Appeal against a decision of the Commission in matter no. APPL 33 of 2016 given on 16 November 2016

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2017 WAIRC 00262

DELIVERED : FRIDAY, 12 MAY 2017

FILE NO. : FBA 9 OF 2016

Appellant

AND

Chief Executive Officer, Department of Commerce

Respondent

ON APPEAL FROM:

Jurisdiction : Western Australian Industrial Relations Commission

Coram : Acting Senior Commissioner S J Kenner

Citation : [2016] WAIRC 00883; (2016) 96 waig 1651

File No. : APPL 33 of 2016

CatchWords : Industrial Law (WA) - Referral of a decision made under Public Sector (Redeployment and Redundancy) Regulations 2014 (WA) dismissed for want of jurisdiction as applicant not an employee at time the referral made and no standing to refer a decision where employee is terminated - Referral under s 29(1)(b)(ii) also dismissed for want of jurisdiction of a claim for money owed under a voluntary severance agreement on grounds s 80E(1) of Industrial Relations Act 1979 (WA) confers exclusive jurisdiction in respect of industrial matters relating to a government officer - Principles of statutory construction considered - expressum facit cessare tacitum principle considered - When regard is had to s 101 of Public Sector Management Act 1994 (WA) termination of employment in s 95(6) of the Public Sector Management Act is to be construed as including termination by employee - Jurisdiction of Public Service Arbitrator applies to a former government officer - Jurisdiction conferred by s 95 and s 96A of Public Sector Management Act ousts a referral made by an employee to invoke the general jurisdiction conferred by s 23(1) of the Industrial Relations Act.

Legislation : Industrial Relations Act 1979 (WA) s 7(1), s 7(1a), div 2 of pt II, s 22A, s 23, s 23(1), s 23A, s 29(1)(a), s 29(1)(b)(ii), s 49, div 2 of pt IIA s 80C, s 80C(2), s 80E, s 80E(1), s 80E(2)(a), s 80E(6), s 80E(7), s 80E(7)(a), s 80F(2)

Public Sector Management Act 1994 (WA) s 6(2), s 29(1)(h), pt 6, s 94, s 94(1A), s 95A, s 95B, s 95, s 95(2), s 95(2)(b), s 95(5), s 95(6), s 96A, s 96A(2), s 96A(2)(b), s 96A(5), s 101, s 101(1), s 101(1)(b), s 101(2), s 101(2)(b),

Public Sector (Redeployment and Redundancy) Regulations 2014 (WA) pt 3, reg 13, reg 13(1)(a), reg 13(4), reg 16, reg 16(5),

Industrial Legislation Amendment Act 1995 (WA) s 49,

Labour Relations Reform Act 2002 (WA) s 185,

Conveyancing Act 1919 (NSW) s 88B

Strata Schemes Management Act 1996 (NSW) s 43

Sentence Administration Act 1995 (WA) s 3

Workforce Reform Act 2014 (WA) s 5, s 6, s 7, s 14, s 15

Result : Appeal dismissed

Representation:

Appellant : No appearance

Respondent : Mr R Bathurst (of counsel)

Solicitors:

Respondent : State Solicitor for Western Australia

Case(s) referred to in reasons:

Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1

Chief Executive Officer, Department of Agriculture and Food v Ward [2008] WAIRC 00079; (2008) 88 WAIG 156

Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244; (2005) 149 IR 160; (2005) 86 WAIG 231

McGillivray v Piper, Chief Executive Officer of the Ministry of Justice [2000] WASCA 245

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144

Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511

The Civil Service Association of Western Australia Inc v Director-General, Department for Child Protection [2010] WAIRC 00206; (2010) 90 WAIG 214

The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc) [2004] WAIRC 13765; (2004) 85 WAIG 629

White v Betalli [2007] NSWCA 243

Case(s) also cited:

Australian, Rail, Tram and Bus Industry Union of Employees, West Australian Branch v Public Transport Authority of Western Australia [2014] WAIRC 00451 (4 June 20145)

Automatic Fire Sprinklers Pty Ltd v Watson 72 CLR 435

Bellamy v Chairman, Public Service Board (1986) 66 WAIG 1579

Commonwealth Bank of Australia v Garuda Aviation Pty Ltd [2013] WASCA 61; (2013) 45 WAR 92

Conway-Cook v Town of Kwinana [2001] WASCA 250

In De Braekt v Chief Executive Officer of the Department of Productivity and Labour Relations [2000] WAIRC 00162 (30 June 2000)

Matthews v Cool or Cosy Pty Ltd (2004) 84 WAIG 2152

Nelson v Public Transport Authority of Western Australia (2016) 96 WAIG 1567

The Civil Service Association of Western Australia Inc v Western Australian College of Teaching (2011) 91 WAIG 2391

Reasons for Decision

SMITH AP:

Background

1         This is an appeal instituted under s 49 of the Industrial Relations Act 1979 (WA) (the IR Act).  The appeal is against an order made by the Commission on 16 November 2016 dismissing for want of jurisdiction an application ([2016] WAIRC 00883; (2016) 96 WAIG 1651):

(a) for a referral of a decision made under regulations referred to in s 94 or s 95A of the Public Sector Management Act 1994 (WA) (the PSM Act) pursuant to s 95 and s 96A of the PSM Act; and

(b) to refer a claim pursuant to s 29(1)(b)(ii) of the IR Act of a contractual benefit, being an amount owed under a voluntary severance agreement and a claim for unpaid salary from 17 May 2016.

2         The appellant did not appear at the hearing of the appeal.  He did, however, file a brief outline of written submissions in which he made it clear that he relied not only on the matters outlined but also on written submissions that he filed during the course of the hearing at first instance.  On the day of the appeal, shortly before the hearing of the appeal was to commence, the appellant sent an email to the chambers of Acting President Smith.  In an email directed to the associate he stated that he had other commitments that morning and would not be attending the hearing.  He also advised he did not require an adjournment and was content to rely on his written submissions.  The non-appearance of the appellant at his own appeal, who is counsel and practises as a barrister in Western Australia, was surprising and could be regarded as conduct lacking in courtesy.  The respondent, however, did appear at the hearing of the appeal by counsel and the Full Bench proceeded to hear the respondent's arguments in the absence of the appellant.

