DISPUTE RE ALLEGED UNFAIR TREATMENT OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2019 WAIRC 00644

DELIVERED : Thursday, 15 August 2019

FILE NO. : PSAC 12 OF 2019

Applicant

AND

Department of Education

Respondent

Catchwords : Industrial Relations Law (WA) - Application for interim relief under s 44 of the Industrial Relations Act 1979 - Application considered - No power to support granting of interim orders - Alternatively no basis for an interim order on the merits - Commission should not interfere with disciplinary process unless action commenced is obviously baseless - Application dismissed

Legislation : Industrial Relations Act 1979 (WA)

  Public Sector Management Act 1994 (WA)

Result : Application dismissed

Counsel:

Applicant : Mr M Amati

Respondent : Mr R Andretich of counsel

Case(s) referred to in reasons:

The Director General, Department of Education v State School Teachers’ Union [2011] WAIRC 00058

State School Teachers’ Union v The Director General, Department of Education (2017) 97 WAIRG 1497

Civil Service Association v Director General of Department for Community Development (2002) 82 WAIRG 2845

Reasons for Decision

Ex Temporé

1         There is a s 44 application by the Civil Service Association on foot that is application PSAC 21/2019.  That application relates to a dispute in relation to the suspension with pay of the union’s member, Mr Pinto, pending a direction that Mr Pinto retire on the grounds of ill health in accordance with s 39 of the Public Sector Management Act. The matter was initially heard in conference by the Commission otherwise constituted. The applicant challenges the respondent’s decision to suspend Mr Pinto and says that the suspension was not lawful and did not involve a fair process, amongst other contentions.

2         The respondent on the other hand says that the suspension of Mr Pinto on full pay pending the outcome of the s 39 Public Sector Management process is lawful and is also appropriate because of the respondent’s concern that for Mr Pinto to remain in the workplace, may be detrimental to his health and also the operations of the Department, based on the medical advice to the respondent in accordance with the materials before the Commission.

3         Resulting from the s 44 compulsory conference, the applicant Association seeks an interim order for Mr Pinto to be returned to his workplace. I should indicate that the substantive application filed on 19 June 2019 in terms of the grounds provides, after reference to introductory matters, that the application deals with specifically a purported directive found in the same letter to suspend Mr Pinto with pay, and the issue arising in the application as set out in the relief sought is firstly “that the respondent reconsider its refusal and allow Mr Pinto to return to his workstation or alternatively an order is sought from the Commission for the respondent to do so.”

4         Both the parties have filed detailed written submissions in relation to the interim order application that refer to grounds in support of the application, Mr Pinto’s employment history and specifically, his medical issues and medical reports in relation to his fitness for work and the reasons that the respondent has commenced the retirement on ill health grounds process under s 39 of the PSMA.

5         Section 39 of the PSMA provides in subsection (1) that:

“A public service officer may retire or an employing authority may call upon a public service officer to retire from the Public Service on the grounds of ill health.”

6         Subsection (2) then provides that:

“A public service officer who is called on to retire from the Public Service under subsection (1) shall forthwith so retire.”

7         I have read the materials and the submissions and considered carefully that material. Additionally, the proceedings have been listed this afternoon for the Commission to hear oral submissions in connection with the interim order application, which submissions I have carefully taken into account as well.  I should also add that on 8 August 2019 the applicant Association filed further written submissions setting out how, in its view, an interim order may be supported under s 44 of the Act, in the circumstances of this case. The applicant in its submissions refers to a decision of the Full Bench in the matter of The Director General, Department of Education v State School Teachers’ Union [2011] WAIRC 00058 in which it was found that in relation to an employee not claiming unfair dismissal, s 44(6)(ba) did not support the making of an interim order, on the facts of that particular case.

8         Seemingly, as the Commission understands it and as seems to have been confirmed in oral submissions this afternoon, the applicant relies upon s 44(6)(ba) of the Act but says that subpars (i) and (ii) are not applicable.  It seeks to rely upon subpar (iii) to support the making of an interim order. The terms of s 44(6)(ba)(iii) provide, and I will also cite the introductory part:

“With respect to industrial matters the Commission may give such directions and make such orders as will in the opinion of the Commission…(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question.”

