REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00882

DELIVERED : WEDNESDAY, 16 November 2016

FILE NO. : APPL 33 OF 2016

Applicant

AND

Department of Commerce

Respondent

Catchwords : Industrial Law (WA) - Referral to Commission under Public Sector Management Act 1994 - Voluntary redundancy - Dispute over attraction and retention incentive payment - Whether Regulations fairly and properly applied - Whether Commission has jurisdiction - Principles applied - For a referral to the Commission under s 95(2)(b) to be valid, the person aggrieved by the decision must be in an extant employment relationship with their employer as at the time of the referral - Contractual benefits claim - All industrial matters in connection with a "government officer" fall exclusively within the jurisdiction of the Arbitrator - Application dismissed for want of jurisdiction

Legislation : Industrial Relations Act 1979 (WA) ss 23, 80C(1), 80E(1), 80E(7)

  Public Sector Management Act 1994 (WA) ss 3, 94(1A), 95A, 95, 95(2)(b), 96A(2)(b)

  Public Sector (Redeployment and Redundancy) Regulations 2014 (WA)     

Result : Application dismissed for want of prosecution

Representation:

Counsel:

Applicant : In person of counsel

Respondent : Mr R Bathurst of counsel

Case(s) referred to in reasons:

Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward (2008) 88 WAIG 156

Reasons for Decision

Brief factual background

1         The applicant Mr Crowley was employed by the respondent, the Department of Commerce, as its General Counsel in the Office of the Director General.  Mr Crowley took up that position in about mid-June 2011.  Not long after that on 5 July 2011, Mr Crowley started acting in the position of General Counsel, Consumer Protection Division within the Department.  Both positions were specified callings Level 7.

2         The situation developed in about early February 2016 when Mr Crowley expressed an interest in taking a voluntary redundancy.  It had been determined that his substantive position of General Counsel in the Office of the Director General was to be made redundant.  It seems that in about March 2016 some discussions took place between the parties in relation to the content of his severance package.  Mr Crowley expressed the view that it should include an attraction and retention incentive payment that he had been receiving in his acting position.  Representatives of the Department considered this request and took the view that the incentive payment was not to be included in Mr Crowley’s severance package.  In view of this Mr Crowley was asked whether he wished to proceed with a voluntary severance to which he responded that he did.

3         Events proceeded and in April 2016 correspondence was prepared reflecting Mr Crowley’s voluntary severance offer which was accepted by him in writing on 11 May 2016.  It was a condition of Mr Crowley’s acceptance of the voluntary severance that he resign from his employment with the Department which he did, effective on 17 May 2016.

4         An issue has arisen now between the parties in relation to the attraction and retention payment.  Mr Crowley claims that this payment, and the manner in which he was informed as to his severance package, was not in accordance with the Public Sector (Redeployment and Redundancy) Regulations 2014 (WA) and the Regulations have not been fairly or properly applied.  Mr Crowley maintains that the failure to include the attraction and retention incentive payment in his severance package is a matter that may be referred to the Commission under s 95(2)(b) of the Public Sector Management Act 1994 (WA).  Additionally, by his amended application, Mr Crowley also maintains that he has been denied a contractual benefit under s 29(1)(b)(ii) of the Industrial Relations Act 1979 (WA) in the form of his incentive payment in the sum of $22,330.64 and he has claimed accordingly. 

5         The Department objected to and opposed Mr Crowley’s claim on a number of bases.  First and foremost, it maintained that the Commission has no jurisdiction to entertain Mr Crowley’s claim referred to the Commission under s 95(2)(b) because at the time of the referral, Mr Crowley was not an employee, he having resigned effective 17 May 2016.  The referral to the Commission was filed with the Registry on 23 June 2016. Secondly, the Department maintained that Mr Crowley’s contractual benefits claim, if that is what it is, must fail too. This was because, as a government officer at the material time, as defined in s 80C(1) of the Act, any such claim, if maintainable, can only proceed before the Public Service Arbitrator constituted under Part IIA of the Act. As the Arbitrator’s jurisdiction in relation to industrial matters relating to a government officer is exclusive of the jurisdiction of the Commission, then this claim was unable to be dealt with by the Commission. 