3         The appellant, Mr Crowley, was employed by the respondent initially on a fixed term contract in 2009 and was permanently appointed to a position as General Counsel in the Office of the Director General, Department of Commerce on 13 June 2011.

4         In early February 2016, the appellant expressed an interest in taking a voluntary redundancy as it had been determined that his substantive position was to be abolished.  There was some discussion between the parties about the content of his severance package.  The appellant was of the view that his package should include an attraction and retention incentive payment that he had been receiving in an acting position.  Representatives of the Department of Commerce considered this request and took the view that the incentive payment was not to be included in the appellant's severance package.  In view of this, the appellant was asked whether he wished to proceed with a voluntary severance to which he replied that he did.

5         It was a condition of the appellant's acceptance of a voluntary severance offer that he resign from his employment with the Department of Commerce.  The appellant accepted the offer of voluntary severance on 11 May 2016 and elected to resign, effective on 17 May 2016.

6         On 23 June 2016, the appellant filed an application for a referral of a decision made under the Public Sector (Redeployment and Redundancy) Regulations 2014 (WA) (the Redeployment and Redundancy Regulations) which are regulations referred to in s 94 and s 95A of the PSM Act.  In his application, the appellant claimed that the severance amount did not include 'an allowance for temporarily undertaking duties other than those of the substantive office, post or position of the relevant employee that has been paid continuously to the employee for the preceding 12 months' as required by reg 13(1)(a) of the Redeployment and Redundancy Regulations.  The amount claimed by the appellant was $22,330.64, being a 20% attraction and retention bonus.

7         In an amended application dated 12 October 2016, the appellant claimed in the alternative that $22,330.64 was an amount that he was entitled to under his contract of employment for which he had standing to make an application pursuant to s 29(1)(b)(ii) of the IR Act in relation to which the Commission has independent jurisdiction to hear and determine pursuant to the power conferred by s 23 of the IR Act.

8         Thus, the appellant claimed he had standing to refer his claim for payment of attraction and retention bonus to the Commission either by a referral pursuant to s 94 or s 95A of the PSM Act or alternatively by a referral pursuant to s 29(1)(b)(ii) of the IR Act.

9         In the appellant's amended grounds of application, he also claimed that despite the irrevocable resignation he tendered as part of his acceptance of the voluntary severance offer, he remained employed and was entitled to his salary from 17 May 2016 up to the time of the hearing at first instance.  In support of this claim he sought to argue that non-compliance with the Redeployment and Redundancy Regulations by the Department of Commerce rendered the termination of his employment a nullity.

10      Acting Senior Commissioner Kenner found the appellant had no standing to refer his claim under either s 95 or s 96A of the PSM Act.  He found that:

(a) for a referral of a matter to the Commission under s 95(2)(b) of the PSM Act to be valid the jurisdictional fact that needs to be established is that the person aggrieved by the decision must be in an extant employment relationship with their employer at the time of the referral.  As the appellant's employment had ceased on 17 May 2016, the appellant had no standing to refer the matter to the Commission.  Furthermore, s 95(6) of the PSM Act denied standing to the appellant to refer the matter as the Commission does not have jurisdiction in respect of the purported referral of a s 94 decision, in circumstances where the employment of the employee concerned had already come to an end at the time of the referral; and

(b) section 96A(2)(b) of the PSM Act only extends to employees who have been 'registered' under the Redeployment and Redundancy Regulations, as that is defined in s 94(1A) of the PSM Act.  As it was common ground that the appellant was not a registered employee, s 96A had no application to the circumstances of his case.

11      Acting Senior Commissioner Kenner also found that the appellant's claims were beyond the jurisdiction of the Commission to hear and determine under s 23 of the IR Act.  In particular, he found that as the appellant was a 'government officer', all industrial matters in connection with such an officer fall exclusively within the jurisdiction of the Public Service Arbitrator, as is provided by s 80E(1) of the IR Act.  The learned Acting Senior Commissioner also observed that the only exception to this general exclusive jurisdiction is claims of referrals made under s 95 and s 96A of the PSM Act.  This construction was made clear by the terms of s 80E(7) which provides that despite s 80E(1) dealing with the exclusive jurisdiction of the Public Service Arbitrator in respect of industrial matters relating to a government officer, a Public Service Arbitrator does not have jurisdiction to deal with the matters of the kind sought to be raised by the appellant.

12      For these reasons, Kenner ASC found the appellant's claims in respect of the attraction and retention incentive and ongoing salary are beyond the Commission's jurisdiction under s 23 of the IR Act.

Grounds of appeal

13      The appellant's grounds of appeal are as follows:

1. The Commission erred in law in dismissing the claim advanced under s.29(1)(b)(ii) with s.23 of the Industrial Relations Act 1979 (WA) for want of jurisdiction by finding that the Public Service Arbitrator had 'exclusive jurisdiction' under s.80C [sic] of that Act on the basis that the Applicant was a 'government officer', when the Applicant was not a 'government officer' at the material time.

2. The Commission erred in law in its construction of 'termination' in subsection 95(2)(b) of the Industrial Relations Act 1979 (WA) [sic] as it applied to the Applicant's resignation under Part 3 of the Public Sector (Redeployment and Redundancy) Regulations 2014 (WA).

Ground 2 of the appeal - jurisdiction of the Commission to hear and determine the appellant's referral of decision made under regulations referred to in s 94 of the PSM Act - Conclusion

14      Although ground 2 refers to s 95(2)(b) of the IR Act, it is clear from the submissions made by the parties that the appellant's ground is raised in relation to the construction of the term 'termination' in s 95(2)(b) of the PSM Act.

