c. Work value information concerning work undertaken at the Statutory Office using headings such as those examples listed below:
Policy – involvement in and influence on the policy development process, e.g. what type of policies were involved? Did the role initiate, develop, advise, coordinate, negotiate, implement or monitor policy initiatives, or support other officers carrying out some or all of these responsibilities? What was the reporting relationship with the Government and the Statutory Office? What were some of the direct results of the officer's input?
Legislation – was there any roles in instructing Parliamentary Draftsperson? involvement in assisting bills through Parliament?
Research – types of research, including examples of subjects, sources of research, results and examples of research (speeches, reports, briefing notes), reporting lines, etc.
Management – advice of responsibilities that could include the number of staff supervised, human resource management and financial responsibilities, reporting lines and to whom. Advice on compliance with any legislative requirements such as the Freedom of Information Act and the Financial Administration and Audit Act.
Any other matters that may affect the assessment of the value of the work undertaken at the Statutory Office in relation to comparably classified public service positions.
d. A duly authorised employment record statement from the Statutory Office to confirm that:
The officer secured their appointment to the higher classified Statutory Office position(s) through a merit based appointment process;
The officer, at the date of re-employment to the public service, had continuously performed the full duties and responsibilities of the higher classified Statutory Office position for a minimum period of 2 years; and
That such performance had been undertaken at the Statutory Office classification level, competently and satisfactorily in all respects.
e. A summary and the nature of alternative public service positions that the employee considers to be appropriate having regard for their skills, experience and qualifications, and any other requirements required for appointment, and those held by the employee.
4.3 Assessment Procedures
Provided that a classification review application meets the above criteria, the following procedures will apply:
• The application will initially be assessed by officers of the PSC, including an analysis of the work undertaken and the availability of vacant positions within the public service, at the equivalent level of classification and above as the officer occupied immediately prior to appointment to the Statutory Office. The assessment may involve interviews, including meetings with the applicant and his/her Statutory Office supervisor, and if required additional advice being sought from that Office. The applicable assessment period will be limited to the period that formal notification of the officer's election to return to the public service is received and ending 3 months following their re-appointment to the public service (unless otherwise approved by the Public Sector Commissioner);
• A formal recommendation will then be forwarded to a Statutory Office Classification Assessment Panel (Assessment Panel established by the PSC);
• The Assessment Panel will forward its recommendation to the Public Sector Commissioner for determination;
• The applicant will be advised in writing of the Commissioner's decision.
4.4 Assessment Panel
The Statutory Office Classification Assessment Panel will consist of a senior representative from the PSC with appropriate HR/Classification determination experience, a representative of the employee's home agency and an independent chairperson.
4.5 Classification Determination
Each case will be dealt with on its merits and the Public Sector Commissioner's determination is final.
Applicants will have the opportunity to lodge a grievance with the Public Sector Commissioner if they consider they have not been fairly dealt with in this process. However, such a grievance is confined to the issues involving the reclassification review process and not the determination.
The effective date of reclassification is the date of the employee's re-employment to the public service under enabling legislation.

POLICY FOR THE RE-EMPLOYMENT OF STATUTORY OFFICERS

Cease Employment at Statutory Office [in accordance with enabling legislative provisions]

Potentially Activated through
· Employee Resigns
· Statutory Office doesn’t renew contract
· Employee notifies Statutory Office of non-interest in renewal of contract




Requirements
· Only applies to employees who were permanent public servants prior to their appointment to the Statutory Office
· Doesn’t apply to an employee who is dismissed for substandard performance, breach of discipline or misconduct
· Employee required to formally notify of election prior to cessation of employment with Statutory Office


Responsibilities
· Employee required to formally notify of election prior to cessation of employment with Statutory Office
· Statutory Office to formally advise Public Sector Commissioner of employee’s election and continues to provide employee with meaningful work and to pay their salary until cessation of employment
· PSC to assist returning agency in giving effect to re-employment


Re-Employment in
Public Service

Effected
· Through return to pre-Statutory Office employing agency
· Returns at pre-Statutory Office substantive public service classification level but consideration given to appointment at a higher level, where applicable, based on endorsed principles




Responsibilities
· Employing authority to give effect to through formal offer to include re-employment conditions.
· Employing authority assumes responsibility as ‘employing authority’


Access to
Redeployment

Eligibility
· Following re-employment, the Employment Authority may request registration where internal employment opportunities are unavailable
· Request to be considered subject to all eligibility requirements being met


Responsibilities
· Employing Authority pays salary, and provides interim work and case management services until redeployment resolved