6         The factual background to the present dispute is not contested and was set out in the affidavit of Ms Bendotti, the Acting Manager Human Resources Service Delivery of the Department. Ms Bendotti confirmed in her evidence that the issue of the inclusion of the attraction and incentive payment was a matter of difference between Mr Crowley and the Department.  However, she also confirmed that in an email to Mr Crowley, he was informed that the Department would be calculating his voluntary severance payment to him, excluding the attraction and retention incentive payment. Notwithstanding this, Ms Bendotti said that Mr Crowley wished to proceed with the voluntary severance process.

7         A number of documents were annexed to Ms Bendotti’s affidavit. The most significant of which was annexure MB4, that being a letter of 1 April 2016 to Mr Crowley from the Acting Director General of the Department. In this letter a formal offer of voluntary severance was made to Mr Crowley. In accordance with the terms of the Regulations, a calculation of the severance payout due to him was made.  The final figure to be paid out was stated in the letter to be dependent on Mr Crowley’s date of acceptance of the voluntary severance and the effective date of his resignation. Mr Crowley signed the letter of offer on 11 May 2016 and elected his resignation date as being 17 May 2016. Mr Crowley’s employment came to an end on that date.

8         I find accordingly.

Jurisdiction – PSM Act claim

9         Sections 95(2)(b) and 96A(2)(b) of the PSM Act provide a right of referral to the Commission on limited grounds, to employees and former employees aggrieved by decisions taken by their employer in relation to redeployment and redundancy matters dealt with under the Regulations. In the case of a referral under s 96A(2)(b) this jurisdiction only extends to employees who have been “registered” under the Regulations, as that is defined in s 94(1A) of the PSM Act. It was common ground that Mr Crowley was not a registered employee and therefore, s 96A has no application to the circumstances of the present case.

10      Section 95 of the PSM Act relevantly provides as follows:

95. Jurisdiction of Industrial Commission in relation to section 94 decision

(1) In this section —

 section 94 decision means a decision made or purported to be made under regulations referred to in section 94 (other than a decision which is a lawful order by virtue of section 94(4)).

 (2) A section 94 decision may be referred to the Industrial Commission —

(a) under the Industrial Relations Act 1979 section 29(1)(a); or

(b) by an employee aggrieved by the decision,

  as if it were an industrial matter that could be so referred under that Act.

(3) A referral under subsection (2) must be made within the period after the making of the decision that is prescribed under section 108.

(4) The Industrial Relations Act 1979 applies to and in relation to a section 94 decision referred under subsection (2) as if the decision were an industrial matter referred to the Industrial Commission in accordance with that Act.

(5) In exercising its jurisdiction in relation to a decision referred under subsection (2), the Industrial Commission must confine itself to determining whether or not regulations referred to in section 94 have been fairly and properly applied to or in relation to the employee concerned.

(6) The Industrial Commission does not have jurisdiction in respect of a section 94 decision if the employment of the employee concerned is terminated.

11      Additionally, the relevant provisions of the Regulations in relation to voluntary severance are set out in Part 3.  For reasons which will become apparent shortly, it is not necessary for me to set them out or to deal with them in any detail.

12      As to its jurisdictional challenge, the Department submitted that a “section 94 decision” is one made or purported to be made under the Regulations. For the purposes of a referral to the Commission, such a decision may be referred under s 95(2) by an employee who is aggrieved by the relevant decision.  However, the Department contended that the terms of s 95(6) make it clear that for the Commission to have jurisdiction to deal with a referral to it of a section 94 decision, the employee’s employment must not have terminated. In this case, Mr Crowley’s employment terminated on 17 May 2016, as a result of his resignation effective from that date. In this connection, the Department contended that for the purposes of s 95(2)(b) of the PSM Act, the reference to “employee” being aggrieved by a decision at the time of the referral to the Commission, means one in the present tense, as a person who is employed as at the time of the referral.

13      Furthermore, and in any event, the Department further submitted that as reg 44 of the Regulations prescribes a period of 21 days as the period within which a referral to the Commission must be made after the making of a decision, as set out in s 95(3) of the PSM Act, Mr Crowley’s application was out of time. The Department contended that the relevant date of the section 94 decision for the purposes of the referral to the Commission, was 1 April 2016, being the date on which Mr Crowley was made an offer of voluntary severance.  Accordingly, the Department contended that the referral to the Commission should have been made by no later than 22 April 2016. 

