DISPUTE RE ALLEGED REFUSAL TO REINSTATE OR TO RE-EMPLOY APPLICANT MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2017 WAIRC 00737

                                        WRITTEN SUBMISSIONS 2, 3, 4 & 7 AUGUST 2017

DELIVERED : FRIDAY, 18 AUGUST 2017

FILE NO. : C 10 OF 2017

Applicant

AND

The Director General, Department of Education

Respondent

Catchwords : Industrial Law (WA) - Further application for interim order of reinstatement or re-employment pending final hearing and determination of substantive claim - Whether Commission has power to make the interim order sought - Whether Commission is deprived of jurisdiction in relation to the applicant's substantive claim - Principles applied - Commission's jurisdiction is not excluded by reason of s 23(2a) of the Act - Commission has no power to make the interim order sought - Application for interim orders dismissed

Legislation : Industrial Relations Act 1979 (WA)

  Public Sector Management Act 1994 (WA)

  Public Sector Management (Examination and Review Procedures) Regulations 2001 (WA)

  Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA)

  Working with Children (Criminal Record Checking) Act 2004 (WA)

  Labour Relations Reform Bill 2002

  Interpretation Act 1984 (WA)

  Interpretation of Legislation Act 1984 (Cth)

Result : Application for interim orders dismissed

Representation:

Counsel:

Applicant : Mr M Amati

Respondent : Mr N van Hattem of counsel

Solicitors:

Respondent : State Solicitor’s Office

Case(s) referred to in reasons:

BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers and Anor [2006] WASCA 49

Brett v Sharyn O’Neil, Director General, Department of Education [2015] WASCA 66

Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union [2003] WAIRC 09550

Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244

R v Forbes; Ex parte Bevan (1972) 127 CLR 1

RGC Mineral Sands Ltd and Anor v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch and Ors (2000) 80 WAIG 2438

Robe River Iron Associates v Federated Engine Drivers’ and Firemen’s Union of Workers of Western Australia (1986) 67 WAIG 315

SGS Australia Pty Ltd v Trevor Taylor (1993) 73 WAIG 1760

SSTU of WA v Director General, Department of Education [2014] WAIRC 00753

State School Teachers’ Union of WA (Incorporated) v Director General, Department of Education [2015] WAIRC 00875

The Board of Management, Princess Margaret Hospital for Children v The Hospital Salaried Officers Association of WA (Union of Workers) (1975) 55 WAIG 543

The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch v Anna Pineira trading as Aunty Joan’s Child Care Centre (1990) 70 WAIG 2126

The State School Teachers’ Union of W.A. (Incorporated) v The Director General, Department of Education [2017] WAIRC 00241

Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2014] WAIRC 00313

Case(s) also cited:

SSTUWA v Department of Education [2016] WAIRC 00125

Reasons for Decision

Background

1         On 2 May 2017, the Commission otherwise constituted (Matthews C) delivered its reasons for decision dismissing an application brought by the applicant that the applicant’s member, Mr Buttery be re-employed on an interim basis, pending the final hearing and determination of the substantive claim: [2017] WAIRC 00241; (2017) 97 WAIG 564. The substantive claim is that Mr Buttery was harshly and unfairly denied re-employment, following the termination of his employment by the respondent as a consequence of the issuance of an Interim Negative Notice under the Working with Children (Criminal Record Checking) Act 2004 (WA).  

2         A preliminary issue of jurisdiction taken in those proceedings, that being whether s 44(6)(bb)(i) of the Industrial Relations Act 1979 (WA) supported the making of an interim order, was not finally determined by the Commission.  Matthews C came to the conclusion in pars 21 and 22 of his reasons, that even if he had such a power, without finally determining whether this was so, he would have not exercised it in favour of Mr Buttery. This was because at that time, Mr Buttery was facing criminal charges arising out of an incident involving a year 4 student at the primary school where Mr Buttery was teaching. Matthews C considered that it would not be appropriate for the respondent to be required to re-employ a teacher in those circumstances, given the respondent’s obligation to provide children with a safe environment for their care and learning. In applying a balance of convenience approach to whether such an interim order ought be made, if the Commission had power to make it, Matthews C concluded that the balance of convenience would be strongly against the making of such an order.  Accordingly, the application for interim relief was dismissed.

3         Events have now moved on. A material change in circumstance is that on 19 June 2017 the criminal charges against Mr Buttery were discontinued. On 20 June 2017, the applicant wrote to the Director General of the respondent refreshing its request that Mr Buttery be re-employed in his former teaching position. The applicant also said that Mr Buttery should be compensated for his loss from 11 November 2016 to his re-employment and that his service be deemed continuous for all benefit purposes. If this proposal was accepted by the respondent, the applicant would discontinue these proceedings.

4         By letter dated 5 July 2017 from Mr Cullen, the respondent’s Director Standards and Integrity, the applicant was advised that under s 76(4) of the Public Sector Management Act 1994 (WA) a disciplinary investigation had been commenced by the respondent in relation to Mr Buttery’s conduct. I observe that disciplinary proceedings originally taken against Mr Buttery arising from the incident were discontinued on the cessation of his employment. It was further noted in the letter that Mr Buttery’s employment record with the respondent, that was marked “not suitable for future employment by the Department of Education” would remain unchanged for the duration of the investigation. By further letter dated 20 July 2017 on behalf of the Director General of the respondent, the applicant was informed that the respondent did not propose to re-employ Mr Buttery and compensate him for his loss of salary.

5         Accordingly, the applicant in light of the changed circumstances, now refreshes its application for an interim order of reinstatement or re-employment of Mr Buttery. The respondent maintains its opposition.

6         To enable the Commission as presently constituted to determine the further interim order application, the parties were directed to file and serve further written outlines of submissions. The submissions reaffirmed the parties’ positions adopted before Matthews C, in relation to the scope of the power in s 44(6)(bb)(i) of the Act. The parties contended that as Matthews C did not finally determine that issue, it is open for the Commission as presently constituted to do so. The respondent has now also raised a jurisdictional objection, based on s 23(2a) of the Act. This issue was not raised before the Commission in the earlier proceedings. However, as jurisdiction is always at large, this is not an impediment to the respondent raising it now: SGS Australia Pty Ltd v Trevor Taylor (1993) 73 WAIG 1760. 

