APPEAL AGAINST THE DECISION TAKEN BY THE EMPLOYER ON 30 JUNE 2018

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00476

DELIVERED : MONday, 23 August 2021

FILE NO. : PSAB 17 OF 2021

Appellant

AND

Economic Regulation Authority

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Jurisdiction –Meaning of “decision” – Whether decision “in relation to” interpretation of PSMA provision – “conditions of service” – Appeal dismissed

Legislation  : Health Services Act 2016 (WA)

Industrial Relations Act 1979 (WA)

Industrial Relations Commission Regulations 2005 (WA)

Occupational Safety and Health Act 1984 (WA)

Public Sector CSA Agreement 2019 (WA)

Public Sector Management (General) Regulations 1994 (WA)

Public Sector Management Act 1994 (WA)

Public Service Award 1992 (WA) 

Result : Appeal dismissed

Representation:

Appellant : Mr J Cross, on his own behalf

Respondent : Mr R Andretich, of counsel

Case(s) referred to in reasons:

Australian Tramway Employees Association v Prahran and Malvern Tramway Trust [1913] HCA 53; (1913) 17 CLR 680

Chan v The Nurses Board of Western Australia [2007] WASCA 123

City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120

Coe v Department of Education [2021] WAIRC 00141; (2021) 101 WAIG 422

D & M Amonini Pty Ltd v Neirin Pty Ltd [2016] WASC 157

Dehnel v Dr Neale Fong, Director General, Department of Health [2006] WAIRC 05677; (2006) 86 WAIG 3310

Director-General of Education v Suttling (1987) 162 CLR 427; (1987) 69 ALR 193

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Grove v Grove [2016] WAIRC 00179; (2016) 96 WAIG 343

Howle v Best [2012] WASC 62

JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16

Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817

Nordland Papier AG v Anti-Dumping Authority [1999] FCA 10; (1999) 93 FCR 454

O’Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356

R v Booth; Ex parte Administrative & Clerical Officers Association [1978] HCA 14; (1978) 141 CLR 257; (1978) 19 ALR 464

Ross v Mr Peter Conran, Director General Dept of the Premier and Cabinet [2011] WAIRC 00955; (2011) 91 WAIG 2261

Simonsen v Legge [2010] WASCA 238

Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) & others (1986) 67 WAIG 466

Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283

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

Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510

Reasons for Decision

Introduction

1         Before the Public Service Appeal Board (“Board”) can take any steps to progress this appeal, it must first determine that the appeal is within its jurisdiction: Dehnel v Dr Neale Fong, Director General, Department of Health [2006] WAIRC 05677; (2006) 86 WAIG 3310. For the reasons that follow, the Board does not consider it has jurisdiction. The appeal must therefore be dismissed.

2         The appellant, Jeremy Cross, is employed by the Economic Regulation Authority (“ERA”) as a Level 7 Project Manager. This is a role he has held since about January 2018. When he accepted the role, it reported to one of the ERA’s Executive Directors. Not long after he commenced, the ERA changed its organisational structure so that Level 7 employees reported to a Level 8 employee. Subsequent to this change, Mr Cross experienced various difficulties at work which led to his health deteriorating. He became unfit for work, and made a workers compensation claim.

3         The reporting structure change was effected across all Level 7 employees. Mr Cross was not “singled out”.

4         It should also be noted, as the ERA’s counsel emphasised during the hearing, that Mr Cross’s capabilities and performance have never been in issue, and his work is very well-regarded by the ERA.

5         Mr Cross’s appeal in these proceedings:

(a) purports to be an appeal under s 80I(1)(a) of the Industrial Relations Act 1979 (WA) (“IR Act”), that is, an appeal by a public service officer against a decision of the employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994 (WA) (“PSMA”) or the regulations made under it, concerning the conditions of service of public service officers; and

(b) was filed outside the 21-day time limit specified by Reg 107 of the Industrial Relations Commission Regulations 2005 (WA) (“IRC Regulations”) for commencing an appeal of the present kind.