The appeal
96 On 23 August 2010, the respondent sent a letter to the appellant in which he advised the appellant that his request to be classified as level 9 upon his reappointment to the public service following his appointment to the CCC had not been endorsed by the Public Sector Commissioner. The letter also stated that the assessment had been conducted in accordance with the Statutory Officers Policy and that he (the respondent) supported the Public Sector Commissioner’s view. The appellant contends that this letter constituted a ‘decision’ within the meaning of s 80I(1)(a) of the Act as the respondent had a duty, subject to the PSM Act and to any other written law, pursuant to s 29(1)(h) of the PSM Act to ‘classify, and determine the remuneration of,’ the appellant.
97 The appellant says that the respondent improperly delegated his duty to conduct the classification process to the Public Sector Commissioner, and having done so, failed to properly consider the decision of the assessment panel and simply adopted the recommendation made by the panel. In support of this argument the appellant relies upon s 33 of the PSM Act which provided at the relevant time that a chief executive officer may, in writing either generally or otherwise provided by an instrument of delegation, delegate to an employee in his or her department or organisation any of his powers or duties under the PSM Act, other than the power of delegation. The appellant contends the delegation by the respondent to the Public Sector Commissioner to carry out the classification assessment was not properly done because it was not in writing, nor was the delegation to an employee in the respondent’s department or organisation.
98 The respondent says the appeal is incompetent on the following grounds:
(a) The respondent points out the only relief that can be claimed against the respondent is to require him to assess the appellant’s level of classification under s 29(1)(h) of the PSM Act, if the complaint is that he did not do so. The respondent cannot determine a classification above level 8 and that is a different process than the one conducted, that is the subject of this appeal. The determination and process appealed from was under s 180(3) of the CCC Act which was made and conducted by the Public Sector Commissioner, not by the respondent, who had no role under the CCC Act. Pursuant to s 29(1)(h) of the PSM Act as it stood at the relevant time, the respondent only had power to classify, and determine the remuneration of, employees in a department and their offices and vary such classification and remuneration in accordance with such classification systems and procedures, if any, as are approved in respect to those employees or any class of those employees.
(b) Section 29(1)(h) of the PSM Act is not applicable because the classification system, Approved Procedure 1, only permits chief executive officers to classify jobs up to level 8. Where classifications above level 8 are sought the Public Sector Commissioner is required to assess and approve the classification.
(c) To the extent that this appeal seeks to review the classification of the appellant’s level of appointment per se, that is a matter which is within the exclusive jurisdiction of the Public Service Arbitrator by s 80E of the Act.
(d) The appeal does not come within s 80I(1)(a) of the Act as:
(i) It concerns salary which is determined by the level of classification therefore within the jurisdiction of the Public Service Arbitrator.
(ii) It concerns salary which is excluded from consideration under s 80I(1)(a).
(iii) It does not concern the conditions of public service officers but the appellant’s.
(iv) It concerns the application of s 180 of the CCC Act and to that extent it is an industrial matter which is within the exclusive jurisdiction of the Public Service Arbitrator.
(v) It does not concern the interpretation of any provision of the PSM Act, rather it concerns the merit of the decision not to classify the appellant at level 9 under s 180(3) of the CCC Act, from the date of his return to the public service in February of 2007.
(vi) It does not concern the decision of an employing authority (s 5(1) of the PSM Act).
99 The remaining grounds of contention put forward on behalf of the appellant and the respondent go to the merit of the process conducted by the assessment panel and the Public Sector Commissioner and whether the process was affected by actual or apprehended bias.
(a) Was a decision made by the respondent within the meaning of s 80I(1)(a) of the Act and did the respondent have the power to classify the appellant?
100 This appeal is sought to be brought pursuant to s 80I(1)(a) of the Act which relevantly provides:
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;
101 The question whether the respondent made a ‘decision’ within the meaning of s 80I(1)(a) of the Act turns on several issues. The first is whether the respondent as a chief executive officer of a department had the power to classify the appellant, that is, did he have the power to make a decision. The second issue is when Mr Conran wrote to the appellant on 23 August 2010 and informed the appellant the Public Sector Commissioner had not endorsed the appellant’s request to be classified at level 9, did this communication constitute a ‘decision’ within the meaning of s 80I(1)(a) of the Act. For the reasons that follow these two issues are inextricably tied.
102 Although s 80I(1)(a) of the Act empowers the public service to review a ‘decision’ of an employing authority in relation to an interpretation of any provision of the PSM Act, what constitutes a ‘decision’ of an employing authority in this legislative provision is not defined in the Act or in the PSM Act. In considering this issue it is helpful to have regard to what constitutes a ‘decision’ under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Under that legislation a ‘decision’ of a decision-maker of an administrative character that is reviewable under s 3(1) of the Administrative Decisions (Judicial Review) Act is an ultimate or operative determination and not a mere expression of opinion: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (338) (Mason CJ). Whilst s 80I(1)(a) of the Act enables a review of a ‘decision’ that is narrower in scope to the power to review in s 3(1) of the Administrative Decisions (Judicial Review) Act, which enables the review of a decision of an administrative character made, or required to be made under an enactment, the observations of Mason CJ are apposite in construing s 80I(1)(a) of the Act as the power of the Public Service Appeal Board to adjust a ‘decision’ could only be effective if the ‘decision’ that is reviewed had operative effect.
103 At the relevant time pursuant to s 29(1)(h) of the PSM Act, the respondent was empowered to classify or vary the classification of an employee and their office, post or position in accordance with any classification systems and procedures, if any, as were approved in respect of an employee. Whilst a classification procedure is not defined in the PSM Act, a classification system is defined in s 3(1) of the PSM Act to mean a:
system relating either to an office, post or position or to an employee that provides a basis for the remuneration of employees by identifying the level which correctly reflects the functions and responsibilities of the office, post or position or of the employee;
104 Evidence has been given in these proceedings of four classification policies that apply to public service officers. The first three are Approved Procedure 1, Approved Procedure 2 and the Statutory Officers Policy. The fourth is a procedure that applies to public service officers who are employed in ministerial offices. This classification procedure applies to the class of employees who are public service officers seconded to a special office to assist a political office holder for a continuous period of two years. They have a statutory right to have their level of classification reviewed under s 75 of the PSM Act. This classification procedure is known as the RECAP process. This procedure did not apply to the appellant’s circumstances.
105 At the time the Statutory Officers Policy was made in July 2009, s 10(1)(a) of the PSM Act provided:
The functions of the Minister are — 
(a) to promote the overall effectiveness and efficiency of the Public Sector, having regard to the principles set out in section 7;
106 Section 10(2) of the PSM Act at that time also provided:
The Minister has power to do all things that are necessary or convenient to be done for or in connection with the performance of the functions of the Minister.
107 Under s 7 of the PSM Act the general principles of public administration and management were and continue to be as follows:
The principles of public administration and management to be observed in and in relation to the Public Sector are that — 
(a) the Public Sector is to be administered in a manner which emphasises the importance of service to the community;
(b) the Public Sector is to be so structured and organised as to achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities;
(c) public sector bodies are to be so structured and administered as to enable decisions to be made, and action taken, without excessive formality and with a minimum of delay;
(d) administrative responsibilities are to be clearly defined and authority is to be delegated sufficiently to ensure that those to whom responsibilities are assigned have adequate authority to deal expeditiously with questions that arise in the course of discharging those responsibilities;
(e) public sector bodies should have as their goal a continued improvement in the efficiency and effectiveness of their performance and should be administered with that goal always in view;
(f) resources are to be deployed so as to ensure their most efficient and effective use;
(g) proper standards of financial management and accounting are to be maintained at all times; and
(h) proper standards are to be maintained at all times in the creation, management, maintenance and retention of records.
108 The Public Sector Commissioner made the Statutory Officers Policy pursuant to s 10 of the PSM Act under a power of delegation from the Minister responsible for the administration of the PSM Act.
109 The power of the Minister under s 10 of the PSM Act was simply to make a classification system and procedure that relevantly in this matter provided a classification system that provides a basis for the remuneration of employees by identifying levels which reflect the functions and responsibilities of employees. Importantly, the respondent as a chief executive officer had the power to act under s 29(1)(h) of the PSM Act, to reclassify the appellant if the pre-conditions for the exercise of that power were met.
110 In May 2009, Mr Conran agreed to review the appellant’s classification as he was sympathetic to the appellant’s complaint that he (the appellant) had not been able to have a proper review of his classification on his return from the CCC to the public service. Mr Volaric intervened at that time and informed Mr Moore that DPC could be determining a policy matter that was the responsibility of the Public Sector Commissioner and any review by DPC would pre-empt the application of the proposed Statutory Officers Policy in respect of other public service officers returning from non-statutory bodies.
111 If the Statutory Officers Policy had been in place in 2006 when it was contemplated that the appellant was to return from the CCC to the public service, that policy would have applied to the appellant. However, that policy would have applied to him prior to his re-entry into the public service and at the relevant time, his chief executive officer would have been the chief executive officer of the CCC. While the Statutory Officers Policy was not in place in early 2007 when the appellant returned to the public service, the appellant had a statutory right of return under s 180(3) of the CCC Act. A process to facilitate that statutory right of return was not prescribed at that time. In early 2007, a sufficient assessment of the appellant’s skills and experience may not have been conducted by those that managed the appellant’s return to the public service. Whilst a contention to that effect has been put forward on behalf of the appellant, the Public Service Appeal Board in this matter has no power to review that process. It is not open in this matter to review the decision made in early 2007 to offer the appellant a position at DPC at level 7.3, as the Public Service Appeal Board can only review the ‘decision’ the subject of this appeal and that is the ‘decision’ purportedly made on 23 August 2010.