Contentions of the parties

7         The respondent maintained that there is no jurisdiction or power to make the interim order sought by the applicant. There were two limbs to the respondent’s argument. 

8         The first was that the Commission’s jurisdiction in this matter is, by s 23(2a) of the Act, ousted because the substance of the applicant’s claim concerns a matter in respect of which a procedure referred to in s 97(1)(a) of the PSM Act has been prescribed. The relevant matter according to the respondent, is the recruitment and selection of employees under the Public Sector Commission Employment Standard. The contention advanced by the respondent in respect of the Standard was that the refusal to re-employ Mr Buttery, as opposed to the claim by the applicant alleging unfair dismissal, was a matter covered by the Standard. Thus, the Commission’s jurisdiction is excluded in its entirety, regardless of the specific complaints or allegations made in this particular case:  Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231 (Jones) per Wheeler and Le Miere JJ at pars 54-56; State School Teachers’ Union of WA (Incorporated) v Director General, Department of Education [2015] WAIRC 00875; (2015) 95 WAIG 1661.

9         The second contention advanced by the respondent was that which was advanced in the proceedings before Matthews C in the initial interim order application.   That being that given the acceptance by the applicant that the claim brought is not one alleging that Mr Buttery was harshly, oppressively or unfairly dismissed, but rather constitutes an unfair refusal to employ, then there is no head of power under s 44 of the Act to support the making of such an interim order. In particular, reference was made to s 44(6)(bb)(i) of the Act. The contention of the respondent was that this provision is not a source of original power to make an interim order. It was said that this conclusion is plain from the language of s 44(6)(bb)(ii) which contains an express power, without limitation, that in a case of a claim of unfair dismissal, the Commission is empowered to make any interim order that it thinks appropriate in the circumstances. The submission thus was that to the extent that Parliament has expressly conferred an interim order making power in the terms just mentioned, then this supports the conclusion that s 44(6)(bb)(i) cannot be availed of for the making of interim orders of the kind sought in this case.

10      In support of this proposition, the respondent referred to the legislative history of s 44(6)(bb) to the effect that Parliament specifically enacted s 44(6)(bb)(ii) to apply to unfair dismissal cases brought under s 44: Explanatory Memorandum Labour Relations Reform Bill 2002 at par 145.

11      Focussing specifically on the terms of s 44(6)(bb)(i), the respondent made the further submission that for an interim order to be supported under this provision, there would need to be identified a power elsewhere in the Act to enable such an order to be made. The respondent referred to only three express provisions in the Act referring to the making of “interim orders” they being ss 44(6)(bb)(ii); 83(7) and 83E. None of them apply to the present circumstances before the Commission.

12      Furthermore, whether there should be implied a power to make interim orders, in the face of a substantive power to order re-employment, was a further matter addressed in the respondent’s submissions. The submission was that the capacity for the Commission, on hearing a matter referred for determination under s 44(9) of the Act, to make final orders to re-employ in an appropriate case, does not carry with it the implication that an interim order may be made before consideration of final relief. In this respect, reference was made to and reliance placed upon the decision of the Full Bench in Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union [2003] WAIRC 09550; (2003) 83 WAIG 3314.

13      Finally, in the alternative, in the event that the Commission held there was jurisdiction and power to make an interim order, the respondent contended that an order should not be made in the circumstances of this case. Whilst accepting that the criminal charges against M Buttery have been discontinued, the conduct alleged, that being the use of force against a year 4 child was a serious matter.  Reliance was placed on contemporaneous accounts by Mr Buttery himself in this regard. The submission was therefore, consistent with the views of Matthews C, in the earlier interim order proceedings, that whilst recognising the financial impost on Mr Buttery, having been deprived of his income pending the final hearing and determination of the proceedings, the balance of convenience would weigh against the making of an interim order in the present circumstances. The fact of financial detriment, which would follow in most cases of the current kind, can be ultimately remedied, in the event that the substantive application succeeds, the respondent contended.

14      For all of the foregoing reasons, it was submitted firstly, that the substantive application should be dismissed. Alternatively, the application for an interim order should be dismissed.

15      On the other hand, the applicant made a number of submissions. Firstly, as to the s 23(2a) issue, the applicant contended the matter before the Commission is not one concerning the selection and recruitment of an employee, but redressing an alleged wrong. The allegations of the applicant are that the respondent has unfairly and harshly refused to re-employ Mr Buttery and relief is sought from this. The applicant does not seek an order from the Commission to interfere with the respondent’s recruitment process or who it is able to employ. The applicant further contended that the circumstances of the Jones case are distinguishable from the present matter. Accordingly, s 23(2a) was no barrier to the Commission dealing with the matter.

16      Secondly in relation to the interim order power, the applicant referred to the breadth of the Commission’s powers having regard to the terms of ss 7, 23(1) and 44 of the Act. In particular, as to “refusal to employ” cases, and the scope of possible orders under s 44 of the Act, the applicant referred to BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers and Anor [2006] WASCA 49; (2006) 86 WAIG 1193, a decision of the Industrial Appeal Court, and The Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch v Anna Pineira trading as Aunty Joan’s Child Care Centre (1990) 70 WAIG 2126, a decision of the Full Bench of the Commission. The applicant relied upon observations of both the Industrial Appeal Court and the Full Bench as to the powers of the Commission to “deal with” an industrial matter, and the breadth and scope of the powers of the Commission under s 44 of the Act, whether the claim be for interim or final relief, as the case may be.

17      Secondly, and specifically focussing on s 44(6) of the Act, the applicant contended that s 44(6)(bb)(i) makes it clear that under s 44, the Commission has available to it the full range of powers when enquiring into and dealing with any industrial matter. The submission was that when read with s 23 of the Act, s 44(6)(bb)(i) may be said to provide the Commission with “secondary original jurisdiction” when dealing with an unresolved or live industrial matter before it, as I understood the submissions. In this regard, reference was also made to the terms of s 27(1) as specifically referred to in s 44(6)(c) of the Act. The applicant referred to and relied on s 27(1)(o), which enables the Commission, in relation to any matter before it, to make such orders as may be just with respect to interlocutory proceedings. As I understood the applicant’s submission, it was therefore contended that s 27(1)(o) provides some support for the interim order sought in this case. 