6         The decision against which Mr Cross is appealing is identified in his application as a decision made on or about 30 June 2018 (“the Reporting Structure Decision”). In the course of the hearing, it emerged that Mr Cross was also appealing a second decision made “on or soon after” 15 June 2021: see Appellant’s Statement and Submissions at [32] (“the Settlement Proposal”). His appeal was filed on 1 July 2021, that is, some three years after the Reporting Structure Decision was made, and more than two and a half years after he was formally notified of the Reporting Structure Decision.

7         If the Settlement Proposal is a decision from which an appeal is available, the appeal is within time and no extension is required for that part of Mr Cross’s appeal.

8         The background to the Reporting Structure Decision is, briefly, that Mr Cross applied for and accepted a Level 7 role with the ERA some time around January 2018. He says the role was advertised as reporting to an Executive Director. There is no dispute that the role did report to an Executive Director when he commenced in it. The reporting structure was subsequently amended, so that Level 7 employees were to report to a Level 8 employee. This decision was made by the ERA in June 2018 and communicated to Mr Cross in November 2018 by way of the provision to him of an amended Job Description Form (JDF).

9         Mr Cross describes the Settlement Proposal decision in these terms:

…[T]he appellant received a letter from the employing authority’s representative which stated “Your client will provide his voluntary resignation from his employment with the ERA”. A letter of resignation drafted by the employing authority was attached to the letter from the employing authority’s representative.

The resignation was demanded by the employing authority as a condition of its offer to settle the appellant’s claim for workers compensation in connection with an injury sustained in the workplace. It was not volunteered by the appellant and remains unsigned at the date of the hearing.

(See Appellant’s Statement and Submissions at [32] and [33]).

10      In its Response, the ERA says that the decisions appealed against are not matters within the Board’s jurisdiction. It opposes the grant of an extension of time and seeks an order that the appeal be dismissed.

11      Accordingly, the Board listed the matter for hearing to determine, first, whether the appeal invoked the Board’s jurisdiction and second, if it was within the Board’s jurisdiction whether to grant an extension of time within which to appeal.

12      Mr Cross was self-represented at the hearing. The issues in his case involve a fair degree of complexity. He provided the Board with succinct, clear and well-constructed written submissions in the form of a Statement by him which he spoke to at the hearing. He demonstrated a good understanding of the relevant legislation. Mr Cross’s submissions greatly assisted the Board in understanding the relevant facts, issues and his arguments.

Evidence

13      Neither party led oral evidence for the purpose of the hearing. A string of emails concerning the Reporting Structure Decision dated 4 November 2020 to 9 November 2020 was received into evidence (Exhibit 1), as was a medical report of Dr Frederick Ng, Consultant Psychiatrist dated 8 March 2021 (Exhibit 2). Mr Cross provided the Board with a written Statement which contained his evidence and submissions. He was not cross-examined on its contents.

14      Mr Cross contends that the reporting structure was a “material consideration” for him when applying for and accepting the position, having previously held a Level 8 employee in the Department of Treasury. He therefore contends that, having represented the role as having a particular reporting structure, it is unfair to him that the reporting structure be changed after he accepted the role, a tactic he described as “bait and switch”: see Appellant’s Statement and Submissions at [39].

15      Mr Cross’s evidence to the Board, in the form of his Statement and Submissions, is:

(a) the ERA was considering the possibility of a restructure at the time the offer of employment was made to him;

(b) the possibility of a restructure was raised at a general staff meeting on 3 May 2018 but staff were not invited to express views or concerns at the meeting, nor were any other options discussed, despite acknowledging the change might be accompanied by stress and anxiety: see Appellant's Statement and Submissions at [36];

(c) the Reporting Structure Decision was probably made in or about July 2018, that being the date of the amended JDF provided to him: see Appellant’s Statement and Submissions at [31]; and

(d) he was not notified of the Reporting Structure Decision until the amended JDF was given to him on 15 November 2018: see Appellant’s Statement and Submissions at [37].