112 At law, the Statutory Officers Policy had no application to the appellant as the appellant had been returned to the public service in 2007 from the CCC. Consequently, at that time his right under s 180(3) of the CCC Act was complete when he accepted the position offered to him at DPC. Although he accepted that position under ‘duress’, he took no steps at that time to directly challenge that decision other than the issue was raised in a general way by the CSA in PSACR 27 of 2006 who did not litigate the specific issue whether the appellant should have been appointed to a higher level of classification than level 7.3 on his return to the public service. If it was intended to challenge the decision made at that time, it should have been directly raised as an issue for resolution in PSACR 27 of 2006. Consequently, irrespective of whether the appellant accepted the position at DPC under duress, that decision cannot now be considered as the time prescribed for challenging that decision has long expired: s 80J of the Act and reg 107(2) of the Industrial Relations Commission Regulations 2005 (WA).
113 When the Statutory Officers Policy came into operation in July 2009 it had no retrospective effect. In any event, by that time the policy did not apply to the appellant as he had returned to the public service in 2007 from the CCC. Consequently, s 180(3) of the CCC Act no longer applied to his circumstances in 2009 or 2010. However, the Public Sector Commissioner through Mr Volaric advised Mr Moore that the Public Sector Commissioner was prepared to review the appellant’s classification. It was agreed by the Public Sector Commissioner and the respondent to apply those parts of the Statutory Officers Policy that could have application to the appellant’s circumstances. Yet at law this policy had no application.
114 If the Statutory Officers Policy had no effect at law, the question arises whether when Mr Conran in May 2009 spoke to the appellant and offered to put in place a process to review the appellant’s classification could the review only be done in accordance with those classification systems and procedures that had been approved for public service officers? The other question is whether the only approved procedures that could apply to him were Approved Procedure 1 and Approved Procedure 2?
115 The respondent contends that no decision in relation to an interpretation of any provision of the PSM Act has been made by him as an employing authority on 23 August 2010 as the letter simply refers to the determination made by the Public Sector Commissioner on 16 April 2010. This was the evidence of the respondent and an expressly stated outcome of the Statutory Officers Policy. Clause 1 of the Statutory Officers Policy provides the terms and conditions of re-employment will be at the discretion of the Public Sector Commissioner and cl 4.5 provides the Public Sector Commissioner’s determination is final. In essence, the respondent’s argument is that ‘I made no decision as I had no power to make a decision about the classification of the appellant’.
116 As set out above, the Statutory Officers Policy had no determinative effect at law in respect of the appellant’s circumstances, because it only applies on its terms to re-employment of statutory officers to the public service. Thus, at the time of the application of the Statutory Officers Policy a statutory officer would have no employing authority other than the statutory office. The right the statutory officer would have is a right of return to the public service such as provided for in s 180(3) of the CCC Act. The policy does not apply to an employee who had in the past been a statutory officer who has been re-employed into the public service.
117 Pursuant to s 29(1)(h) of the PSM Act, it is the function of a chief executive officer to classify and determine the remuneration of employees and their offices, posts or positions in a department. This is not the function of the Public Sector Commissioner. Although the function is to be in ‘accordance with’ ‘such classification systems and procedures’, a classification procedure could not derogate from the express statutory function placed on a chief executive officer under s 29(1)(h) of the PSM Act to classify an employee and their office, post or position. To do so would raise a jurisdictional error. The grant of authority to make a ‘decision’ about the classification in accordance with a classification system and procedure vests solely in the chief executive officer. Whilst the grant of power given under s 29(1)(h) of the PSM Act is subject to the provisions of the PSM Act, and any other written law relating to the respondent’s department, there was no provision in the PSM Act prior to the coming into operation of pt 2 div 1 of the Public Sector Reform Act 2010 (WA) on 1 December 2010 that limited the exercise of that power by the chief executive officer other than to ensure compliance with approved classification systems and procedures. To the extent that s 29(1)(h)(ii) of the PSM Act requires a chief executive officer to classify an employee and their office, post or position and to vary any classification in accordance with such classification systems and procedures that are in place, there was no discretion vested in the chief executive officer to disregard the classification systems and procedures that applied to an employee or class of employee.
118 Despite the valiant submission made on behalf of the appellant about the power contained in s 29(1)(h) of the PSM Act, when the express words of that provision are analysed it is notable that the power vested in a chief executive officer under that provision is not to classify or vary the classification of an employee in the absence of the classification of his or her office, post or position. Section 29(1)(h) of the PSM Act empowers a chief executive officer to classify or vary the classification of employees and their offices, posts or positions. There appears to be no power to classify an employee in the absence of classifying his or her office, post or position. The opening words of s 29(1) of the PSM Act provides:
Subject to this Act and to any other written law relating to his or her department or organisation, the functions of a chief executive officer or chief employee are to manage that department or organisation, and in particular — 
119 Then the function of classification was set out in s 29(1)(h) of the PSM Act, as it stood prior to the coming into operation of the amendments to s 29(1)(h) of the PSM Act by the Public Sector Reform Act on 1 December 2010, and provided as follows:
to classify, and determine the remuneration of, employees in that department or organisation and their offices, posts or positions, and to vary any such classification or remuneration, in accordance with — 
(i) the requirements of any binding award, order or industrial agreement under the Industrial Relations Act 1979 employeremployee agreement under Part VID of the Industrial Relations Act 1979; and
(ii) such classification systems and procedures, if any, as are approved in respect of those employees or any class of those employees;
120 This power is to be contrasted with the power of an employing authority under s 36(1) of the PSM Act which provided at the relevant time:
(1) Subject to subsection (2), the employing authority of a department or organisation may, in relation to the department or organisation — 
(a) determine organisational structures and arrangements;
(b) create, transfer or abolish offices; and
(c) in accordance with approved procedures classify, or alter the classification of, offices other than offices included in the Special Division of the Public Service under section 38.
121 The power under s 29(1)(h) of the PSM Act was also different to the power in s 64(3) of the PSM Act which enables the appointment of a person as a public service officer as a permanent officer or for a fixed term without appointing a person to fill a vacancy in an office, post or position.
122 The appellant’s argument that the respondent had the power to review classification or vary the classification of the appellant, inherently relies upon a construction of s 29(1)(h) of the PSM Act that the respondent as a chief executive officer has the power to classify an employee in the absence of reviewing the classification of the office, post or position held by that officer. To read this provision in this way requires that the word ‘and’ when it first appears in that sub-section to be read disjunctively, rather than conjunctively. Justice Murray in Yougarla v Western Australia (1998) 146 FLR 128 explained the circumstances when ‘and’ should be interpreted disjunctively (143):
[W]here the process of statutory interpretation dictates that the proper construction of a provision requires it, the courts will, on occasions, if it can be done without undue violence, hold that the word ‘and’ is used in a section disjunctively, rather than conjunctively. The text Pearce & Geddes, Statutory Interpretation in Australia, 4th ed (1996) par 2.15, gives examples of the sorts of situations in which that may be done. The first is where the court is persuaded that the legislature meant to use the word ‘or’ but in fact used the word ‘and’. …
The second type of case where ‘and’ may be read as ‘or’ is where it may be argued to be used correctly to accumulate a series of cases or classes of case to which the operative part of a section is applied. To say that something may be done in cases 1, 2, 3 and 4 may, in the context, amount to the statement that the thing may be done in any one of those cases. That is more like the argument for the defendants in this case, but if that is to be done, it remains the case that it is a matter of ascertaining the correct construction of the section.
I accept that in that regard the construction which would promote the purpose or object underlying the enactment of the law will be preferred …
123 When regard is had to the subject matter, purpose, scope and of s 29(1)(h) s 36(1) and s 64(3) of the PSM Act the word ‘and’ as it first appears in s 29(1)(h) of the PSM Act is to be read conjunctively. This is also so when regard is had to the words of s 29(1)(h) of the PSM Act itself. The function is to classify employees and ‘their’ offices, posts and positions. The function is not to classify employees, offices, posts and positions in a department or organisation. The function of a chief executive officer to classify offices, posts and positions separate from the classification of an employee is found in s 36(1)(c) of the PSM Act. It is apparent, however, that the second ‘and’ in s 29(1)(h) of the PSM Act is to be read disjunctively as it allows the classification and the variation of the classification of employees and their offices, posts and positions.
124 The appellant’s argument that the respondent improperly delegated his power to classify the appellant under s 29(1)(h) of the PSM Act is in my respectful opinion flawed. The role of the Public Sector Commissioner under the Statutory Officers Policy could not involve the exercise of a power by the respondent under s 29(1)(h) of the PSM Act. This is because s 29(1)(h) of the PSM Act only applies to the classification of an employee in the department or organisation of the chief executive officer who employs the employee at the time the decision is made. The Statutory Officers Policy contemplates that the employee is to be re-employed in the public service and not in the statutory organisation, that is, the employee in question is to be employed in another organisation as a public service officer.
125 For these reasons, the respondent had no power to classify or vary the classification of the appellant through the application of the Statutory Officers Policy. However, the respondent had the power under s 29(1)(h) of the PSM Act to classify employees and their positions in his department, where the pre-conditions for the exercise of that power are met.
126 If it is accepted that at law the Public Sector Commissioner had no statutory power to classify the appellant in these circumstances, can it be said that the respondent made a decision on 23 August 2010 not to vary the classification of the appellant, through the application of the Statutory Officers Policy. Leaving aside the application of the Statutory Officers Policy at law, could it be said that by adopting the purported ‘decision’ of the Public Sector Commissioner to refuse to classify the appellant at level 9, the respondent made a decision to refuse to vary the classification of the appellant.
127 It is argued on behalf of the respondent that as a chief executive officer he could not classify the appellant as an officer beyond level 8, as s 29(1)(h) of the PSM Act required the classification or variation of a classification to be undertaken in accordance with approved procedures and Approved Procedure 1 and Approved Procedure 2 only permit chief executive officers to classify an employee to level 8 (exhibit F and exhibit L). The appellant says that Approved Procedure 1 has no application to his classification as Approved Procedure 1 only deals with the classification of offices and does not generally deal with the classification of officers except where an officer occupies an office that is reclassified.
128 The material provisions of Approved Procedure 1 at the time the appellant’s classification was considered in 2010 provided:
Introduction:
This Approved Procedure relates to the functions of Chief Executive Officers (CEOs) or other employing authorities as provided for in sections 29(1)(h)(ii), 36(1)(c), 41(a)(i), 44(3)(b), 53(3)(a) and 64(2)(a) of the Public Sector Management Act 1994 (PSM Act).