18      Reference was also made in the applicant’s submissions to s 18 of the Interpretation Act 1984 (WA) dealing with the purpose or object of a written law and also correspondingly, s 41A of the Interpretation of Legislation Act 1984 (Cth). It was not clear to me how the latter provision is relevant to these proceedings.

19      Thirdly and in any event, if the Commission was satisfied that it had jurisdiction and power, the applicant submitted that the balance of convenience lay with Mr Buttery and an interim order should be made. In this respect, it was contended by the applicant that on the facts, Mr Buttery has not been found to have committed any act of misconduct and the criminal charges have been discontinued. As a matter of equity and good conscience in those circumstances, an interim order should be made. Furthermore, given the fact that Mr Buttery has had his authority to work with children returned to him, combined with the significant financial stress, further supports the making of an interim order in all the circumstances.

Consideration

Section 23(2a) - Jurisdiction

20      It was common ground that the matter before the Commission concerns the respondent’s refusal to employ Mr Buttery. This is not a case alleging unfair dismissal. There is no doubt that in the general run of cases, a refusal to employ constitutes an industrial matter for the purposes of ss 7 and 23(1) of the Act and the Commission has the jurisdiction to deal with such matters: The Board of Management, Princess Margaret Hospital for Children v The Hospital Salaried Officers Association of WA (Union of Workers) (1975) 55 WAIG 543; RGC Mineral Sands Ltd and Anor v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch and Ors (2000) 80 WAIG 2438; BHP Billiton.

21      By s 23(1) of the Act, the Commission has jurisdiction to “enquire into and deal with any industrial matter”.  However, this is expressly “Subject to this Act”. The relevant qualification for present purposes is s 23(2a).  Section 23(2a) of the Act provides as follows:

 (2a) Notwithstanding subsections (1) and (2), the Commission does not have jurisdiction to enquire into or deal with any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.

22      The scope of the then s 80E(7) (now s 80E(7)(b)), applicable to the Arbitrator’s jurisdiction, corresponding to s 23(2a) of the Act, was considered by the Industrial Appeal Court in Jones. In this case, Wheeler and Le Miere JJ came to the conclusion that because of the terms of s 80E(7) (or s 23(2a)) the jurisdiction of the Arbitrator (or the Commission) is excluded in its entirety in respect of a matter, where a Public Sector Standard has been prescribed and in respect of which, procedures of a kind referred to in s 97(1)(a) of the PSM Act have been prescribed. In that case, a standard dealing with “Recruitment, Selection and Appointment” had been made under s 21 of the PSM Act. In light of the existence of the Public Sector Management (Examination and Review Procedures) Regulations 2001 (WA), the jurisdiction of the Arbitrator was excluded in its entirety. The exclusion of jurisdiction did not depend on the necessity for an allegation of a breach of a Standard.

23      There exists a standard called the “Employment Standard”. In the Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2014] WAIRC 00313; (2014) 94 WAIG 581, I considered the terms of the Employment Standard and the relevant authorities. At pars 22-25 I first observed:

22 The effect of the counterpart of s 23(2a) of the Act, that being s 80E(7) of the Act, applicable to the exercise of jurisdiction by the Arbitrator, was considered in Director General Department of Justice. In that case, before the Arbitrator at first instance, was a claim by the Civil Service Association on behalf of a member Mr Jones, that he had been improperly denied an appointment to a level 7 position in the Department of Justice. The Arbitrator considered she had jurisdiction to deal with the matter and found in favour of the Applicant’s claims. The Department appealed to the Full Bench which held that s 80E(7) of the Act did not preclude the Arbitrator from dealing with the matter, despite the existence of a public sector standard dealing with recruitment, selection and appointment and procedures made under s 97(1)(a) of the PSM Act to deal with breaches of such a standard. The matter went on appeal to the Court. In dealing with the scope of s 80E(7) of the Act, when read with s 97(1)(a) of the PSM Act, Wheeler and Le Miere JJ said at pars 53-56:

The "matter" in respect of which the procedure may be prescribed pursuant to s 97(1) is the matter of the "breaching of public sector standards". In the present case, there is a standard dealing with "Recruitment, Selection and Appointment", and that is the "matter" in respect of which the procedure is prescribed. That matter having been dealt with by the prescribing of a procedure pursuant to s 97(1)(a), it would follow, in our view, that the jurisdiction of the Arbitrator is therefore excluded in respect of it.

As we understand it, the Full Bench considered that there were two reasons why s 80E(7) did not operate to exclude the jurisdiction of the Arbitrator in the present case. The first is to be found in [77] of the reasons of the President, with whom Senior Commissioner Gregor agreed. That was that the present case was not a matter "which related in any way to any Public Sector Standards, at least in the manner and in the way in which it came before and was required to be considered by the Arbitrator". That approach reads s 80E(7) as excluding the jurisdiction of the Arbitrator only where a breach of a public sector standard is the allegation made to the Arbitrator. However, the subsection is not framed so narrowly. Rather, it excludes jurisdiction in relation to any "matter" in respect of which a procedure is prescribed. That is, it excludes jurisdiction in relation to the "matter", not in relation to particular allegations. The matter in this case is the breach of a very broad standard relating to the appointment of employees.

If the Full Bench's reasoning were correct on this point, s 80E(7) on one view would never have any work to do, since the "matter" before the Arbitrator will always be an "industrial matter" as defined by the Act, being, in effect, a matter affecting or pertaining to the work of employees, rather than a matter relating directly to breach of a public sector standard. Since ss 7 - 9 of the PSM Act are so broad in their scope, it would invariably be possible to frame a claim so as to allege breach of those principles, rather than to rely directly on breach of a public sector standard. While s 80E(7) is in some respects not happily phrased, and while we acknowledge that as a matter of legal principle, it is undesirable to construe too broadly provisions which limit the right of persons to approach courts and tribunals, it seems to us that, having regard to the statutory context, s 80E(7) must be read as excluding jurisdiction in respect of a matter, wherever there is a matter in respect of which a relevant standard has been prescribed and in respect of which procedures of the type described in s 97(1)(a) have been prescribed. In this case, as we have noted, a standard has been prescribed in relation to selection and appointment, and the result of the prescription of procedures pursuant to s 97 of that standard is that the jurisdiction of the Arbitrator is excluded in relation to the whole of that "matter", regardless of the precise allegations of misconduct or unfair conduct which may be made in respect of it.