16      The medical report of Dr Frederick Ng, Consultant Psychiatrist dated 8 March 2021 is addressed to Mr Cross’s workers compensation lawyers dated 8 March 2021 (Exhibit 2). Mr Cross relied on that report to demonstrate that the Reporting Structure Decision had serious adverse consequences for his health. No issue was taken that the report accurately described Mr Cross’s medical diagnosis, nor that it attributed the decline in his health to the “difficulties” that he had experienced at work. However, the report did not expressly state that the Reporting Structure Decision in and of itself was part of the “difficulties”. Rather, it appears that it preceded the difficulties. The history recounted by Dr Ng in the report is as follows:

…he said he was transferred to another group with another boss above him.

He said the CEO of the organisation also mistreated and bullied him.

The Alleged Subject Difficulties at Work

Your client summarised that the subject difficulties at work included but were not limited to being given tasks that were above his competency grade and therefore he was set up to fail.

He indicated that when he first arrived at this job, he was made to feel unwelcome, and he was told he should not be working there, and your client indicated that he was usually a high performer.

He was also given deadlines that were difficult to fulfil and also he was given wrong information which then delayed him from fulfilling the deadlines and again he was set up to fail.

He reported that his bosses raised their voices at him.

The executive director allegedly told him that his manager would publicly humiliate him and it then did occur.

He reported that the executive director told him that nobody would be promoted without the executive director’s say so.

Other managers in his organisation had told your client that they had been similarly mistreated.

Other allegations which were false, and which your client asserted were made against your client was that your client would isolate himself from his team, in other words that he would not collaborate with the team which your client said was manifestly untrue.

He reported that his high standard of work was not criticised.

In the context of all of the above from when he started working there in February 2018 until his last day sometime in October 2020, he was emotionally affected by the cumulative effects of being allegedly mistreated, the subject difficulties at work (the basis of this claim).

He then reported that when he was unable to be at work, he tried to arrange to work from home and he was stopped from doing so and it was alleged that he was not contactable when he was at home which your client said was again manifestly untrue.

…

4. Based on the history elicited, the mental status examination, having perused the documentation provided and from my clinical experience, I form the view that in the context of the plausible history of the subject difficulties at work (the basis of this claim) your client developed initially at least an adjustment disorder with mixed anxiety and depressed mood (DSM 5) and with the passage of time continuing on at work until he stopped work where he alleged being mistreated in various ways, the depressive component evolved and deepened.

…

7. From the history elicited and the available documentation, I form the view that the most significant contributing factors in materially precipitating the onset of the adjustment disorder was your client’s plausible history of the subject difficulties at work (the basis of this claim).

17      Nevertheless, Mr Cross’s evidence was that he sought meetings to discuss the Reporting Structure Decision, and to explain the detrimental impact it had had on him, on several occasions including:

(a) by way of survey feedback on 19 November 2018;

(b) a meeting with Ms Gardner on 27 June 2019;

(c) a meeting with Mr Pullella of 5 August 2019;

(d) a later undated meeting with Mr Kelly;

(e) a meeting with Mr Fernandes of 10 September 2019;

(f) an email to Mr Self of about 25 August 2020; and

(g) a further email to Mr Self of 1 October 2020.

The jurisdictional issues

18      At the hearing, Mr Cross confirmed that he considered that, as at the date of the hearing, he remained employed by the ERA. He stated that he was currently not working, but was on approved leave without pay. He did not contend that he had been dismissed and therefore his appeal was confined to an appeal under s 80I(1)(a) of the IR Act.

19      Section 80I(1)(a) of the IR Act provides:

(1) Subject to the Public Sector Management Act 1994 section 52, the Health Services Act 2016 section 118 and subsection (3) of this section, a Board has jurisdiction to hear and determine —

(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;…

20      The onus of establishing the Board has jurisdiction under this provision lies on the appellant (see Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) & others (1986) 67 WAIG 466 at [467]).