9         In the earlier submissions of the Association there also seemed to be some reliance on s 44(6)(bb) although the present claim is not, as I have said, a claim of unfair dismissal.  I think the applicant now accepts that it cannot rely on s 44(6)(bb)(ii) in those circumstances.  Also, for the reasons that I expressed in an earlier decision of the Commission in State School Teachers’ Union v The Director General, Department of Education (2017) 97 WAIG 1497, the citation of which has been provided to the parties for this afternoon’s purposes, the other powers contained in s 44(6)(bb) especially subpar (i), do not provide any independent head of power to support an interim order in s 44 conference proceedings and I do not depart from that view.

10      Section 44(6)(ba)(iii) is a part of the Commission’s broad s 44 powers which enables the Commission to do things in the course of an industrial dispute, dealt with by the Commission in a compulsory conference. In my view subpar (iii) of s 44(6)(ba) makes it clear on its plain language, that it is concerned with the Commission’s powers to require the parties to exchange information or to divulge their views in relation to the matters in dispute, as an aid in the resolution of a particular industrial dispute. This may include for example, the production of documents or other materials.  It may also include the exchange of statements of position on a matters, to reveal a party’s position on an issue(s). There are many other examples in my view, which would be caught by this provision.

11      Whilst the s 44(6)(ba) powers are broad and should not be read down, I cannot see any connection between the terms of s 44(6)(ba)(iii) and the return of Mr Pinto to the workplace to restore the status quo, pending the outcome of the s 39 PSMA process.  Such a proposed order has little to do with the exchange or divulging of information or attitudes and, is, in effect more in the nature of a mandatory injunction, overturning the current suspension.  As I have said, in the case to which I have just referred involving Mr Buttery in the interim order application, there needs to be able to be identified a specific power for such an order and with defined criteria for its exercise.  As no head of power under s 44 of the Act is available to support the interim order sought by the union in this case, given that s 44(6)(ba)(i) and (ii) are not relied on, in my view there are significant difficulties in the applicant obtaining an interim order on this occasion, as a matter of jurisdiction and power.

12      Even if my view as to the power under s44(6)(ba)(iii) is incorrect, I fail to see on what is before the Commission that such an order would “encourage the parties to exchange or divulge attitudes or information which would assist … in the resolution of the matter in question” when, as the respondent rightly points out, “the matter in question” as identified in the s 44 application is, in terms of the relief sought, the return to work of Mr Pinto whilst the s 39 PSMA process takes its course.  Therefore, in any event, the interim order sought is in fact the same as the final relief sought in the s 44 application, which in my view is a further basis for any such purported interim order to be beyond power.

13      Additionally, the Commission has now been informed that by letter dated 7 August 2019, the respondent has written to Mr Pinto informing him of the commencement of disciplinary matters by way of an investigation under s 80 of the PSMA by reason of his refusal, as I read the letter, to retire on the grounds of ill health.  As a part of this process under s 82 of the PSMA the respondent has now suspended Mr Pinto on full pay for the duration of the disciplinary investigation, as the letter sets out.  I note also that in accordance with the letter at the top of page 2, Mr Pinto has 10 business days to respond to his suspension which, on my reckoning, is by 21 August 2019.

14      Therefore aside from the abovementioned matters as to jurisdiction, power and merit, as a formal disciplinary process has now commenced, I think it is only appropriate that the disciplinary process take its course given that Mr Pinto of course, as I indicated to the parties, retains all of his rights to challenge the outcome either in person or through the applicant Association.  In this regard too, I also note the observations of the Industrial Appeal Court in The Civil Service Association v Director General of Department for Community Development (2002) 82 WAIG 2845 that generally, the Commission should not interfere in disciplinary procedures under the PSMA unless the action so commenced is obviously baseless.  In my view there is nothing before me that would indicate that to be the case.  As also indicated to the parties in the hearing, the Commission’s views as to whether an interim order should be made should not be taken as any reflection on whether final orders should be made, in the event of a more general challenge being brought by Mr Pinto to the respondent’s actions.

15      Accordingly, for the foregoing reasons, the application for an interim order is dismissed.