23 By the paragraph immediately above, Wheeler and Le Miere JJ concluded that there needs to be a relevant standard that has application to the subject matter of the dispute before the Commission, and, procedures have been prescribed to deal with a breach of such a standard. It is also clear from the Court’s decision, that there is no necessity for allegations of a specific breach of the relevant standard to be the subject matter before the Commission, for the Commission’s jurisdiction to be ousted. It is sufficient for the operation of ss 23(2a) and 80E(7) of the Act, that the industrial matter before the Commission, concerns the subject matter of the relevant standard.

24 Also, earlier in 1999, the Full Bench considered the same issue in the context of the then public sector standard in relation to transfers of public sector employees. In Ishmael’s case, the Full Bench heard an appeal from a decision of the Arbitrator, in which declarations were made that the Arbitrator had jurisdiction to deal with the relevant industrial matter of the alleged unfair transfer of a TAFE employee, despite the existence of a public sector standard dealing with transfers. In his decision upholding the appeal, Sharkey P (Kenner C agreeing) said at pars 32-40:

(32) If one reads s.21(1)(a) and s.97(1)(a) of the PSMA and s.80E(7) of the Act together, the “matter”, in respect of which the Arbitrator does not have jurisdiction, is whether minimum standards of merit, equity and probity have been met in relation to this case (see CSA v Perth Theatre Trust 79 WAIG 14 at 17 (FB) and Hansard, “Legislative Council Debates and Committee”, Volume 319, 16 December 1994 at page 9920), if the appellant is right.

(33) By virtue of the prescribed standards (see paragraph (13)(c) above), transfer decisions must be equitable and must take into account “the organisation’s requirement and employee needs”. Inter alia, too, there are requirements for compliance with the standard, including the following: that the movement is at a comparable classification level, that the organisation’s employees’ needs are taken into account in the transfer decision, that the employee is notified of the transfer decision and arrangements, and that decision and processes embody the principles of natural justice.

 If these requirements are breached, then there is a breach of the prescribed standard. If there is a breach of the prescribed standard, then the employee, Ms Ishmael, who complains that there is, may make a claim for review pursuant to Regulation 8 of the PSMR.

 There is a prescribed procedure to obtain relief and, further, a prescribed power to prescribe relief within the meaning of s.97(1) of the PSMA.

(34)  The applicant organisation (“the CSA”) at first instance, complained that Ms Ishmael, who was a Computer Systems Officer Level 2, had been appointed to a position located at the respondent’s Rockingham Campus, but on 6 April 1998, she was notified that she was to be transferred to another position located at the respondent’s Fremantle Campus. This seems to have been common ground between the parties.

 Her claim was that the respondent had failed to consult with her and had “adopted an oppressive and unfair usage of its right to managerial prerogative” in seeking to transfer her. In particular, in terms of the declaration sought, it was alleged that—

“(1) ...the respondent has harshly and oppressively exercised its prerogative in that it has—

(a) Failed to adequately consult with Ms Ishmael.

(b) Failed to fairly and reasonably consider the objections of Ms Ishmael.

(c) Failed to fairly and reasonably assess the systems and processes of work thereby introducing a hazardous work practice.

(2) …

(a) the respondent failed to notify the applicant as to the Introduction of Change as required by clause 49 of the Government Officers Salaries Conditions and Allowances Award 1989(sic).

(b) the respondent has attempted by vexatious means to introduce a process of work rejected by Ms Ishmael and other employees at an earlier time.

(c) the respondent has failed in its obligations as provided by sections 8, 9, 29(1)(a), 29(1)(d), s29(1)(e), s30(b), s30(c) and s30(d) of the Public Sector Management Act.

(d) the respondent failed to fairly and reasonably consider the International Labour Organisation 1981 Convention concerning Workers with Family Responsibilities.”

(See pages 7-8 (AB1)).

(35) The application plainly sought that the Arbitrator examine whether the minimum standards of merit, equity and probity had been met by the appellant in relation to the decision to transfer Ms Ishmael, there being the allegations that the appellant had acted “harshly”, “oppressively” and “unfairly”, to which I have referred above.

(36) The matter and even whether the right to transfer had been exercised harshly, oppressively, unfairly and vexatiously was a matter relating to whether the minimum standards of merit, equity and probity had been met by the appellant in relation to the decision to transfer Ms Ishmael.

(37) The matter was one at its core which the Arbitrator had no jurisdiction to hear and determine, it being plainly a matter exclusively within the preserve of the public sector standards and the procedures relating thereto. That is because a breach of these standards was alleged.

(38) It was submitted for the respondent that the correct application of the abovementioned provisions is that the Arbitrator has jurisdiction to deal with a matter relating to a transfer which does not involve a breach of the transfer standard.

 That is, of course, what s.97 of the PSMA prescribes. The section does not oust the jurisdiction conferred on the Arbitrator, otherwise, by s.80E or on the Commission by s.23(2a) of the Act.

 Further, a breach of a public sector standard occurs where one or more of the compliance requirements stipulated by the standard are not met. The transfer requirements are what determines whether there is a breach of the standard or not. The compliance requirements are the core of the standard.

(39) In my opinion, the needs of the employer and employee require that each treats the other fairly. Accordingly, that is a requirement for compliance and a component of the standard and a breach of that requirement is not within the jurisdiction of the Arbitrator. There is, however, clearly and unequivocally, having regard to the words of s.97(1)(a) of the PSMA and s.80E(7) of the Act, a jurisdiction to deal with matters relating to the transfer which does not involve a breach of the transfer standard.

(40) For those reasons, the fairness or otherwise of the appellant’s conduct in transferring Ms Ishmael would be excluded from the Arbitrator’s jurisdiction.