21      There is no dispute about, and the Board finds that, Mr Cross is a public service officer and that the ERA is an employing authority. The Board also accepts Mr Cross’s submissions that the appeal is not excluded from the Board’s jurisdiction under s 52 of the PSMA or s 118 of the Health Services Act 2016 (WA): see Appellant’s Statement and Submissions at [11] and [12].

22      There are three remaining questions which the Board must determine in relation to each of the Reporting Structure Decision and the Settlement Proposal:

(a) Whether these are “decisions” for the purpose of s 80I(1)(a)?

(b) If yes, is it a decision in relation to an interpretation of a provision of the PSMA? (Mr Cross does not rely upon the decision being in relation to interpretation of the Public Sector Management (General) Regulations 1994 (WA): see Appellant’s Statement and Submissions at [9] and [15]).

(c) If yes, does the interpretation concern conditions of service other than salaries and allowances of public service officers?

23      The answer to each of these questions must be “Yes” for Mr Cross’s appeal to be within the Board’s jurisdiction.

Does the appeal involve a “decision”?

24      The scope for an appeal under s 80I(1)(a) was described by Smith AP in Ross v Mr Peter Conran, Director General Dept of the Premier and Cabinet [2011] WAIRC 00955; (2011) 91 WAIG 2261 at [102] as follows:

Although s 80I(1)(a) of the Act empowers the public service [appeal board] to review a ‘decision’ of an employing authority in relation to an interpretation of any provision of the PSM Act, what constitutes a ‘decision’ of an employing authority in this legislative provision is not defined in the Act or in the PSM Act. In considering this issue it is helpful to have regard to what constitutes a ‘decision’ under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Under that legislation a ‘decision’ of a decision-maker of an administrative character that is reviewable under s 3(1) of the Administrative Decisions (Judicial Review) Act is an ultimate or operative determination and not a mere expression of opinion: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (338) (Mason CJ). Whilst s 80I(1)(a ) of the Act enables a review of a ‘decision’ that is narrower in scope to the power to review in s 3(1) of the Administrative Decisions (Judicial Review) Act, which enables the review of a decision of an administrative character made, or required to be made under an enactment, the observations of Mason CJ are apposite in construing s 80I(1)(a) of the Act as the power of the Public Service Appeal Board to adjust a ‘decision’ could only be effective if the ‘decision’ that is reviewed had operative effect.

25      From this description, it is clear that the sub-section does not permit an appeal to be brought against an employing agency’s opinion as to the correct interpretation of a provision of the PSMA. Nor does it permit an appeal on the basis that a public service officer perceives the employing agency to have adopted an incorrect, generally held view of a provision of the PSMA. There must be a decision concerning the PSMA, meaning which has a practical and operative effect on conditions of service.

26      The Reporting Structure Decision was effected by the provision to Mr Cross of an amended JDF in November 2018. There was a single amendment to the JDF which was to change Mr Cross’s reporting structure from reporting directly to an Executive Director, to reporting to a Level 8 employee. No changes were otherwise made to the classification, level, duties or responsibilities of Mr Cross’s role.

27      In email correspondence from the ERA’s Executive Director, Paul Kelly, to Mr Cross dated 9 November 2020 (Exhibit 1), Mr Kelly informed Mr Cross that:

The CEO of the ERA is granted power to change the reporting structure applicable to staff at levels 1-8 by sections 29 and 36 of the Public Sector Management Act 1994 (WA).

28      Mr Kelly referred to the functions set out under s 29(1) of the PSMA, including:

…

(d) to ensure the appropriate deployment and redeployment of resources within that department or organisation; and

(e) to ensure the proper organisation of that department or organisation, including the devising of organisational structures and arrangements; and

(f) to ensure the appropriate division of responsibilities between, and the assignment of functions to, the employees employed in that department or organisation; and

(g) to manage and direct employees employed in that department or organisation and, without limiting the generality of this paragraph, to be responsible for the recruitment, selection, appointment, deployment and termination of employment of those employees; and

(h) to classify, and determine the remuneration of, employees in that department or organisation and their offices, posts or positions, and to vary any such classification or remuneration…

29      Reference was also made to s 36 of the Act which provides that:

(1) Subject to subsection (2), the employing authority of a department or organisation may, in relation to the department or organisation —

(a) determine organisational structures and arrangements;

(b) create, transfer or abolish offices; and

(c) in accordance with approved procedures classify, or alter the classification of, offices other than offices included in the Special Division of the Public Service under section 38.