15      Section 95 of the PSM Act provides:

(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.

16      Section 96A of the PSM Act provides:

(1) A decision made or purported to be made under regulations referred to in section 95A to terminate the employment of an employee or any matter, question or dispute relating to the decision is not an industrial matter for the purposes of the Industrial Relations Act 1979.

(2) Despite subsection (1), a decision made or purported to be made under regulations referred to in section 95A(2), other than a decision to terminate the employment of an employee, may be referred to the Industrial Commission —

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

(b) by an employee or former 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 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 —

(a) must confine itself to determining whether or not the employee concerned has been allowed the benefits to which the employee is entitled under the regulations referred to in section 95A(2)(b); and

(b) does not have jurisdiction to exercise its powers under the Industrial Relations Act 1979 section 23A.

17      Pursuant to s 95(2)(b) of the PSM Act, a s 94 decision may be referred to the Commission.  Section 95(6) provides that the Commission does not have jurisdiction in respect of a s 94 decision if the employment of the employee is terminated.

18      Section 96A(2) provides that a decision made or purported to be made under regulations referred to in s 95A (which provides for the termination and terms and conditions, including remuneration of a registered employee) other than a decision to terminate the employee may be referred to the Commission.

19      The appellant contends his employment was not 'terminated', that he resigned in conformity with pt 3 of the Redeployment and Redundancy Regulations.  The consequence of this submission, if accepted, he says is that s 95(6) does not operate to prohibit his claims being referred pursuant to s 95(2) of the PSM Act.

20      The appellant argues that to construe the word 'termination' in s 95(6) of the PSM Act as capturing any kind of cessation of the employment relationship is not sound.  In written submissions filed by the appellant in the proceedings at first instance he put a submission that the provisions of the PSM Act treat resignation and termination as discrete statutory concepts.  In particular, he argued that:

(a) In the case of an offer of voluntary severance under pt 3 of the Redeployment and Redundancy Regulations, the decision as to the continuation or cessation of employment is not the employer's but solely the employee's.  'Termination' and 'resignation' are treated as conceptually and legally discrete concepts to which attach different legal consequences.  The regulations describe a graduated chronological process of severance (voluntary resignation), redeployment and ultimately 'termination'.

(b) The term 'termination' is not defined in the PSM Act whereas the provisions of Redeployment and Redundancy Regulations do clothe the meaning of 'termination'.

(c) A decision to 'terminate' an employee's employment is conditional upon the employee having the status of 'registered' employee (for redeployment and retraining).  An employee who is offered voluntary severance is not 'registered'.

(d) Section 95(6) is simply a companion to s 96A, foreclosing upon a person to whom s 95A applies from articulating a challenge under s 95.

21      In considering the appellant's argument, the starting point in construing any legislation is that an Act is to be read as a whole and separate sections of an Act should not be read out of context.  It is also a rule of statutory construction that words in legislation are assumed to be used consistently.

22      The fundamental difficulty with the appellant's argument is that it ignores the effect of s 101 of the PSM Act.  Section 101 provides:

(1) The maximum amount of compensation payable under this Act or any other written law in respect of the termination of the employment of an employee in the Public Sector by — 

(a) the employing authority of a department or organisation; or

(b) the employee,

is an amount equal to the amount of the remuneration to which the employee is entitled for the period of one year ending immediately before the day on which that employment is terminated.

(2) Subsection (1) does not apply in relation to compensation payable under —

(a) the Industrial Relations Act 1979 section 23A(6); or

(b) regulations referred to in section 94 or 95A if those regulations provide for a higher amount of compensation.

23      Whilst s 101(1) is not confined to the termination of employment on grounds of redundancy, the effect of s 101(1)(b) and s 101(2)(b) is that where an employer or an employee terminates the employment of an employee, the maximum amount of compensation payable under the Redeployment and Redundancy Regulations is not to exceed one year's remuneration, except where the Redeployment and Redundancy Regulations provide for a higher amount of compensation.

24      Section 101, when read with s 95 and s 96A of the PSM Act, supports the construction given by the learned Acting Senior Commissioner that s 95(6) ([18]):

[A]pplies 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.

25      In any event, s 101 applies to a resignation on grounds of voluntary severance pursuant to an offer made to an employee under pt 3 of the Redeployment and Redundancy Regulations.  Regulation 13(4) and reg 16 of the Redeployment and Redundancy Regulations apply to offers of voluntary severance.  Regulation 13 provides, as required by s 101(1), that a severance payment paid to an employee (who resigns from his or her employment) is not to exceed 52 weeks' pay.  Regulation 16 is authorised by s 101(2).  This regulation provides an exception to reg 13 where the Minister approves a targeted voluntary severance scheme.  Pursuant to reg 16(5) the amount of a targeted voluntary severance scheme may exceed 52 weeks' pay.

26      When reg 13 and reg 16 are read together with s 101 and pt 6 of the PSM Act, the words 'if the employment of the employee concerned is terminated' in s 95(6) must be read to mean termination by an employer or an employee.

27      When this construction of s 95(6) is applied to the facts of this matter and the claim pleaded by the appellant, in particular when regard is had to the claim pleaded by the appellant which is a claim that reg 13(1)(a) of the Redeployment and Redundancy Regulations was not complied with, it is clear that the appellant 'terminated' his employment by accepting an offer of voluntary severance and resigning his employment.  It follows therefore the learned Acting Senior Commissioner did not err in finding the appellant was barred from referring the s 94 decision pursuant to s 95(2) of the PSM Act.