25 One qualification to the decision of the Full Bench in Ishmael’s case, decided by the Court in Department of Justice, is that it is not permissible for the Commission to deal with specific matters, not involving a breach of a relevant standard, that may be before the Commission. The effect of ss 23(2a) and 80E(7) of the Act is to remove the jurisdiction of the Commission and the Arbitrator completely, over the relevant subject matter of the standard.

24      Then dealing with the Employment Standard in particular, I went on to say at pars 31 to 43:

31 The standard is entitled “The Employment Standard”. This is a broad and generic heading. It is prefaced by a “Statement of Intent” in the following terms:

Statement of Intent

This Commissioner’s instruction (CI) establishes the minimum standards of merit, equity and probity to be complied with by the employing authority of each public sector body when filling a vacancy.

32 A further heading “Reference” then says:

Reference

When making employment decisions and exercising employment powers and functions the employing authority of each public sector body and its employees must comply with the minimum standards of merit, equity and probity established by the Commissioner under the Employment Standard, set out below, and the CI on Filling a Public Sector Vacancy. This requirement is in addition to compliance with the PSMA (particularly section 8(1)(a), (b) and (c), section 8(3) and section 9), the Western Australian Public Sector Code of Ethics and other relevant legislation. Supporting information produced by the Public Sector Commission may assist the employing authorities of public sector bodies fill vacancies. Such material is explanatory and does not form part of the legislative framework. A list of products is available at the end of this CI.

33 The body of the standard then appears under the heading “The Employment Standard” and it provides as follows:

THE EMPLOYMENT STANDARD

(EFFECTIVE ON AND FROM 21 February 2011)

The Employment Standard applies when filling a vacancy (by way of recruitment, selection, appointment, secondment, transfer and temporary deployment (acting)) in the Western Australian Public Sector.

The Employment Standard requires four principles to be complied with when filling a vacancy:

Merit Principle

The Western Australia Public Sector makes employment decisions based on merit. Merit usually involves the establishment of a competitive field.

In applying the merit principle a proper assessment must take into account:

• the extent to which the person has the skills, knowledge and abilities relevant to the work related requirements and outcomes sought by the public sector body; and

• if relevant, the way in which the person carried out any previous employment or occupational duties.

Equity Principle

Employment decisions are to be impartial and free from bias, nepotism and patronage.

For secondment the employee consents.

For transfer employment conditions are comparable.

Interest Principle (applies to secondments, transfers and acting)

Decisions about an employee’s secondment, transfer or acting take account of the employee’s interests and the work related requirements of the relevant public sector body.

Transparency Principle

Decisions are to be transparent and capable of review.

34 A section then follows, called “Terminology”. It contains a number of defined terms. The defined terms include that for “Competitive Field”:

Competitive Field:

A field which includes more than one person who meets the requirements of the vacant position; competitive fields are generally achieved through the advertising of a vacancy.

35 Next is a definition of “Transfer” which appears as follows:

Transfer:

The permanent movement at the same classification level. Transfers occur in accordance with the employment standard, industrial awards and agreements or other applicable legislation.

36 Furthermore “Vacancy” is defined as follows:

Vacancy:

A vacant post, office or position within the public sector. A vacancy can result from the creation of a new office, post or position or by the temporary or permanent movement of another employee.

For redeployment purposes a vacancy is defined as all offices, posts or positions, newly created, recently vacated or to be filled on a temporary basis in excess of six months.

(My emphasis)

37 Accompanying the Employment Standard, in materials prepared by the Public Sector Commission, are attached “Questions and Answers”. They are described by the Public Sector Commission as “practical information to assist public sector bodies and their employees to understand and apply the Commissioner’s Instruction: The Employment Standard”. It is clear they do not form part of the standard. Throughout the question and answers, reference is made to “vacancies” and the “filling of vacancies” by public sector bodies, in explaining the application of the Employment Standard and its requirements.

38 It is trite that in construing the terms of an instrument, it should be considered as a whole. The meaning of each provision of the Employment Standard is to be considered in the context of its purpose and object, gathered from its provisions read in their entirety. It is also clear from s 21 of the PSM Act, that a public sector standard has the status of delegated legislation and should therefore be interpreted in accordance with accepted canons of construction that apply to legislative instruments generally.

39 In the first paragraph of the Employment Standard, set out above, it commences with the words “The Employment Standard applies when filling a vacancy …”. This is repeated in the second paragraph. The reference to “filling a vacancy” is reaffirmed in the definition of “Employment Standard” in the terminology section. Under the heading “Merit Principle” is a reference to “a competitive field”, as the preferred approach to merit based employment decisions. The first dot point requires some consideration of the employer, in applying this principle, to have regard to the “outcomes sought” by the public sector body and the “work related requirements”. These references can only sensibly be understood as referring to the requirements of a vacant position sought to be filled by the employer.

40 Next, is reference to the “Equity Principle”, which suggests that in filling a vacancy, an employer is required to avoid any circumstance that may suggest favouritism and, in the case of a transfer to a vacant position, the position occupied by the person to be transferred is to be comparable with the position into which he or she is to be transferred. The next heading “Interest Principle” is seemingly confined to secondments, transfers and acting appointments. It requires some consideration of the particular interests of the transferee, and the particular features or aspects of the job that needs to be filled. The overall sense of this provision seems to be directed towards some matching of the transferee’s interests with the requirements of the position into which they may be transferred.

41 Apart from the terms of the Employment Standard itself, the preamble to it, which I have set out above, makes clear its scope of application. The limits of its operation are further marked out. As noted, the “Statement of Intent”, makes it plain that the standard applies to “filling a vacancy”. The fact that the Employment Standard repeals and replaces the “Recruitment, Selection and Appointment Standard”, is a strong indicator, read with the rest of the standard, that it has application to various methods by which vacancies in the public sector may be filled.

42 Under the heading “Reference”, the public sector body, in addition to complying with the Employment Standard, is also required to comply with the “CI on Filling a Public Sector Vacancy”. It goes without saying that other statutory obligations set out in the PSM Act will also apply. Further reference is made to other supporting information published by the Public Sector Commission in relation to assisting public sector bodies fill vacancies. Also, importantly, a “Vacancy” is specifically defined, as set out above. It plainly means a vacant or unoccupied post, position or office that is required to be filled.