30      The Board is satisfied that the Reporting Structure Decision has an ultimate and operative effect. As described by Mr Kelly, it is a decision which determines the organisational structure and arrangements of the ERA’s organisation. It is therefore a “decision” within the meaning of that word in s 80I(1)(a).

31      The Settlement Proposal, on the other hand, has not had any final determinative or operative effect. Obviously, there was some decision which preceded the making of the Settlement Proposal, namely a decision to make an offer to Mr Cross for the settlement of his workers compensation claim. However, only Mr Cross’s acceptance of the offer could bring about any change in relation to his employment or the conditions attached to it. Mr Cross was free to accept or reject the offer. Indeed, he did not accept it, and so remains employed. The fact the offer was made does not seal Mr Cross’s fate, nor does it suggest anything is predetermined in relation to the employment.

32      The Settlement Proposal is not a “decision” in the sense described by AP Smith in Ross. It is not appealable under s 80I.

Is the decision in relation to interpretation of a provision of the PSMA?

33      Mr Cross submits at [15] of Appellant’s Statement and Submissions:

The decision of the employing authority is in relation to an interpretation of the provisions of the Public Sector Management Act 1994, namely sections 7 (Public administration and management principles), 8 (Human resource management principles), 9 (Principles of conduct by public sector bodies etc.), 29 (Functions of CEOs and chief employees), 30 (Duties of CEOs and chief employees when performing functions) and 36 (Organisational powers of employing authorities of departments etc.), and concerns the conditions of service (other than salaries or allowances) of the appellant as a public service officer.

34      The ERA, through its counsel, submits that while Mr Kelly had, in his email of 6 November 2020 (Exhibit 1), identified a statutory power to effect the change to Mr Cross’s reporting structure, no statutory power was required and that the change could be made by the ERA as Mr Cross’s employer pursuant to an innate power of an organisation to set the reporting structure. The ERA also submits that while Mr Cross refers “tangentially” to the provisions of the PSMA, aside perhaps from the issue of consultation, he does not identify with any precision how such provisions have been breached and merely makes bald assertions that those provisions have not been complied with.

35      Mr Cross refers to and relies upon the email correspondence between him and Mr Kelly between 6 November 2020 and 9 November 2020 (Exhibit 1) as an outline of both the substantive elements of the decision and his grounds of appeal: see Appellant’s Statement and Submissions at [3]. In order to determine whether the Reporting Structure Decision is a decision in relation to the interpretation of a provision of the PSMA it is necessary to consider the contents of this correspondence.

36      The email from Mr Kelly to Mr Cross dated 6 November 2020 (Exhibit 1), extracted above, indicates that, by effecting the restructure, the ERA interpreted ss 29 and 36 of the PSMA as empowering it to do so. The decision did at least involve, at an underlying level and in a broad sense, an interpretation of the PSMA because the employing authority viewed these provisions as conferring a statutory power upon it. However, to come within the terms of s 80I(1)(a), the decision must be in relation to an interpretation of a provision of the PSMA, as that phrase is used in the legislation [emphasis added].

37      The words “in relation to” when used in a statute must take their meaning from their context. They are used frequently in legislation and in a variety of circumstances. A summary of the contemporary approach of Australian courts to the meaning of the phrase is set out in Statutory Interpretation in Australia, D Pearce (9th Ed) at [12.7]‑[12.9]. At [12.8] the learned author cites Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 at [25] where French CJ and Hayne J said:

It may readily be accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that “the subject matter of the enquiry, the legislative history, and the facts of the case” are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply “in relation to” rights [citations omitted].