This Approved Procedure applies to those agencies forming part of the Public Service as defined in Part 3 section 34(a)-(c) of the PSM Act, as follows:
· departments;
· SES organisations, insofar as any posts in them, or persons employed in them, or both, belong to the Senior Executive Service; and
· agencies that employ persons under Part 3 of the PSM Act.

Objective:
To provide for a classification determination system and procedures which are in accordance with the principles set out in sections 7 and 8 of the PSM.

Definitions
Broadbanding:
A system of job classification that recognises the broad underlying similarities in work value that exist between jobs.

Job classification:
The assigned classification level allocated to a job according to the relative worth of that job in comparison with like positions.

Job evaluation:
The process of systematically and objectively assessing jobs to determine to what extent critical factors, such as skills, knowledge, competencies, etc, are required, and considering those factors provided in this procedure, so that a job is appropriately classified.

Job evaluation tool:
The job evaluation tool that is to be used for positions within the public service (with the exception of specified calling positions) is as follows:

Levels 1 – 8: BI/PERS is the approved job evaluation tool, unless otherwise determined by the Public Sector Commission (PSC).

Level 9 and above: as determined by the PSC.

Approved System And Procedures
Authority of CEOs (or other relevant employing authority):
In exercising their functions under section 29(1)(h)(ii) and section 36(1)(c) of the PSM Act, CEOs or other relevant employing authorities have the authority to determine the classification of jobs up to and including Level 8.

Authority of the Public
Sector Commission:
The PSC will assess and determine the classification of all Public Service jobs above Level 8, with the exception of positions the subject of a specified calling.

Employing authorities shall forward all proposals for the creation, variation and/or reclassification of positions and the payment of temporary special allowances above Level 8 to the PSC for assessment and endorsement.

SES jobs above Level 8 will be treated in accordance Approved Procedure 2.

Proposals must be prepared in accordance with, and satisfy, the requirements of the ‘Framework for Executive Classifications’.

Broadbanded
classification system:
The broadbanded classification system, incorporating Levels 1 to 9 and Class 1 to 4, is the approved classification system for the Public Service and must be retained unless an agency operates another classification system approved under section 3(2) of the PSM Act.

The classification system used by the Salaries and Allowances Tribunal (SAT) for the holders of offices in the Special Division of the Public Service is approved for use for CEO positions that have been removed from the SAT’s jurisdiction, provided the SAT determined classification at the time of removal is not varied.

Work value:

The classification of a job must be based on work value.

Factors in determining
classification:
Determination of the classification of a job shall have regard to the following factors:
· the value of the work performed;
· the responsibilities and skills required;
· comparisons of the work requirements of the job with jobs (internal and external) having similar duties, responsibility and skill requirements;
· the structural relationships of the jobs; and
· the indicative results of the approved job evaluation tool.