43 When an analysis of the Employment Standard is undertaken as set out above, the conclusion is compelling, that on its ordinary and natural meaning, the standard is a legislative instrument, directing public sector bodies that where they need to fill a vacancy in their organisation, they are obliged to do so in the manner set out in the Employment Standard…

25      In addition to the Employment Standard, there exists the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA). These Regulations provide for a procedure whereby a person may complain of a breach of a public sector standard by an employing authority, arising from a “reviewable decision”. A “reviewable decision” is one made by an employing authority, “as a result of the completion of a process to which a public sector standard applies”. 

26      Therefore, on the face of it, if a matter before the Commission concerns “the filling of a vacancy (by way of recruitment, selection, appointment, secondment, transfer and temporary deployment (acting) in the WA Public Sector”, then by s 23(2a) of the Act, the Commission is deprived of jurisdiction to enquire into and deal with such a matter. The question therefore in this case, is whether properly characterised, the applicant’s claim on behalf of Mr Buttery, is such a matter.

27      The application to the Commission under s 44 of the Act, notified a dispute between the applicant and the respondent in relation to a “refusal of the respondent to reinstate or to re-employ Mr Justin Wilson-Buttery [‘Mr Buttery’] – a teacher employed by the respondent for approximately 10 years, from 2006 up to the 11 November 2016 – the last six of which as a primary school teacher at Greenfields Primary School [‘GPS’]”. The applicant contended that the refusal by the respondent to reinstate or re-employ Mr Buttery was harsh, oppressive and unjust. As mentioned earlier, the s 44 application arose as a consequence of a decision by the respondent of 11 November 2016, to dismiss Mr Buttery, because of an Interim Negative Notice issued to him on 8 November 2016, itself arising from the laying of a charge of assault against Mr Buttery on 31 October 2016, following an earlier incident with a year 4 student in August 2016. At the same time, the respondent marked Mr Buttery’s employment record as “will not be able to be further employed with the Department by reason of Interim Negative Notice” and “not suitable for re-hire in child related work”.

28      As also mentioned above, on 25 November 2016, a disciplinary process, previously commenced by the respondent as a consequence of the incident, was discontinued. On 21 December 2016, as a result of representations by the applicant, Mr Buttery’s working with children card was returned to him. Subsequently, on 4 January 2017, the Teacher Registration Board informed Mr Buttery that his teacher registration had also been restored. Therefore, as at the time of the commencement of the s 44 proceedings, on 21 February 2017, there was no legal impediment to Mr Buttery working as a teacher in a school.

29      On 23 December 2016, two days after the return of his teacher registration, the applicant wrote to the respondent and said that in view of the matters referred to above, it requested on Mr Buttery’s behalf, that he be re-employed by the respondent. On 16 January 2017, Mr Gillam on behalf of the respondent, replied to the applicant’s request and advised that the respondent would not re-employ Mr Buttery. In the letter to the applicant, Mr Gillam said as follows:

Mr Buttery is facing a charge of Common Assault under the Criminal Code (WA) and therefore it would be inappropriate to comment further on this matter whilst it is before the Court. Irrespective of the outcome of that charge the Department retains the power to investigate the alleged incident as a breach of discipline pursuant to the provisions of the Public Sector Management Act 1994. Notwithstanding the fact Mr Buttery's Working With Children card has been reinstated the Department is not prepared given all of the circumstances to re-employ Mr Buttery.

30      It is clear from this letter that the respondent’s refusal to re-employ Mr Buttery related to both the circumstances of the then pending criminal charges and the possibility of disciplinary proceedings being commenced against him. No other reasonable construction is open. No other circumstances are referred to.

31      Similarly, following further representations by the applicant on behalf of Mr Buttery, Mr Gillam again on behalf of the respondent, and largely for the same reasons as set out in his earlier 16 January 2017 letter, by further letter of 3 February 2017, refused to agree to re-employ Mr Buttery. The letter of 3 February 2017 provided as follows:

I refer to your letter dated 24 January 2017 in which you make further submissions on behalf of Mr Justin Buttery. While it is accepted Mr Buttery's Working with Children card and registration with the Teachers' Registration Board of WA have both been reinstated, the Department of Education (the Department) is still unwilling to re-employ Mr Buttery.

Mr Buttery is still facing a charge of Aggravated Common Assault involving a student of this Department. It is acknowledged that Mr Buttery has pleaded not guilty and the matter remains before the Court.

As acknowledged by you, the issuing of an Interim Negative Notice resulted in Mr Buttery's contract of employment lawfully coming to an end. Consequently there is no compulsion on the Department to re-employ or reinstate Mr Buttery despite the arguments made by you on his behalf. It is the Department's discretion as to whom it wishes to employ and its position remains unchanged in that it is not prepared to re-employ or reinstate Mr Buttery given the current circumstances.

32      Both of these letters from the respondent refusing to re-employ Mr Buttery, are largely confirmed by the affidavit of Mr Milward, an investigator employed by the respondent, having carriage of the present disciplinary investigation. This was in response to a further request by the applicant by letter dated 20 June 2017, for the respondent to re-employ Mr Buttery. Mr Milward, when referring to the respondent’s refusal to further re-employ Mr Buttery, said that the decision to not re-employ Mr Buttery was based on current information held by the respondent and his unsuitability for employment in his former role because of his “unnecessary and inappropriate physical contact with a year four student”. This further refusal to re-employ was despite the disciplinary proceedings being still underway, although seemingly close to a conclusion. Mr Milward referred to Mr Buttery’s vacant position being filled by a fixed term 12-month contract, effective from 2 February 2017. It is not contentious that the facts giving rise to those disciplinary proceedings, are in dispute.