38      In the same paragraph, the learned author notes that the expression is “of broad import” citing O’Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 at [374] (Toohey and Gaudron JJ) and that the words are “among the broadest which could be used to denote a relationship between one subject matter and another”: Nordland Papier AG v Anti-Dumping Authority [1999] FCA 10; (1999) 93 FCR 454.

39      In considering what degree of connection the words “in relation to” in s 80I(1)(a) require, there are 4 aspects of the legislative context which we consider are telling. The first is that the Board’s jurisdiction can be contrasted to the considerably wider jurisdiction of the Public Service Arbitrator to deal with “industrial matters”. A useful comparison of the respective jurisdictions can be found in The Civil Service Association of Western Australia Incorporated v Director-General, Department for Child Protection (“CSA v DCP”) [2010] WAIRC 00206; (2010) 90 WAIG 214 at [111]-[114].

40      Second, the Board’s jurisdiction is confined to “special matters”; “a small number of matters which deal with specific decisions by employing authorities” (CSA v DCP at [111] and [114]). In this regard, Her Honour the Acting President noted at [108]-[109] of CSA v DCP:

…The Public Service Appeal Board has no general jurisdiction to deal with any matters other than appeals against specified decisions by an employing authority. Unlike s 80E, the jurisdiction of the Public Service Appeal Board conferred by s 80I can not be invoked to review any decision of an industrial nature of an employing authority. Section 80I(1)(a) is even more specific as it only applies to “public service officers” and not to other categories of “government officers”[.] In addition, the Public Service Appeal Board only has power to hear and determine an appeal, and to adjust all matters referred to in s 80I(1)(a) to (e). In contrast the Public Service Arbitrator has broad power to conciliate and arbitrate, including the power to make interim orders under s 32 and s 44 of the Act.

There is a strong presumption that the legislature does not intend to contradict itself but intends both provisions to operate within their given sphere: Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 (276) (Fullagar J); Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (17) (Gaudron J) and Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) CLR 1 (437)-(438) per Gummow, Hayne and Heydon JJ.

41      Third, an appeal under s 80I(1)(a) is available only to public service officers, not government officers. Under the PSMA, certain provisions, namely those in Part 3 of the PSMA, only apply to public service officers, indicating the rationale for enabling appeals for public service officers arises from those provisions of the PSMA.

42      Finally, there are time limits, as contained in section s 80J of the IR Act and Reg 107(2) of the IRC Regulations, for commencing an appeal to the Board against a decision. This indicates an intention that the connection between the decision and its interpretive elements be ascertainable as at the date of the decision.

43      The legislative context, and what it says of the nature of appeals under s 80I(1)(a), leads us to the conclusion that not every connection between a decision and the employing authority’s interpretation of a provision of the PSMA will qualify the decision as being “in relation to” the subject interpretation. The words “in relation to” require that a relevant connection must be established between the decision which is appealed against and the meaning of a provision of the PSMA. An indirect or less than substantial connection may be sufficient, but a bare, underlying connection will not be [emphasis added].

44      Whether such connection is established will depend on the facts of each case.

45      Turning then, to the facts of this case, it is necessary to have close regard to the correspondence which Mr Cross has described as capturing both the substantive elements of the decision, and his grounds of appeal. This correspondence is Exhibit 1. In particular, in Mr Cross’s email to Mr Kelly dated 9 November 2020 he says:

…

You referred to selective functions of the CEO under sections 29 and 36 of the Public Sector Management Act.

The functions of the CEO under section 29 are not unlimited. Section 29(1) functions are prescribed “Subject to this Act and any other written law relating to his or her department or organisation”. The duties of the CEO when performing any functions under the Act are prescribed in section 30:

In performing the functions of a chief executive officer or chief employee of a department or organisation, that chief executive officer or chief employee shall —

(a) endeavour to attain performance objectives agreed with the responsible authority of the department or organisation; and

(b) comply with the Commissioner’s instructions, public sector standards, codes of ethics and any relevant code of conduct; and

(c) comply with the principles set out in sections 7, 8 and 9; and

(d) comply with any binding award, order or industrial agreement under the Industrial Relations Act 1979 or employer employee agreement under Part VID of the Industrial Relations Act 1979.