14      In reply Mr Crowley made a number of submissions. First and foremost, he contended that having regard to Parts 3 and 6 of the Regulations, a resignation as a part of a voluntary severance process, is not a termination of employment as provided in Part 6. The upshot of Mr Crowley’s lengthy and careful written submission in relation to this issue, was that for the purposes of s 95(6) of the PSM Act, reference to “terminated” does not include a circumstance where an employee accepts a voluntary severance arrangement under Part 3 of the Regulations and resigns. Given the structure and operation of the voluntary severance process set out in the Regulations, Mr Crowley contended that if the Department’s submissions are correct, in his circumstances, he effectively has no remedy to challenge whether or not the relevant regulations have been fairly and properly applied, at least within the 21-day time limit prescribed by s 95(3) of the PSM Act and reg 44 of the Regulations. 

15      Mr Crowley further set out in his written submissions, an analysis of the respective parts of the Regulations, in support of his primary contention that the concepts of “resign” or “resignation” are different to the concept of “termination”. Thus Mr Crowley contended that the fact that he tendered a resignation as a part of the voluntary severance process, was, when read with the relevant parts of the Regulations, no barrier to him referring the present matter to the Commission for hearing and determination.

16      It was uncontroversial that Mr Crowley was no longer an employee of the Department at the time of the referral of his claim to the Commission.  No claim was made by Mr Crowley under s 96A(2) of the PSM Act. The claim turns solely on the application of s 95 in respect of a “section 94 decision”.  The terms of s 95 have been set out above. The key provisions for present purposes are ss 95(2) and (6). In s 95(2)(b), the referral of a section 94 decision may be made by “an employee aggrieved by the decision”. For the purposes of the PSM Act, “employee” in s 3 is defined as “employee means a person employed in the Public Sector by or under an employing authority;”.

17      In contrast, in s 96A(2)(b), dealing with a referral to the Commission, in relation to a decision made or purported to be made under regulations referred to in s 95A, the relevant reference is made to “an employee or former employee” aggrieved by the decision. There is nothing to suggest that the reference to “employee” in both s 95(2)(b) and 96A(2)(b) means other than a person who is employed under an extant contract of employment, as the definition of “employee” in s 3 of the PSM Act appears to make plain. This interpretation of the meaning of “employee” seems to be confirmed by the terms of s 95(6), which provides that the Commission does not have jurisdiction in relation to a section 94 decision, “if the employment of the employee is terminated”.

18      In my view this provision applies equally irrespective of whether an employee’s employment is terminated at the initiative of the employer or the employee.  I do not accept the arguments made by Mr Crowley that the application of the provisions of the Regulations, in the case of a voluntary severance, and a resignation, should be construed as something other than the termination of an employee’s employment for these purposes. There is nothing to suggest in the drafting of s 95(6) that it is predicated on a “dismissal”, in the sense of a termination at the initiative of an employer.

19      For example, the Regulations themselves in Part 6, contemplate termination of employment on different bases. In the ordinary course, in the case of a “registered employee” who is subject to a “redeployment period” as defined in reg 28, their employment is terminated by operation of law as prescribed by reg 30.  On the other hand, as a part of this process, an employee may request, and the employer may agree, to terminate the employee’s employment earlier than the end of the “redeployment period”, which under reg 32(2), would plainly be a termination of employment by the employer. In either case, for the avoidance of doubt, s 95A(3) of the PSM Act provides that the contract of employment also comes to an end at the same time.  The use of the same words “is terminated” in both ss 95A(2) and (3), is a further indication that these words are not to be read down or given a narrow construction in s 95(6).

20      Furthermore, the draftsperson of ss 95(2)(b) and 96A(2)(b) has clearly sought to draw a distinction between a person engaged under an extant contract of employment and a person whose contract of employment has been terminated.  The reference to “former employee” in s 96A(2)(b) is a clear indication that the draftsperson of both ss 95(2)(b) and s 96A(2)(b) intended the reference to “employee” to mean a person then employed under a contract of employment as at the time of the referral to the Commission. If this were not so, then the additional reference to “former employee” in s 96A(2)(b), would be superfluous and have no work to do. It is a rebuttable principle of statutory interpretation, that where a draftsperson uses words consistently in legislation, the same meaning should generally be attached to those words. Furthermore, where the legislature has chosen to use different language, the intention must be to change the meaning (see generally Pearce DC and Geddes RS, Statutory Interpretation in Australia, 7th Ed at par 4.6). There is nothing in the terms of the relevant provisions of the PSM Act to lead me to the view that this presumption should not be applied in this case.