33      Mr Buttery’s removal as a teacher on 11 November 2016 was as a consequence of s 22 of the WWC Act. There is no doubt that the reason the respondent dismissed Mr Buttery was because of the effect of this provision. To continue Mr Buttery in child-related work would subject the respondent to a very substantial penalty. It is clear that the applicant has brought the s 44 application it has, alleging an “unfair refusal to re-employ” because, by reason of the exception in s 41(3) of the WWC Act, an unfair dismissal claim cannot be made to the Commission, if the elements of pars (a), (b) and (c) of s 41(3) are met, which they no doubt are in this case: Brett v Sharyn O’Neil, Director General, Department of Education [2015] WASCA 66; (2015) 95 WAIG 429. The relevant “reason” for the purposes of s 41(3)(b) of the WWC Act, is the subjective reason of the employer: Brett at pars 22-26. There is no doubt from the correspondence before the Commission, that the respondent’s actual reason for Mr Buttery’s dismissal on 11 November 2016, was the issuance of the Interim Negative Notice.

34      There is no evidence before the Commission, that Mr Buttery has applied to join a recruitment pool for a possible position as a teacher. However, on two occasions material to the s 44 application, and prior to it being made, the applicant has sought on Mr Buttery’s behalf, that he be re-employed by the respondent as a teacher. The requests that he be re-employed, related to his former teaching position. There is no evidence before the Commission, or an allegation made, that Mr Buttery participated or was required to participate in a merit selection process, in relation to “the filling of a vacancy”.  The terms of the Standard are intended to be read with and understood as part of procedures for filling vacancies in the public sector. Not only is the respondent required to comply with the PSM Act, but also a further standard “Filling a Public Sector Vacancy”, as a part of the process.         

35      Whilst each case will turn on its own facts, the respondent referred to the circumstances before the Commission in State School Teachers’ Union of WA (Incorporated) v Director General, Department of Education. In that case, the applicant brought proceedings before the Commission under s 44 of the Act on behalf of its member, Mr Appleton, in relation to the Department’s refusal to employ him. The Union sought to have removed from Mr Appleton’s employment record “any notations/caveats from the employment file of Mr Appleton and reinstate his Teacher Identification Number”. The background circumstances were Mr Appleton had been employed as a teacher on numerous fixed term contracts in the period 1990 to 2009.  In February 2010, as a result of being charged with assault against a student, Mr Appleton received a notation on his employment record that any future employment sought by him was to be referred to the respondent’s Standards and Integrity Directorate. Additionally, Mr Appleton’s teacher identification number with the respondent was cancelled. Subsequently, the criminal proceedings against Mr Appleton were dismissed.

36      Sometime later, in November 2014, Mr Appleton again sought employment with the respondent as a teacher. This was in response to advertisements for suitably qualified teachers to apply to be appointed to a teacher appointment pool.  Mr Appleton’s application was plainly a part of that recruitment process. His application did not progress and was ultimately rejected by the respondent for the reasons mentioned earlier. 

37      In referring to the Jones case, in which Mr Jones sought employment, had been interviewed by a selection panel and was considered the best candidate for appointment, Beech CC, in response to a submission on jurisdiction, held that the Employment Standard had been prescribed and that the Commission’s jurisdiction was excluded, as to the whole matter of selection and appointment, irrespective of the particular allegations made by Mr Appleton. It was held that Mr Appleton applied for employment and the respondent refused his application.  Beech CC distinguished the circumstances of the case before him to those before the Commission in SSTU of WA v Director General, Department of Education [2014] WAIRC 00753; (2014) 94 WAIG 1469. In that case, Mr Munforti similarly had a notation on his employment record and the issue before the Commission in those proceedings, is whether the respondent’s action in making the notation was fair and reasonable and whether it constituted a penalty against him. There was no evidence in that case that Mr Munforti had sought employment with the respondent and had that employment request refused, or other circumstances existed that might have enlivened the terms of the Standard.

38      In the present case, there is plainly a dispute between the applicant and the respondent as to the re-employment of Mr Buttery, as a consequence of the termination of his employment resulting from s 22 of the WWC Act. As outlined above, given that the criminal charges were discontinued and Mr Buttery’s teacher registration restored, the applicant maintains that it was unfair for the respondent to not re-engage Mr Buttery in the respondent’s teaching workforce, in all of the circumstances. On two occasions, prior to the present application, the applicant on Mr Buttery’s behalf, sought that he be re-employed. Because of the circumstances arising from his former employment, and the incident with the year 4 student, the respondent declined to do so. The dispute concerns a refusal to employ. The respondent has plainly made a decision that it does not wish to employ Mr Buttery any further.

39      The applicant characterizes the claim as one based on fairness and harshness and contends that s 23(2a) is not engaged. The applicant alleges in its particulars of claim, amongst others, that the respondent failed to apply “due process” and to afford Mr Buttery a right of reply before taking the action they did; failed to have regard to all of the circumstances of Mr Buttery; failed to have any proper regard to Mr Buttery’s employment record; failed to have regard to the fact that the circumstances leading to the s 22 WWC Act decision no longer applied; and acted generally in an unfair and unjust manner. The applicant further complains that the respondent has not properly taken into account the way in which Mr Buttery has carried out his duties in his former teaching position. This is in the context of the alleged unfairness and harshness of the respondent’s actions against Mr Buttery, rather than in any sense connected to the merit principle in the Standard.

40      Despite repeated requests, the respondent has declined to employ Mr Buttery. There is no suggestion in this case of a competitive field for appointment in which Mr Buttery was required to, or would be required to participate in, which would be normally expected. There is no necessity, as established by the decision of the Court in Jones, for there to be a particular allegation of a breach of the Standard. However, properly characterised, and taken in context, the present matter before the Commission is not one dealing with the filling of a public sector vacancy, in the sense in which I have attempted to outline it. Ultimately, the matter before the Commission concerns an industrial dispute between the applicant and the respondent, in relation to an industrial matter concerning the fairness of Mr Buttery’s removal as a teacher from his school and the refusal of the respondent to re-employ him. On any view of this case, the circumstances of his removal and the claim for re-employment, are inextricably linked. The circumstances before the Commission in both Jones and Appleton are distinguishable. The Commission’s jurisdiction is not excluded, given the terms of s 23(2a) of the Act, as explained and applied by the Industrial Appeal Court in Jones.

41      I will now consider the contentions of the parties as to the powers of the Commission under s 44 of the Act to make an interim order of re-employment, in the circumstances of the present case.