28      For these reasons, I am of the opinion ground 2 of the appeal must fail.

Ground 1 of the appeal – exclusive jurisdiction of Public Service Arbitrator - Conclusion

29      The appellant in his outline of submissions argues in ground 1 that having found that at the time of the referral the appellant was not an employee as he had resigned effective from 17 May 2016, it was not open to dismiss his application invoking s 23 of the IR Act claim by reason of the purported 'exclusive jurisdiction' of the Public Service Arbitrator described in s 80E of the IR Act.  The appellant's argument essentially is that the Commission in its general jurisdiction conferred by s 23(1) has jurisdiction to hear and determine his claims as standing is conferred upon him to bring these claims to the Commission in its general jurisdiction pursuant to s 29(1)(b)(ii) of the IR Act.

30      The appellant says that whilst the 'exclusivity' of the Public Service Arbitrator's jurisdiction is limited to matters relating to a government officer, he was not a 'government officer' within the meaning of that term as defined in s 80C of the IR Act when the denial of the contractual benefit occurred, nor when he invoked the Commission's jurisdiction by referral.  In support of the argument that a contractual benefit was denied to him after his employment ceased the appellant relies upon the fact that he was not paid a voluntary severance benefit until after the effective date of his resignation.

31      The appellant says the decision in Chief Executive Officer, Department of Agriculture and Food v Ward [2008] WAIRC 00079; (2008) 88 WAIG 156 in which it was found that the Commission's general jurisdiction cannot be availed of by a government officer is distinguishable because that matter involved applicants (respondents in the appeal) who were 'government officers' as employees at the time of the referral, and beyond.

32      With respect, the appellant's arguments have no arguable basis at law.  The scheme of the provisions of the IR Act are clear.  Firstly, where an industrial matter is raised in any application before the Commission which 'relates to a government officer' the general jurisdiction of the Commission under s 23(1) of the IR Act is expressly excluded by s 80E(1) of the IR Act.  The jurisdiction of the Public Service Arbitrator to deal with industrial matters relating to government officers is not confined to only enquiring into and dealing with industrial matters that relate to current employees.  Secondly, even if the claims sought to be pursued by the appellant as contractual benefits referred pursuant to s 29(1)(b)(ii) of the IR Act, could be characterised as matters that do not arise within the exclusive jurisdiction of the Public Service Arbitrator, when the provisions of the PSM Act and the IR Act conferring jurisdiction to hear and determine a claim by a government officer that arise out of the application of regulations referred to in s 94 and s 95A of the PSM Act are considered, the appellant's claims must fail on grounds of want of jurisdiction.

(a) Jurisdiction of the Public Service Arbitrator not confined to current employment relationships

33      The general jurisdiction of the Commission found in s 23(1) of the IR Act is in div 2 of pt II of the IR Act which provides that, subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.

34      An 'industrial matter' is defined to mean in s 7(1) of the IR Act:

In this Act, unless the contrary intention appears —

industrial matter means any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to —

(a) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;

(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;

(c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;

(ca) the relationship between employers and employees;

(d) any established custom or usage of any industry, either generally or in the particular locality affected;

(e) the privileges, rights, or duties of any organisation or association or any officer or member thereof in or in respect of any industry;

(f) in respect of apprentices, these additional matters —

(i) their wage rates and, subject to the Vocational Education and Training Act 1996 Part 7 Division 2, other conditions of employment; and

(ii) the wages, allowances and other remuneration to be paid to them, including for time spent in performing their obligations under training contracts registered under the Vocational Education and Training Act 1996 Part 7 Division 2, whether at their employers' workplaces or not; and

(iii) without limiting subparagraphs (i) and (ii), those other rights, duties and liabilities of them and their employers under such contracts that do not relate to the training and assessment they are to undergo, whether at their employers' workplaces or not;

(g) any matter relating to the collection of subscriptions to an organisation of employees with the agreement of the employee from whom the subscriptions are collected including —

(i) the restoration of a practice of collecting subscriptions to an organisation of employees where that practice has been stopped by an employer; or

(ii) the implementation of an agreement between an organisation of employees and an employer under which the employer agrees to collect subscriptions to the organisation;

[(h) deleted]

(i) any matter, whether falling within the preceding part of this interpretation or not, where —

(i) an organisation of employees and an employer agree that it is desirable for the matter to be dealt with as if it were an industrial matter; and

(ii) the Commission is of the opinion that the objects of this Act would be furthered if the matter were dealt with as an industrial matter;

and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute …

35      An industrial matter in respect of claims of contractual benefits was expressly extended beyond the cessation of an employment relationship by the enactment of s 7(1a) of the IR Act in 1995 by s 49 of the Industrial Legislation Amendment Act 1995 (WA).  Section 7(1a) provides:

A matter relating to —

(a) the dismissal of an employee by an employer; or

(b) the refusal or failure of an employer to allow an employee a benefit under his contract of service,

is and remains an industrial matter for the purposes of this Act even though their relationship as employee and employer has ended.

36      Even prior to the enactment of s 7(1a) in 1995 it had been considered that the words 'conditions of employment including conditions which are to take effect after the termination of employment' in paragraph (b) of the definition of 'industrial matter' in s 7(1) invoked the jurisdiction of the Commission to hear and determine a claim which related to an industrial matter after the employment relationship ceased (see the discussion in The Civil Service Association of Western Australia Inc v Director-General, Department for Child Protection [2010] WAIRC 00206; (2010) 90 WAIG 214 [83] - [87] (Smith AP); [145] - [146] (Kenner C).

37      Since the addition of 'and also includes any matter of an industrial nature the subject of an industrial dispute or the subject of a situation that may give rise to an industrial dispute …' (by the enactment of s 185 of the Labour Relations Reform Act 2002 (WA)) to the definition of paragraph (i) of 'industrial matter' in s 7(1) of the IR Act, the definition of 'industrial matter' is even wider and includes a matter of an industrial nature which is not dependent upon a finding of a direct relationship with an employment relationship.  President Sharkey made this point in The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc) [2004] WAIRC 13765; (2004) 85 WAIG 629 [32] - [33].