21      From their terms, ss 95 and 96A, when read with ss 94 and 95A of the PSM Act, reveal a legislative scheme that has two separate strands. The first, dealt with by ss 94 and 95, provides for a process and a limited appeal from the process, concerning redeployment and proposed redundancy of public sector employees employed by an employing authority. This strand deals with a range of steps up to but falling short of termination of employment. The second strand, dealt with by ss 95A and 96A, deals with the process, and a limited right of appeal from it, leading to the termination of the employment of an employee. Both processes, and the right of referral to the Commission leading from them, are clearly separate and distinct.  

22      Therefore, in my view, it is a jurisdictional fact that needs to be established, that for a referral of a matter to the Commission under s 95(2)(b) of the PSM Act to be valid, the person aggrieved by the decision must be in an extant employment relationship with their employer, as at the time of the referral. As this jurisdictional fact is not satisfied in this case then in my view, Mr Crowley’s claim under s 95 must fall at the first hurdle, as he has no standing to refer the matter to the Commission.  Furthermore, not only is there no standing to refer the matter, by the plain terms of s 95(6), as I consider it should be construed, the Commission does not have jurisdiction in respect of the purported referral of the section 94 decision, in circumstances where the employment of the employee concerned has already come to an end.

23      For these reasons, it is unnecessary for me to consider the further question of whether the relevant decision was made more than 21 days prior to the referral to the Commission.  In the absence of standing or jurisdiction, there could never be grounds to extend time in any event.

Jurisdiction – contractual benefits claim

24      Based on his amended application at par 1C as noted above, Mr Crowley seeks the recovery of a denied contractual benefit in relation to the attraction and retention incentive he claims should have been incorporated into his voluntary severance payment.  Additionally, as referred to at par 37 of his amended grounds of claim, Mr Crowley also maintained that despite the irrevocable resignation he tendered as a part of his acceptance of the voluntary severance offer, that he remained employed and was entitled to his salary from 17 May 2016 up to the present time. This was submitted as being on the basis the non-compliance with the Regulations by the Department, rendered the termination of his employment a nullity.

25      In opposition to both claims, on jurisdictional grounds, the Department submitted that neither claim had any reasonable prospect of success. Primarily, the Department contended that as a “government officer”, as defined in s 80C(1) of the Act, any industrial matter affecting a government officer, except for those of the present kind, fall within the exclusive jurisdiction of the Arbitrator under s 80E(1) of the Act. Accordingly, as the submission went, there can be no basis upon which Mr Crowley can proceed with his contractual benefits claim before the Commission, despite the more general submission by the Department that neither claim has any reasonable prospect of success on the merits, in any event.

26      In reply, Mr Crowley contended that his claim for the attraction and retention incentive payment, along with salary after 17 May 2016, is within the Commission’s general jurisdiction under s 23 of the Act. Furthermore, Mr Crowley submitted that the employer’s actions in relation to the abolition of his substantive position was not made in good faith and the Department could not have been satisfied in accordance with the Regulations, that he could not be transferred within his Department or another organisation. Accordingly, having acted the way that it did, Mr Crowley contended that the Department’s decision making was affected by jurisdictional error and is a nullity. Thus his entitlement to ongoing salary payments remains.

27      As a “government officer” at the time of his employment, all industrial matters in connection with such officers fall exclusively within the jurisdiction of the Arbitrator, as is provided by s 80E(1) of the Act. The only exception to this general exclusive jurisdiction, is claims of the current kind made under ss 95 and 96A of the PSM Act. This is made clear by the terms of s 80E(7), to the effect that despite section 80E(1) dealing with the exclusive jurisdiction of the Arbitrator in respect of industrial matters relating to a government officer, an Arbitrator does not have jurisdiction to deal with matters of the present kind.  That is the only exception to the exclusive nature of the Arbitrator’s jurisdiction under the Act.

28      The exclusivity of the Arbitrator’s jurisdiction in respect of government officers under s 80E(1) of the Act has been referred to in many decisions of the Commission. That is, the Commission’s general jurisdiction under s 23 of the Act is not able to be availed of by a government officer. For example, this was referred to in a decision of the Full Bench of the Commission in Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward (2008) [WAIRC 00079]; (2008) 88 WAIG 156 per Ritter AP at pars 92-94. Therefore, in relation to Mr Crowley’s claims for payment in respect of the attraction and retention incentive and ongoing salary, as alleged contractual benefits, they are beyond the Commission’s jurisdiction under s 23 of the Act.

Conclusion

29      Accordingly, for the foregoing reasons, the application must be dismissed for want of jurisdiction.