Interim order power

42      In this application, as opposed to the earlier application before Matthews C, no reliance is placed by the applicant on s 44(6)(ba) of the Act to support the making of an interim order. Rather, reliance seems to be placed by the applicant on s 44(6)(bb) and possibly (c).  These provisions relevantly provide as follows:

(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may —

…

  (bb) with respect to industrial matters —

 (i) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act; and

 (ii) without limiting paragraph (ba) or subparagraph (i), in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;

  and

  (c) exercise such of the powers of the Commission referred to in section 27(1) as the Commission considers appropriate.

43      This is not a case of unfair dismissal and therefore the interim order power in s 44(6)(bb)(ii) has no application. Thus, the legislative history of s 44(6)(bb)(ii) and the Explanatory Memorandum in relation to the amendments to the Act, reflecting its introduction, do not necessarily assist in the resolution of the present question. However, to the extent the reference can be made to these matters, it is clear that Parliament intended to expand the Commission’s powers in s 44 conference proceedings, by providing the Commission with an additional and specific power to make an interim order in the particular circumstances of an unfair dismissal claim. Such an additional power, adopting accepted canons of statutory construction, is not to be read as in any way derogating or otherwise diminishing the broad powers conferred on the Commission under s 44 to “deal with” an industrial matter referred to it. So much is clear by the reference in s 44(6)(bb)(ii) to “without limiting paragraph (ba) or subparagraph (i)”. This may be out of an abundance of caution by Parliament however. On the other hand, the further contention may be advanced that if s 44(6)(bb)(i) of the Act is as broad as the applicant contends, then the introduction of s 44(6)(bb)(ii) would have been unnecessary. 

44      It is trite that the Commission’s powers under s 44 exercisable at or in relation to a compulsory conference, are not to be read down and are to be construed broadly. The Full Bench has also held repeatedly, that s 44 orders by their nature, are interim, and are not to be made as a final disposition of matters in dispute:  The Registrar v AMWU (1989) 69 WAIG 1904; Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union, Western Australian Branch. Thus, in the search for statutory support for the powers said to be relied on in this case, one does not necessarily need to find specific reference in the Act to “interim”, as set out in the respondent’s written submissions. 

45      It seems clear enough that by the inclusion of s 44(6)(c), empowering the Commission to exercise s 27(1) powers as it considers appropriate, that the powers of the Commission under s 44(6)(bb)(i) relate to other than s 27(1), otherwise s 44(6)(c) would be otiose and have no work to do. In any event, to the extent that the appellant seeks to rely on s 27(1)(o) of the Act, or any other s 27(1) power for that matter, such powers are procedural and not substantive in nature, and would not support an interim order in the terms sought in this case: Robe River Iron Associates v Federated Engine Drivers’ and Firemen’s Union of Workers of Western Australia (1986) 67 WAIG 315 per Brinsden J at 317 and Kennedy J at 319.

46      An indication as to the breadth of the powers available to the Commission in s 44 conference proceedings is revealed by s 44(6a). By par (b) an order under s 44(6)(ba) or (bb) (which must mean (bb)(i)), may vary an award or an industrial agreement. Again, such a power is intended to be for the purposes of conciliation and therefore of an interim or temporary nature and not grant final relief.

47      It is also trite to observe that the Commission has no inherent powers. For an order, in the nature of a mandatory injunction, to require a party to do something, as in the present case, in my view would require an express power to support it:  R v Forbes; Ex parte Bevan (1972) 127 CLR 1; Robe River Iron Associates per Kennedy J at 318 and 319. As was said by Kennedy J in the Robe River case, when commenting on the inability of s 27(1)(v) of the Act to support an interim order in the nature of retaining the status quo in an industrial dispute “to hold otherwise would be to give the Commission a very great scope for making coercive interim orders without any firm criteria and without the special procedures required by section 32(4) in the case of orders under section 32(3)(c)(i)”. The former s 32(3)(c)(i) was in largely the same terms as the current s 44(6)(ba)(i) of the Act.

48      The language of s 44(6)(bb)(i), which is in the same terms as s 32(8)(b) of the Act, is in my view, in the nature of a “catch-all” provision, referring to the ability of the Commission in s 44 conference proceedings to issue a direction, order or declaration, the source of which is found elsewhere in the Act. The language of the provision is not limited to the making of “orders”, but includes “direction” and “declaration” also. It is plainly not a source of power in and of itself. So much is clear from the plain language of the provision. Whilst not wanting to in any way limit the scope of the s 44(6)(bb)(i), it would appear that, the Commission may at or in relation to a conference deal with matters and exercise powers in relation to, as examples, evidence under s 33, (subject to s 33(6)) and disputes as to right of entry and inspection under Division 2G. There are no doubt others.    

49      Whilst the applicant referred to s 23(1) of the Act in relation to the Commission’s jurisdiction to enquire into and deal with an industrial matter, such jurisdiction, as noted earlier, is “Subject to this Act”. In my view, s 23(1) it is not an unfettered power available to the Commission to do anything that it considers appropriate in a given case. An obvious qualification in this matter, is s 23(2a) of the Act. The express terms of s 44 of the Act are also a qualification: The Registrar v AMWU. That is, at or in relation to a conference convened under s 44, the Commission has the conciliation powers set out and where no agreement is reached, the Commission may, under s 44(9), refer the industrial matter for arbitration and make appropriate orders.

50      Parliament has conferred express powers on the Commission to make orders in the nature of the preservation of the status quo as in s 44(6)(ba) and (bb)(ii) of the Act. The applicant, as I have indicated at the outset of these reasons, has not sought to rely upon, and in any event, has not established any circumstances to enliven the power available to the Commission in s 44(6)(ba).  Section 44(6)(bb)(ii) does not have application in this case. In my view, given the nature of the interim order of re-employment sought in this matter, and the consequences for the respondent, there would need to be an express power in the Act to support such orders, setting out the criteria for the exercise of the power. The applicant has not been able to identify any express power available to the Commission, elsewhere in the Act, to authorise and support an interim order, as sought on behalf of Mr Buttery.

Conclusions

51      For these reasons, I do not consider the Commission has the power under s 44(6)(bb)(i) of the Act to make the interim orders sought by the applicant in this case. The application for interim orders must be dismissed