38      For this reason, ground 1 of the appeal is not made out and I am of the opinion an order should be made to dismiss the appeal.  As ground 1 is narrowly drafted, and whilst it is not perhaps strictly necessary to consider whether the general power of the Commission conferred by s 23(1) of the IR Act can be invoked by a referral by a person who had been employed as a government officer at the time a decision was made or purported to be made under regulations made under s 94 or s 95A of the PSM Act, as this issue is canvassed by both parties in their submissions it is appropriate to express an opinion about this issue.

(b) Limitations on the general jurisdiction of the Commission to hear and determine claims by or on behalf of a government officer or a former government officer under s 23 of the IR Act

39      Section 23(1) of the IR Act provides:

Subject to this Act, the Commission has cognizance of and authority to enquire into and deal with any industrial matter.

40      The conferral of exclusive jurisdiction in respect of industrial matters that relate to a 'government officer' is found in the express power in s 80E(1) of the IR Act which provides:

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

41      The ousting of the general jurisdiction of the Commission in s 23(1) of the IR Act by s 80E(1) by the exclusive jurisdiction of the constituent authorities, one of which is the Public Service Arbitrator, is put beyond doubt by the expressed intention in the definition of 'industrial matter' in div 2 by operation of s 22A of the IR Act.  Section 22A and s 23(1) are both found in div 2 of pt II of the IR Act.  Section 22A provides:

In this Division and Divisions 2A to 2G —

Commission means the Commission constituted otherwise than as a constituent authority;

industrial matter does not include a matter in respect of which, subject to Division 3, a constituent authority has exclusive jurisdiction under this Act.

42      It is not disputed by the appellant that whilst employed by the respondent he was employed as a 'government officer'.  However, the appellant has no standing to refer his claims to the Public Service Arbitrator as the appellant's claims are not capable of characterisation of a claim of the kind described in s 80E(2)(a) of the IR Act.  Pursuant to s 80F(2) of the IR Act a government officer may only refer a claim mentioned in s 80E(2)(a), that is a claim in respect of the salary, range of salary or title allocated to the office occupied by a government officer.

43      The learned Acting Senior Commissioner, in my opinion, was right to observe that the only exception to the exclusive jurisdiction of the Public Service Arbitrator to enquire into and deal with any industrial matter relating to government officers are claims referred to in s 80E(7) of the IR Act.  Section 80E(7)(a) provides:

Despite subsections (1) and (6), an Arbitrator does not have jurisdiction to enquire into or deal with, or refer to the Commission in Court Session or the Full Bench the following —

(a) any matter in respect of which a decision is, or may be, made under regulations referred to in the Public Sector Management Act 1994 section 94 or 95A;

44      Whilst ground 1 of the appellant's grounds of appeal is narrowly confined solely to the issue whether he ceased to be a 'government officer' in respect of the claims he seeks to refer to the Commission, an argument could be raised that the effect of s 80E(7) is to vacate the field of the exclusive jurisdiction of the Public Service Arbitrator to hear and determine claims by a person who had been employed as a government officer that arise from a decision under pt 3 of the Redeployment and Redundancy Regulations which gives rise to a denied entitlement in a contract of employment.

45      The difficulty with this contention is that when regard is had to the specific scheme of review of decisions made or purported to be made under the Redeployment and Redundancy Regulations enacted in pt 6 of the PSM Act, the general jurisdiction of the Commission under s 23(1) as a matter referred pursuant to s 29(1)(b)(ii) of the IR Act cannot be enlivened.

46      Where a particular procedure is enacted to achieve something, the principle of statutory construction 'expressum facit cessare tacitum' applies.  This principle means where a particular procedure is designed to achieve something other general procedures are thereby excluded.  This principle is also known as the Anthony Hordern principle.  In Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, 7 Gavan Duffy CJ and Dixon J said:

When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.

47      In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 Gummow and Hayne JJ referred to a number of leading authorities which set out the application of the Anthony Hordern principle.  In their judgment, their Honours said [55] - [59]:

Anthony Hordern ((1932) 47 CLR 1) concerned the Commonwealth Conciliation and Arbitration Act 1904 (Cth) (the Conciliation and Arbitration Act) which apparently contained two powers for the making of an award with respect to union preferences. Section 40 empowered the Court of Conciliation and Arbitration by award to give preferential employment to members of unions over other persons, subject to certain conditions, including that such an award was to be made only 'other things being equal'. The power in s 40 was not expressly confined to the situation where there was an industrial dispute about preference. However a judge of the Court, acting under the general powers in ss 24(2) and 38(a) to hear and determine industrial disputes, made an order unconditionally requiring certain employers to give preference to union members in employing female workers. This Court by majority (Gavan Duffy CJ and Dixon J, McTiernan J, Starke and Evatt JJ dissenting) held that those general powers did not authorise the judge to make an award which 'ignored the exception[s]' ((1932) 47 CLR 1 at 8) contained in s 40.  McTiernan J concluded as follows ((1932) 47 CLR 1 at 20):

'Reading the Act as a whole, there does not appear to me to be any reason for holding that Parliament intended to give to the Court two powers, entirely different in scope, to order "preference." I do not think that the Legislature intended that, in a case in which preference was in dispute, the Court should be free to make any award it deemed fit and that the award might be entirely unconditional, whereas, in a case in which preference was not in dispute, the Court should be fettered and its award moulded by the provisions of s 40.'

This is a rather more compendious expression of what was said by Gavan Duffy CJ and Dixon J in the passage set out earlier in these reasons. As a matter of construction (and not as one of implied repeal) there was only one power which could be relied upon to make awards giving preferential employment to union members.