Industrial and workplace
agreements:
Industrial agreements and workplace agreements may provide for the supplementation or variation of the remuneration received by an officer, but cannot change the determined classification of a job.

Reclassification of jobs:
The classification of an existing job shall be altered only when the changed value of the work performed is significant and warrants the establishment of a new classification.

Reclassification of the
substantive holder of a
reclassified job:
Whilst noting that it is the job that is reclassified not an officer, CEOs or other relevant employing authorities may approve the reclassification of the substantive occupant of a job, subject to compliance with Clause 8(1)(b) and (c) of the PSM Act, and provided that the officer has been in the position and undertaking the higher level duties that warranted reclassification of the position, for a “continuous period” of 12 months. A continuous period, as referred to above, may include normal and/or reasonable periods of leave (i.e.: sick leave and annual leave).

129 Approved Procedure 2 provides for the classification of positions above level 8 by the Public Sector Commissioner. This procedure deals principally with the creation of positions in the SES.
130 It is common ground that the process outlined in Approved Procedure 1 and Approved Procedure 2 had no application to circumstances of the review of the appellant’s classification. Having reviewed the provisions of Approved Procedure 1 and Approved Procedure 2, I agree that neither of these procedures could have been applied to the appellant’s circumstances as both procedures only contemplate a classification review of a public service officer where the officer concerned is undertaking a position that has been reclassified. The appellant regrettably ‘occupies’ a position at level 7 on an unattached list. It is a position that is not attached to duties and thus is without work value. If no work value could be assessed then the appellant’s classification could not be reviewed under Approved Procedure 1. In addition, when Approved Procedure 1 and Approved Procedure 2 are read carefully it is clear that each of these procedures do not vest in the Public Sector Commission the decision to classify an employee to a level 8 and above, but simply vest in the Public Sector Commission the classification of positions above level 8.
131 The question then arises whether Approved Procedure 1 and Approved Procedure 2 constitute the only circumstances that the classification of the appellant could be reviewed. Outside the procedure set by Approved Procedure 1 and Approved Procedure 2 could the respondent classify the appellant at a higher level in the absence of assigning a higher classification to the position he is assigned to?
132 The classification system in Approved Procedure 1 and Approved Procedure 2 is broadbanding. Broadbanding creates levels of classification in the public service that carries with each level an obligation to carry out tasks that are broadly comparable from one job to another. Consequently, under Approved Procedure 1 it is the job or duties of an office, post or position that are classified and an occupant of a position can only attain a higher level of classification if they have performed the duties of a reclassified position for a specified period of time. This system enables mobility of public service officers and flexibility for their employing authorities.
133 Mr Conran as a chief executive officer and employing authority of the appellant cannot create an office outside Approved Procedure 1 and Approved Procedure 2: s 29(1)(h) and s 36 of the PSM Act. In my opinion, he also could not classify the appellant unless it was done so in accordance with those procedures, or any other approved classification system or procedure. Also, Approved Procedure 1 reflects the pre-condition in s 29(1)(h) of the PSM Act in that there is no capacity for a chief executive officer to classify an officer or vary the classification of an officer without varying the classification of their office, post or position.
134 If there were no approved classification systems or procedures in respect of employees who are public service officers or the class of employee to which the appellant belongs, then the respondent would have had an unfettered power under s 29(1)(h) of the PSM Act to determine the classification and the office, post or position of the appellant. As a public service officer the appellant is part of a class of employees that Approved Procedure 1 and Approved Procedure 2 apply. He was not, however, eligible for review of his classification under Approved Procedure 1 as he does not hold a position with work value. Nor could his classification be reviewed pursuant to Approved Procedure 2, as that procedure deals with the classification of positions in the SES.
135 Although the respondent and the Public Sector Commissioner agreed to review the classification of the appellant by applying the Statutory Officers Policy, they had no express power to do so and in doing so they acted in excess of jurisdiction. When this principle is accepted, the question whether the respondent made a ‘decision’ within the meaning of s 80I(1)(a) of the Act becomes immaterial, as the Public Service Appeal Board cannot ‘adjust’ a decision made by an employing authority when there was no power to make a decision that is sought to be reviewed.
136 In light of this finding, it is not necessary to deal with the merits of the appellant’s claim for classification at level 9. Notwithstanding this finding, given that the majority of the evidence and submissions made in this case went to the merits of the classification process, I intend to make some brief observations about the process that was followed and about the adequacy of the review of the appellant’s classification by the classification panel.
(b) The nature of the appeal
137 Whilst it is not strictly necessary to deal with the other jurisdictional arguments raised on behalf of the respondent, as the issues were comprehensively argued, I make the following brief observations.
I do not agree this appeal raises a matter in relation to the interpretation of any provision of the PSM Act concerning the salary of the appellant as a condition of service, within the meaning of s 80I(1)(a) of the Act. Firstly, s 80I(1)(a) provides the Board with jurisdiction to hear and determine a matter that is:
(a) against a decision of an employing authority;
(b) in relation to an interpretation of any provision of the PSM Act, concerning the conditions of service (other than salaries and allowances) of public service officers.
The decision must be in relation to an interpretation of a provision of the PSM Act concerning conditions of service. In this matter, the appeal is in relation to s 29(1)(h) of the PSM Act which is a provision empowering a chief executive officer to classify or vary the classification or remuneration of an employee and their offices, posts or positions. What is squarely raised is the interpretation of the power to classify or vary the classification of the appellant. This appeal is not in substance about what salary that is to attach to his classification. Whilst, the consequence of a change in classification often carries with it a change in salary, it does not necessarily follow that will occur. For example, a position may be reclassified to a lower level, but the salary of the holder of the position may be maintained at the higher level by salary maintenance.
138 Whilst the appeal is about the appellant’s classification, it also raises an interpretation of the power of a chief executive officer to classify or vary the classification of all public service officers and their offices, posts or positions pursuant to s 29(1)(h) of the PSM Act.
139 Also, whilst the appeal also concerns the application of s 180 of the CCC Act and a review of the merits of the appellant’s claim for classification at level 9, that does not mean that the Public Service Appeal Board does not have jurisdiction to hear and determine this appeal. Jurisdiction under s 80I(1)(a) of the Act, is conferred in respect of an appeal ‘in relation to’ an interpretation of any provision of the PSM Act, concerning conditions of service (other than salaries and allowances) of public service officers. The jurisdiction conferred by this provision is not declaratory. This is reflected by the power in s 80I(1) to adjust all such matters as referred to in paragraph (a) of s 80I(1). The use of the words ‘in relation to’ confers on the Board a wide power to hear and determine an appeal against a defined decision: the prepositional phrase ‘in relation to’ is indefinite. Subject to any contrary indication derived from its context or history it requires no more than a relationship, whether direct or indirect between two subject matters: O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 356 (McHugh J). The power to review under s 80I(1)(a) is not to simply consider whether the decision is to be adjusted on grounds that solely raise an issue of interpretation. For jurisdiction to lie under s 80I(1)(a) there must simply be a real and not hypothetical relationship between an issue raised in the decision that is a question of an interpretation of a provision of the PSM Act and the conditions of service (other than salaries and allowances) of public service officers. The requirement for a connection is also raised specifically by the use of the word ‘concerning’ in s 80I(1)(a). In this appeal, the facts disclose there is a connection between the purported ‘decision’ not to classify and a question of interpretation whether the respondent as a chief executive officer acting under s 29(1)(h) of the PSM Act has the power to classify the appellant or any other public service officer through the application of the Statutory Officers Policy.