The cases after Anthony Hordern

R v Wallis (Wool Stores Case) ((1949) 78 CLR 529) also concerned the power to make awards under the Conciliation and Arbitration Act. A union applied to a conciliation commissioner, charged with preventing and settling industrial disputes, for insertion of a compulsory unionism clause in an award. An employer sought prohibition on the basis that the commissioner had no power to make such an award because s 56 of the Act empowered the Court only to make awards giving preferential employment (as distinct from monopoly employment) to union members. Section 56 was the descendant of s 40, considered in Anthony Hordern. This Court made absolute the order nisi for prohibition. Dixon J described s 56 as a 'specific power, of a limited nature' ((1949) 78 CLR 529 at 552). Accordingly it was improper to infer in the general powers 'a much more comprehensive and drastic power upon the same subject matter or upon matters ejusdem generis' ((1949) 78 CLR 529 at 553) than that contained in s 56. Dixon J expressed his conclusion as according ((1949) 78 CLR 529 at 550):

'with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.'

Leon Fink Holdings Pty Ltd v Australian Film Commission ((1979) 141 CLR 672) turned upon the powers of the Australian Film Development Corporation to make loans. Section 20 of the Australian Film Development Corporation Act 1970 (Cth) provided that the functions of the Corporation were to 'encourage the making of Australian films and to encourage the distribution of Australian films both within and outside Australia'. Section 21(1)(a) of that Act provided that 'without limiting the generality of the foregoing' the Corporation had power to make loans 'to producers of Australian films'. The Corporation lent money to a borrower which was not a producer of Australian films 'to assist in the production' of an Australian film. Mason J referred to Anthony Hordern and held that, but for the presence of the words 'without limiting the generality of the foregoing' in s 21(1), the restrictions in that specific power to make loans would qualify the general power in s 20 ((1979) 141 CLR 672 at 678-680). However the presence of those words meant it was proper to regard s 21 as setting out particular examples of the general power in s 20. Again, the issue was one of construction of the two provisions in question.

Downey v Trans Waste Pty Ltd ((1991) 172 CLR 167) concerned the power of Victorian Conciliation and Arbitration Boards to refer certain matters to the Industrial Relations Commission. Section 44(4) of the Industrial Relations Act 1979 (Vic) provided that a Board seized of an 'industrial dispute' might apply to the President for an order referring 'the matter of the dispute' to the Commission for hearing and determination. However s 44(7) provided that, in respect of matters referred by the Board, the Commission was to have all the powers of the Board under s 34. That section included certain restrictions of a privative nature affecting the way in which questions in an industrial dispute concerning unfair dismissal could be determined. Section 37(8) of the Act empowered the Board to apply to the President for an order referring any 'matter' before it to the Commission for hearing and determination. Although the meaning of industrial matter was broader than that of 'industrial dispute', there was no provision analogous to s 44(7) applicable in the case of referrals under s 37(8). Dawson J considered that s 44(4) excluded the more general s 37(8) where the industrial dispute concerned whether a dismissal was harsh, unjust or unreasonable ((1991) 172 CLR 167 at 180, 182-183). This was because, based upon a detailed consideration of the statutory history, it was proper to infer that the Commission was not intended to exercise a jurisdiction free from the limitations that would have been imposed upon the Board in determining a dispute of that kind.

Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power' (Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7), or are with respect to the same subject matter (Wool Stores Case (1949) 78 CLR 529 at 550), or whether the general power encroaches upon the subject matter exhaustively governed by the special power (Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; Refrigerated Express Lines (A/asia) Pty Ltd v Australian Meat and Livestock Corporation [No 2] (1980) 44 FLR 455 at 468-469). However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

48      It was observed in Re Wilcox; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511, 530 - 531 by the Full Court of the Federal Court that this maxim has little, if any, applicability to powers expressly conferred in separate enactments.  A better view may be if the subject matter of both powers is the same and the specific power is intended to be exhaustive, the Anthony Hordern principle applies.  In White v Betalli [2007] NSWCA 243 the question before the Court of Appeal was whether the application of the principle in Anthony Hordern meant the power to create easements and restrictive covenants in s 88B of the Conveyancing Act 1919 (NSW) precluded the use of s 43 of the Strata Schemes Management Act 1996 (NSW) to make a by-law creating a right in the nature of an easement.  In her judgment, McColl JA made the following obiter observations about the Anthony Hordern principle and whether the principle can be applied to powers found in different legislative instruments [174] - [175]:

The Anthony Hordern principle is a manifestation of the maxim expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded: Nystrom (at [54])). In Wilcox, Judge of the Federal Court, Re; Ex parte Venture Industries Pty Ltd (1996) 66 FCR 511 (at 64) the Full Federal Court (Black CJ, Cooper and Merkel JJ) said the maxim was usually applied to reconcile or read down by implication a general power which was inconsistent with a specific power in the same instrument or enactment and had little, if any, applicability to powers expressly conferred in separate enactments, even, apparently, if they were part of the same legislative scheme. It has been said that there appears to be no reason for this qualification: Pearce & Geddes, Statutory Interpretation in Australia 6th ed at 4.31.

As Gummow and Hayne JJ demonstrated in Nystrom (at [56] – [59]) in their analysis of the post-Anthony Hordern cases, the question whether the maxim applies turns on the construction of the provisions in question …

49      In Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 French CJ pointed out that this principle of construction, like all principles, must be applied to the particular text, context and purpose of the statute to be construed [50].  Justice Gummow and Hayne J made a similar observation in Nystrom [54] when their Honours said that:

[W]hilst 'rules' or principles of construction may offer reassurance, they are no substitute for consideration of the whole of the particular text, the construction of which is disputed, and of its subject, scope and purpose.

50      Even if regard is not had to the Anthony Hordern principle, to construe the jurisdiction of the Commission to hear and determine a claim referred pursuant to s 95 or s 96A of the PSM Act in respect of which a decision is or may be made under regulations referred to in s 94 or s 95A of the PSM Act, regard must be had to the text of pt 6 of the PSM Act and any other relevant provisions of the PSM Act that expressly deal with the jurisdiction conferred on the Commission or deal with, or provide for, conditions that apply to redundancy of government officers.  Further, the subject, scope and purpose of those provisions must be considered together with the scope and purpose of s 23(1) of the IR Act and other relevant provisions that expressly deal with the jurisdiction of the Commission and the constituent authorities to deal with such matters arising under the PSM Act.

51      In this matter, this task of construction is required to determine whether such claims can be referred to the Commission by an employee pursuant to s 29(1)(b)(ii) of the IR Act.

52      Whilst the PSM Act and IR Act are separate enactments, and the IR Act deals with industrial matters relating to persons employed in private and public sector industries in Western Australia and whereas the PSM Act provides only for the administration, management and employment of persons in the public sector, it is intended that both Acts be read together.

53      Section 6(2) of the PSM Act provides:

Except to the extent to which a provision of this Act specifies otherwise, the Industrial Relations Act 1979 applies to and in relation to matters dealt with by this Act.

54      There are many provisions of the PSM Act that refer to either the general provisions of the IR Act or to specific provisions.  For example, a provision that makes reference to the IR Act is found in s 29(1)(h) of the PSM Act which provide chief executive officers are required to classify and determine the remuneration of employees and their offices and posts in accordance with any binding award, order or industrial agreement under the IR Act.  Such a general provision is, however, not relevant to the disposition of the issues raised in this appeal, but illustrates the general interrelationship between the two Acts.

55      The provisions of pt 6 of the PSM Act in respect of redeployment and redundancy raise a more specific application of particular provisions of the IR Act.  When these provisions are considered as a whole and when read with s 6(2) of the PSM Act and s 80C(2) of the IR Act it is clear that these provisions of the PSM Act are to be read as if incorporated into div 2, pt IIA (Constituent Authorities) of the IR Act.  Section 80C(2) of the IR Act provides that div 2 of pt IIA shall be read in conjunction with the PSM Act.  The effect of this provision is to require the incorporated Act (the PSM Act) to be read as written into the incorporating Act and to read the provisions together (as if in div 2, pt IIA of the IR Act).

56      In McGillivray v Piper, Chief Executive Officer of the Ministry of Justice [2000] WASCA 245 Anderson J explained the effect of similar words used in s 3 of the Sentence Administration Act 1995 (WA) which provided 'This Act is to be read with the Sentencing Act 1995'.  His Honour said [24] - [26]:

The effect is that the provisions of the Sentence Administration Act and the provisions of the Sentencing Act are to be read together as if they were one enactment. Each of the provisions of the two Act [sic] must be construed as if they were included in the one Act: Pearce & Geddes, Statutory Interpretation in Australia 4th ed par 7.26; Georgoussis v The Medical Board of Victoria [1957] VR 671 especially at 675; The Canada Southern Railway Company v The International Bridge Company [1883] 8 AC 723; Cadbury-Fry-Pascall Proprietary Limited v The Federal Commissioner of Taxation (1944) 70 CLR 362, especially per Williams J at 388; Phillips v Parnaby [1934] 2 KB 299; City of Bayswater v Minister for Family and Children's Services & Ors [2000] WASCA 151.

Thus, the Sentence Administration Act is to be read as if it contained s 3(3)(a) of the Sentencing Act and terms such as 'being punished' in s 3(3) of the Sentencing Act are to be construed accordingly as also are provisions such as the excepting provision in s 3(3)(a) of the Sentencing Act.

The qualification to the rule that the two Acts must be construed as if they were moulded into the one enactment is that if the requirement that two Acts be read together is contained in the later of the two Acts and there is a manifest discrepancy between the provisions of the two Acts, the later Act may be construed as repealing the earlier Act: Canada Southern Railway Co v International Bridge Co (supra) per Lord Hewitt CJ at 303; Amalgamated Television Services Pty Ltd v Australian Broadcasting Tribunal (1984) 54 ALR 57; Pearce & Geddes (loc cit).

57      When regard is had to the provisions of the PSM Act and the IR Act in this matter it cannot be said that there is a manifest discrepancy or any discrepancy between the two Acts.

58      The scheme enacted in pt 6 of the PSM Act is that regulations concerning redeployment and redundancy of public sector employees (including government officers) are authorised to be made under s 94 of the PSM Act in respect of a broad range of matters including:

(a) redeployment of employees to offices, posts or positions inside and outside the public sector;

(b) the situation where a government undertaking or the production of goods or services is to be sold or disposed of is to be replaced by the production or provision of goods and services to persons outside the public sector;

(c) registration of surplus employees;

(d) retraining of employees; and

(e) voluntary severance by resignation of an employee.

59      By operation of s 95A of the PSM Act regulations may be made to provide for the termination of employment of a registered employee and the terms and conditions (including remuneration) that are to apply to a registered employee whose employment is terminated under the regulations.  Section 95A was enacted by s 14 of the Workforce Reform Act 2014 (WA).

60      Pursuant to s 95B, the provisions of pt 6 of the PSM Act and the regulations referred to in s 94 prevail, to the extent of any inconsistency, over any provision in an award, industrial agreement or order made under the IR Act and the regulations referred to in s 94 prevail, to the extent of any inconsistency, over the terms and conditions of a contract of employment.

61      Both s 95 and s 96A were enacted by the Workforce Reform Act (s 15).  At the same time these provisions were enacted, the Workforce Reform Act amended s 80E of the IR Act in s 5 by inserting a new s 80E(7) which among other matters provides that despite s 80E(1) and s 80E(6), a Public Service Arbitrator does not have jurisdiction to enquire into or deal with any matter in respect of which a decision is, or may be, made under regulations referred to in s 94 or s 95A of the PSM Act.  Similar amendments were made to the jurisdiction of the Public Service Appeal Board and the Railways Classification Board (s 6 and s 7 of Workforce Reform Act).