140 As this appeal is not about the salary or title allocated to the office occupied by the appellant, the jurisdiction of the Public Service Arbitrator in s 80E(2)(a) of the Act is not raised, as s 80E(2)(a) deals with a claim for salary that attaches to an office, not the salary that attaches to person as a personal classification. In Director General of Health v Health Services Union of Western Australia (Union of Workers) [2011] WAIRC 00332; (2011) 91 WAIG 865, I made the following observation as obiter dicta [83]:
Section 80E(2) of the Act makes it clear the jurisdiction under s 80E(2)(a) of the Act includes jurisdiction to deal with a claim in respect of the salary or range of salary allocated to an office occupied by a government officer. However, it is apparent that s 80E(2)(a) of the Act is not concerned with the salary that attaches to the person who holds an office but to the office. Section 80E(1)(a) of the Act contains a distinction between what may be colloquially described as a job (an office) and the person who holds that job (an officer). This distinction is found not only in s 80E(1)(a) of the Act but in other provisions of the Act and the Public Sector Management Act 1984 (WA): (see, for example, s 80I(1)(b) and s 80I(1)(c) of the Act).
141 For these reasons, I am of the opinion that these jurisdictional issues are not made out.
The classification process
(a) Veracity of the evidence given by the witnesses
142 Whilst there are some differences in the recollection of the appellant, Mr Moore and Mr Conran as to some parts of the conversation the appellant had with Mr Conran at the meeting on 6 May 2009, these differences in recollection are minor and are not material to the determination of this appeal.
143 I generally found the evidence given by the appellant to be reliable as the majority of his evidence is set out in various emails, letters and other documents which contemporaneously record relevant matters and issues raised by him. I do not, however, accept his evidence that when he met with the assessment panel on 25 February 2010, he was told by the panel members that they knew nothing about his application and they had not read it. This evidence is contrary to the evidence given by Mr Pittock, Ms Andrews and Mr Mercadante. Mr Pittock gave evidence that they told the appellant they had read his application but had not commenced the assessment process. Mr Mercadante said that he told the appellant that they had yet to commence the assessment process which would commence following his address to the panel. Ms Andrews met with the appellant on two occasions prior to the meeting with the panel. She also engaged in a number of email conversations with the appellant about his submission and had asked him for a more detailed version of his CV. In addition, Ms Andrew’s evidence that she had read the appellant’s application prior to the panel meeting with the appellant, is supported by an email attached to her witness statement which was sent to the appellant on 30 November 2009, in which she said in response to an email from the appellant asking if the information he had provided was sufficiently detailed: ‘your submission looks ok to me but it will be up to the panel to review and ask for further information if they need it’ (exhibit D, KA 05). For these reasons, I prefer the evidence given by Mr Pittock, Ms Andrews and Mr Mercadante to the evidence of the appellant on this issue. Notwithstanding this finding, for reasons that follow, it seems Ms Andrews’ analysis of the appellant’s submission may not have been more than cursory.
144 Having considered the evidence given by each of the panel members, it is clear that each member of the panel has extensive experience in the classification of offices, posts and positions. Although the classification of an individual office holder as a personal classification is an exercise that does not arise very often because of the structure of the classification systems that prevails in the public service and in the wide public sector, the exercise of assessing a personal classification in this matter required an assessment of historically available offices, posts and positions which is a substantial part of the process contemplated in the Statutory Officers Policy. Consequently, I am satisfied that each of the members of the classification panel were qualified to undertake the task of assessing an appropriate classification of the appellant.
145 The only real issue raised about the credibility of the evidence given by Mr Volaric was about a document prepared in response to a request made under the Freedom of Information Act 1992 (WA) to the Public Service Commissioner (the FOI request). A schedule was prepared by Mr Volaric in response to the FOI request that listed five draft panel assessment reports one of which was Item 6 – ‘Review panel draft CCC’ (exhibit 1 – GJR 62). It was argued on behalf of the appellant that an inference could be drawn from the schedule that a copy of a draft of the panel’s report was sent to the CCC. This inference, however, is contrary to the evidence given by Mr Volaric who testified that immediately prior to giving evidence he had reviewed the FOI request file and found that the description given to Item 6 in the schedule was incorrect and misleading as the document sent to the CCC was in fact a copy of a draft of the Statutory Officers Policy (ts 140). When the appellant’s counsel called for the document that had been sent to the CCC to be produced to the Board, Mr Volaric stated he had no object to the production of the document. However, counsel for the appellant did not pursue the production of the document. In these circumstances, it is not open to the appellant to pursue the drawing of an inference that Mr Volaric’s explanation was not credible. In any event, there is no evidence before the Board that the report of the panel did not accurately reflect the recommendation of the panel and the matters they say they considered.
(b) Was the process procedurally fair through the involvement of Mr Volaric?
146 If the decision made by the respondent on 23 August 2010 was reviewable as a decision made under s 80I(1)(a) of the Act, it would be necessary to consider whether there was an apprehension of bias that affected the decision made by the respondent through the involvement of Mr Volaric.
147 In the Judicial Review of Administrative Action (4th ed, 2009) the learned authors, Aronson, Dyer and Groves, point out the importance of appearances is a central principle of our legal system that the law be applied and executed without fear, favour or prejudice. In particular, they aptly observe [9.05]:
Neutrality, and the public and political confidence which that engenders, are regarded as essential to the successful and proper operations of the public service, the tribunal system and the judiciary. There are several reasons for this, which may be broken down broadly into those which are instrumental, and those which are not. Neutrality serves the instrumental goals of promoting accuracy of fact finding, and of enhancing the quality of policy formulation and of policy application. People adversely affected by a decision are also more likely to accept it if they entertain no doubts as to its maker’s neutrality. Neutrality, therefore, helps reduce enforcement costs in the decision-making process. The bias rule also serves the non-instrumental values of treating the parties with equal respect and dignity, promoting the public’s participation in decision-making processes which affect them individually, and enhancing the institutional legitimacy of the relevant government agencies. (footnotes omitted)
148 Impartiality is required of not only of a decision-maker but the process by which he or she makes that determination. The test for apprehended bias is satisfied where the circumstance would give a fair minded person a reasonable apprehension or suspicion that a decision-maker is not impartial or has prejudiced a matter. The question is one of possibility (real and not remote): Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 [7], (Gleeson CJ, McHugh, Gummow and Hayne JJ). This requires a connection between the source of the alleged bias and the resulting apprehension of bias in the decision.
149 It is argued by the appellant the decision-maker was the respondent. It is also argued that the source of the alleged bias was the input of Mr Volaric into the decision-making process. For a an inference to be drawn that there was a real possibility the respondent as the decision-maker was not impartial or has prejudiced the matter, there must be evidence that there was a degree of influence exerted by Mr Volaric on the decision-maker. A similar issue was raised in Hot Holdings Pty Ltd v Creasy [2002] HCA 51; (2002) 210 CLR 438. In that matter two public service officers who prepared a draft minute reflecting a warden’s recommendation designed to assist the Minister to decide the award of a mining licence could have been said to have an interest in the outcome of the application. One officer owned shares in a company that had an interest in the licence if granted and the other had a son who owned shares in the same company. The evidence disclosed that the two officers had taken part in the process at the periphery of giving advice to the Minister. However, after the draft minute was prepared they played no further part in forming the decision and the document underwent considerable change before it went to the Director-General of the department. It was also material that the final document that went to the Minister simply contained a recommendation. After considering these facts, the majority of the High Court rejected the claim that there was a reasonable apprehension of bias in the decision of the Minister. As McHugh J relevantly pointed out [72]:
A court will not conclude that there was a reasonable apprehension of bias merely because a person with an interest in the decision played a part in advising the decision-maker. The focus must be on the nature of the adviser's interest, the part that person played in the decision-making process and the degree of independence observed by the decision-maker in making the decision. If there is a real and not a remote possibility that a Minister has not brought an independent mind to making his or her decision, the role and interest in the outcome of his or her officers may result in a finding of reasonable apprehension of bias. It would do so in the present case, for example, if either Mr Phillips or Mr Miasi were biased or their circumstances gave rise to an apprehension of bias and either of them had influenced the Minister's decision. Thus, the role played by an adviser is a critical factor in determining whether the interest of an adviser in the outcome of a decision taints the decision with bias or a reasonable apprehension of bias.
150 In this case, the part that Mr Volaric played was also peripheral. He facilitated the convening of a panel to assess the appellant’s classification and suggested to Mr Pittock that he undertake research of the availability of level 9 positions. After the panel made its assessment he made enquiries of Mr Pittock of how the decision was reached by the panel and he made some grammatical and style changes to the panel’s report that went to the Public Sector Commissioner. There is, however, no evidence that he asserted any influence over the panel members or had any input into the recommendation they made to the Public Sector Commissioner. The evidence at the highest is that Mr Volaric would have intervened to influence the decision of the assessment panel if he disagreed with the recommendation the panel had put forward. Nor is there any reliable evidence before the Board that a draft of the panel report was sent to the CCC.
151 There is also no evidence that Mr Volaric asserted any influence over the Public Sector Commissioner or the respondent. The only evidence before the Board is that the Public Sector Commissioner considered the recommendation made by the panel and accepted that recommendation. In turn the respondent accepted the Public Sector Commissioner’s view. In these circumstances, a claim of bias on the part of the decision-maker cannot be made out.
(c) Did the classification process adequately review all relevant matters?
152 Firstly, it is not open for the appellant to criticise the review panel for not considering level 8 positions. The appellant made it very clear to the panel that he was seeking to be classified at level 9 or above.
153 Secondly, it matters not whether the review panel considered they embarked on an exercise to review the appellant’s classification or to vary his classification as the appellant held the classification of level 7.3 in the public service prior to his appointment to the CCC. Also at the time of the review in 2010 he held that level of classification.
154 A decision had been made to afford the appellant an opportunity to review his classification in accordance with the Statutory Officers Policy. Clearly if his classification was to be reviewed it was the only policy that could have been used to review the appellant’s classification, as it reflects the provisions of s 180(3) of the CCC Act and the findings made by Commissioner Scott. The only basis the appellant could rely upon to have his classification reviewed was through the operation of s 180(3) of the CCC Act. This review was carried out in the sense of what could otherwise be described as voluntary, as there is no obligation at law on the Public Sector Commissioner or the respondent to provide a review of the appellant’s classification. However, having embarked upon the review, the review should have been conducted so far as possible in accordance with the Statutory Officers Policy.
155 As the assessment essentially arose out of the application of s 180(3) of the CCC Act, the only basis on which the appellant’s classification could have been assessed is through the application of the Statutory Officers Policy which accurately reflects the following matters that Commissioner Scott in her supplementary reasons in PSACR 27 of 2006 ((2008) 88 WAIG 662 [23]) said should be objectively assessed:
(a) The availability of positions within the public service at the equivalent level of classification and above as the officer occupied immediately prior to appointment under s 179 of the CCC Act;
(b) The nature of those positions;
(c) The experience, skills and qualifications required of those positions and the experience, skills and qualifications of the officer concerned.
156 In this matter an objective assessment of the appellant’s circumstances required an assessment of the duties carried out and skills acquired by the appellant in the positions he held prior to his appointment to the CCC and at the CCC. One matter of importance is that he had not carried out the duties of any level 9 position in Western Australia prior to his appointment at the CCC. Also his work post the CCC would only be relevant if the duties of the work carried out by him at ECU involved him acquiring skills, experience or qualifications at a level higher than he substantively held at level 7 and where those skills, experience or qualifications could be utilised in positions that were historically or currently available in the public service at the level sought by him.
157 As Commissioner Scott relevantly observed in her first reasons for decision given on 20 March 2008 that if an officer developed special skills or experience at a much higher level at the CCC, but there are no positions at all or no positions available, which match those particular higher level skills and experience, one would not expect the officer to be appointed to a position at the higher level ((2008) 88 WAIG 265 [67]).
158 Whilst I agree with the submission made on behalf of the respondent that the members of the panel were more than qualified to undertake the task of reviewing the appellant’s classification, Ms Andrews’ recollection of the process applied by the panel was vague and in part, unsatisfactory. It seems she did not properly engage in a discussion with the appellant in any meaningful way as to what was required in a proper assessment of his classification. Nor does it seem that she made anything other than a cursory pre-assessment. Prior to the appellant’s submission being forwarded to the Public Sector Commissioner’s office, it was her role to assess the appellant’s submission and to advise him whether any further information should be provided or whether the submission adequately addressed the issues the panel was to consider. In the appellant’s submission he gave the name of his supervisor at the CCC as a referee. If Ms Andrews had reviewed the appellant’s submission properly she would have been aware that the person named had been the appellant’s supervisor. Although the assessment panel took the view that it would assume the appellant had continuously performed the full duties and responsibilities of the higher level positions at the CCC, the fact that Ms Andrews did not take any steps to examine the identity of this person named in the referee list shows that she did not pay sufficient attention to the matters set out in his submission. This information may have been of assistance, as the first dot point in cl 4.3 of the Statutory Officers Policy requires a preliminary analysis of an application prior to consideration of a panel. It is contemplated in that paragraph that an initial assessment was to be undertaken by officers of the Public Sector Commission and the assessment may involve interviews with an applicant and his or her statutory office supervisor. Whilst the policy provides this analysis is to be carried out by officers of the Public Sector Commission, Ms Andrews conducted the pre-assessment of the adequacy of the appellant’s submission.