62      It is well established that (but for the effect of the recently enacted s 80E(7)) the effect of s 80E(1) of the IR Act is to exclude government officers from making any claim (including a claim for denied contractual benefits) in the general jurisdiction of the Commission conferred by s 23(1) of the IR Act:  Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244; (2005) 149 IR 160; (2005) 86 WAIG 231 [27] (Jones) and Chief Executive Officer, Department of Agriculture and Food v Ward [2008] WAIRC 00079; (2008) 88 WAIG 156 [92] (Ritter AP), [170] (Beech CC), [190] (Wood C agreeing with Ritter AP).  However, it is not the case that the jurisdiction of the Public Service Arbitrator under s 80E(1) can include claims of contractual benefits referred pursuant to s 29(1)(b)(ii) of the IR Act.  The apparent obiter observation by me to the contrary in Director General of Health v Health Services Union of Western Australia (Union of Workers) [2011] WAIRC 00332; (2011) 91 WAIG 865 is a misstatement as the word 'not' was inadvertently omitted after the word 'can' in the first line of [71] of my reasons.  Without the word 'not' the sentence does not make sense and is contrary to the finding made in Ward.  The first sentence in [71] of Ward should have read:

Whilst the general jurisdiction of the Public Service Arbitrator under s 80E(1) can[not] include claims under s 29(1)(b)(ii) of the Act: Chief Executive Officer, Department of Agriculture and Food v Ward & Wall [No 1] [2008] WAIRC 00079; (2008) 88 WAIG 156 [92] (Ritter AP), the application before the Public Service Arbitrator in this matter is not a claim under s 29(1)(b)(ii) of the Act, as it is not a claim made by an employee (my emphasis in bold).

63      The powers of the Public Service Arbitrator are very wide.  Yet the expression 'exclusive jurisdiction' in s 80E(1) was likely intended to do no more than exclude the general jurisdiction of the Commission pursuant to s 23 of the IR Act, to inquire into and deal with industrial matters generally:  Jones [27] (Wheeler and Le Miere JJ).  Whilst the amendment to the definition of industrial matter in s 7(1) of the IR Act by s 22A of the IR Act was not referred to in Jones, the operation of s 22A supports this construction of s 80E(1) of the IR Act.

64      However, the effect of s 80E(7) is to exclude from the 'exclusive jurisdiction' of the Public Service Arbitrator decisions made, or decisions that may be made, under regulations referred to in s 94 or s 95A of the PSM Act.

65      When s 94, s 95A, s 95 and s 96A of the PSM Act are read together with pt IIA of the IR Act, in particular in this matter with the jurisdiction of the Public Service Arbitrator conferred by s 80E of the IR Act, the effect of these provisions is that the 'decisions' defined in s 94 and s 95A can only be referred in the manner and pursuant to the limitations prescribed in s 95 and s 96A of the PSM Act.

66      Both s 95(2) and s 96A(2) expressly prescribe that a decision may be referred under s 29(1)(a) of the IR Act (by an employer, an organisation or the Minister) or by an employee aggrieved by the decision as if the s 94 and s 95A(2) decision were an industrial matter.  By an express reference to s 29(1)(a) of the IR Act but not s 29(1)(b)(ii) of the IR Act and having regard to the scope and purpose of s 95 and s 96A of the PSM Act which provides a limited right of review of decisions made under regulations referred to in s 94 and s 95A of the PSM Act, it is clear that the right of an employee to refer an industrial matter pursuant to s 29(1)(b)(ii) the Commission under s 23(1) of the IR Act is excluded.

67      To construe these provisions in the manner contended by the appellant would enable public sector employees in the position of the appellant to avoid the limitations expressed in s 95(5) and s 95(6) and s 96A(2) and s 96A(5) of the PSM Act to review the decisions sought to be impugned.  These limitations are when a referral is made under:

(a) section 95(2) of the PSM Act, pursuant to s 95(5) the Commission is required to confine itself to determining whether the Redeployment and Redundancy Regulations have been fairly and properly applied to or in relation to the employee.  Further, s 95(6) excludes the jurisdiction conferred by s 95 in respect of a Redeployment and Redundancy Regulations decision if the employment of the employee is terminated; and

(b) section 96A of the PSM Act, pursuant to s 96A(2) the referral of a s 95A decision to terminate the employment of the registered employee cannot be the subject of the referral.  When a decision has or is purported to be made to terminate the employment of a registered employee, pursuant to s 96A(5) the Commission must confine itself to determining whether the employee concerned has been allowed the benefits to which the employee is entitled under the Redeployment and Redundancy Regulations and the Commission is prohibited from exercising its powers under s 23A of the IR Act.  (Section 23A contains the powers the Commission may exercise if it determines that the dismissal of an employee was harsh, oppressive or unfair).

68      The power conferred on the Commission by s 23(1) to hear and determine an industrial matter referred pursuant to s 29(1)(b)(ii) of the IR Act is a general power which is not subject to any limitations that attach to the powers of the Commission provided for in s 95 and s 96A of the PSM Act.  If the appellant's submissions are accepted, the effect would be to enable the appellant and other public sector employees in the position of the appellant to use the general power in s 23(1) of the IR Act to encroach unencumbered upon the subject matter exhaustively conferred by the specific powers conferred to review a s 94 PSM Act decision or a s 95A PSM Act decision pursuant to s 95 and s 96A of the PSM Act.

69      When regard is had to s 80E(7)(a) of the IR Act, when read with s 95 and s 96A of the PSM Act, as required by s 80C(2) of the IR Act, there is only one power conferred to hear and determine a claim by a government officer, including a former government officer, that he or she has not been paid a severance payment in accordance with the requirements of the Redeployment and Redundancy Regulations.  The sole power of the Commission to hear and determine such a claim and the power of a government officer to refer such a claim is confined to a referral made pursuant to s 95 or s 96A of the PSM Act.

SCOTT C.C.

70      I have had the benefit of reading the draft reasons of Her Honour, the Acting President. I agree with those reasons and have nothing to add.

EMMANUEL C

71      I have had the benefit of reading the draft reasons of Her Honour, the Acting President. I agree with those reasons and have nothing to add.