159 The pivotal task that was to be undertaken by the assessment panel was to analyse the work undertaken by the appellant at the CCC, prior to the CCC and to assess the availability of vacant positions within the public service in a reasonably historical period. Available positions are those that the appellant had the skills and relevant current experience to perform. This task is inherent in the declaration made by Commissioner Scott and is provided for in cl 3 and cl 4.3 of the Statutory Officers Policy. Under cl 4.3, making an analysis of the availability of level 9 positions in the public service was a task to be undertaken by Mr Pittock as an officer of the DPC. As required by the policy, he generated a historical list of available level 9 positions that had been vacant. Unfortunately he did not retain a copy of that list. This has not enabled any independent review of whether the list contained any level 9 positions which could be said to be ‘available’ within the meaning of the Statutory Officers Policy, nor to allow an assessment of whether the panel applied a proper process of assessment. As Mr Volaric properly pointed out, that list should have been retained to be considered in the event of a request for a review of the decision.
160 In addition, the list of positions considered by the panel should have been disclosed to the appellant. In the making of administrative decisions which affect rights, interests and legitimate expectations, there is a duty to act fairly, in the sense of according procedural fairness: Kioa v West (1985) 159 CLR 550 (584) (Mason J); (609 - 611) (Brennan J). Procedural fairness requires that adverse information that is credible, relevant and significant to the decision should be disclosed to a party whose interest might be adversely affected by the exercise of power: Kioa (629) (Brennan J). Credible, relevant and significant information is information that cannot be dismissed from further consideration by the decision-maker before making the decision: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 [17] (the Court).
161 In the report of the panel accepted by the Public Sector Commissioner the panel assessed the placement options for the appellant at level 9 as low. This finding was based, at least in part, by a review of a historical list of positions generated by Mr Pittock. It is clear from the evidence given by Mr Pittock and Mr Mercadante that they gave significant weight to the information contained in the list. Where credible, relevant and significant information is to be relied upon by an administrative decision-maker, that information, or the substance of that information should be disclosed to the person whose interest might be affected and give him an opportunity to respond to the information prior to making a decision: Applicant VEAL of 2002 [18] – [19] (the Court).
162 If the information contained in the list was publicly available on the Jobs Board internet site (jobs.wa.gov.au) the panel should have informed the appellant that:
(a) it intended to review all level 9 positions within a specified period;
(b) that he could access the information that they intended to consider through that website; and
(c) if he wished to do so he could make a submission to the panel about any of the vacant positions that were currently available or had been available in the nominated historical period.
163 The task of assessing available level 9 positions did not, however, lie solely with the members of the assessment panel, it also lay with the appellant. It should have been clear to the appellant from the reasons for decision of Commissioner Scott in (2008) 88 WAIG 281 [67] that what was meant by ‘available positions’ were positions that had been recently vacant or currently vacant that required the skills or experience he had gained or utilised at the CCC. In the Statutory Officers Policy this is referred to in cl 3(c) as the transferability of skills, experience and qualifications. Pursuant to cl 4.2 of the Statutory Officers Policy he was required in his submission to address matters that may affect the assessment of the value of work undertaken at the CCC in relation to comparable classified public service positions. The appellant did not do that. His submission contained little information about the value of work carried out by him at the CCC in the Class 1 and level 9 positions. An assessment of work value requires an analysis of scope and complexity of duties performed and reporting relationships. Where the work performed is at senior level such as level 9 or above, an analysis of management duties and skills, policy development and delivery of strategic planning attained in the positions should also be analysed. Nor did his submission contain any analysis of the work he performed at the CCC in relation to any available level 9 positions. The appellant put forward four generic prison superintendent positions and one director of corporate services position. However, he did not put forward to the panel any assessment of the duties, skills and requirements of these positions by relating the requirements set out in the two JDFs of these positions to the skills, experience and qualifications he had obtained whilst performing the higher level of work at the CCC. Nor did he put forward any analysis of his work at ECU that directly related to the requirements of those JDFs. Unfortunately the appellant formed the view that such an assessment was not necessary as he was of the opinion that all that was required was an assessment of his skills, experience and qualifications and that Commissioner Scott’s order had the effect that there was no requirement to compare his former positions with any other position in the public service. It is also unfortunate that when the appellant conveyed this opinion to Ms Andrews in a covering letter addressed to the respondent dated 9 November 2009 and in an email to her on 27 December 2009, that Ms Andrews did not take any steps to inform the appellant that his opinion was incorrect. She simply told him in an email on 29 December 2009 that the Statutory Officers Policy was being used as a guide. The appellant also laboured under a false presumption that prima facie he was entitled to a level 9 classification because he had been performing duties at level 9 or better.
164 In making the required assessment, except for making contact with the appellant’s supervisor at the CCC, I agree in this matter it was not necessary to speak to any of the appellant’s referees. I do, however, agree that the Statutory Officers Policy contemplates that the appellant’s ‘home agency’ would have been the agency he was employed in prior to his employment at the CCC and not DPC.
165 For these reasons, I am of the opinion that the process adopted by the assessment panel was procedurally unfair as the historical list of positions relied upon by the panel to make their assessment was not disclosed to the appellant. I am also of the opinion that the appellant’s submission was, in any event, deficient as it contained little information which could be relied upon to assess the transferability of the appellant’s skills to the level 9 positions nominated by him as positions he says he was qualified to hold.
Conclusion
166 Whilst I have found the process adopted in the review of the classification of the appellant to be procedurally unfair, as the review undertaken was voluntary in the sense that there was no power or right vested in the appellant at law to require the respondent to review his classification, or any power or duty vested in the respondent to classify or vary the classification of the appellant, I am of the opinion that the appeal must be dismissed.
167 At the heart of the appellant’s appeal is the level of classification afforded to him on his return to the public service from the CCC. Yet the time for challenging the level of classification provided to the appellant on his return to the public service pursuant to s 180(3) of the CCC Act was when the level 7.3 position was offered to him or taken up by him in early 2007. Unfortunately that decision was not directly challenged by the appellant or the organisation that represented him at that time. As a consequence the appellant cannot now seek to have that decision reviewed.
168 For these reasons, I am of the opinion that an order should be made to dismiss the appeal.
MR B DODDS:
169 I have read a draft of the reasons for decision of Smith AP. I agree with those reasons and the order proposed.
MR K CHINNERY:
170 I have read a draft of the reasons for decision of Smith AP. I agree with those reasons and the order proposed.