The principles in sections 7, 8 and 9 of the Act include:

7. Public administration and management principles

The principles of public administration and management to be observed in and in relation to the Public Sector are that —

(a) the Public Sector is to be administered in a manner which emphasises the importance of service to the community; and

(b) the Public Sector is to be so structured and organised as to achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities; and

(c) public sector bodies are to be so structured and administered as to enable decisions to be made, and action taken, without excessive formality and with a minimum of delay; and

(d) administrative responsibilities are to be clearly defined and authority is to be delegated sufficiently to ensure that those to whom responsibilities are assigned have adequate authority to deal expeditiously with questions that arise in the course of discharging those responsibilities; and

(e) public sector bodies should have as their goal a continued improvement in the efficiency and effectiveness of their performance and should be administered with that goal always in view; and

(f) resources are to be deployed so as to ensure their most efficient and effective use; and

(g) proper standards of financial management and accounting are to be maintained at all times; and

(h) proper standards are to be maintained at all times in the creation, management, maintenance and retention of records.

8. Human resource management principles

(1) The principles of human resource management that are to be observed in and in relation to the Public Sector are that —

(a) all selection processes are to be directed towards, and based on, a proper assessment of merit and equity; and

(b) no power with regard to human resource management is to be exercised on the basis of nepotism or patronage; and

(c) employees are to be treated fairly and consistently and are not to be subjected to arbitrary or capricious administrative acts; and

(d) there is to be no unlawful discrimination against employees or persons seeking employment in the Public Sector on a ground referred to in the Equal Opportunity Act 1984 or any other ground; and

(e) employees are to be provided with safe and healthy working conditions in accordance with the Occupational Safety and Health Act 1984.

9. Principles of conduct by public sector bodies etc.

The principles of conduct that are to be observed by all public sector bodies and employees are that they —

(a) are to comply with the provisions of —

(i) this Act and any other Act governing their conduct; and

(ii) the Commissioner’s instructions, public sector standards and codes of ethics; and

(iii) any code of conduct applicable to the public sector body or employee concerned; and

(b) are to act with integrity in the performance of official duties and are to be scrupulous in the use of official information, equipment and facilities; and

(c) are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees.

I note in particular sections 7(c), 8(c) and (e), and 9(c).

As you would also know, the Occupational Safety and Health Act requires employers to provide and maintain a safe workplace (section 19). The Act also imposes a requirement on employers to consult with staff on any matters or changes to the workplace that may affect their health and wellbeing at work (sections 19 and 35). WorkSafe provides information on what they consider constitutes adequate consultation.

Clause 58 of the Public Service Award 1992 requires an employer to notify, discuss and provide all relevant information to affected staff and the Association, where an employer proposes to implement changes to structure that may significantly affect an officer’s job or promotional opportunities, among other things.

Clause 56 of the Public Sector CSA Agreement requires the employer to notify the Union and employees prior to making changes that may affect working conditions or employment prospects.

The Public Sector Commission’s guidance on Structural Change Management includes principles to be followed by public sector agencies and states:

Structural change affects people and their positions and can cause a degree of disruption. Employees should be informed of what is happening. This includes their options, what the change process involves and what support services are available.

The principles include:

1. A clearly defined rationale and vision of the change is understood

2. Stakeholders are identified, appropriately consulted and informed

3. The system and processes developed to achieve the change are transparent

4. Collective and collaborative leadership is empowered

5. There is a dedicated focus on people

6. The change is systematically reviewed and adapted

The ERA Code of Conduct, which I do not currently have on hand and you have not referenced as requested, and our core values include references to Excellence, Respect, Integrity and Impartiality, among other things.

In my particular circumstance and as you have noted, I applied for and accepted a role that was advertised and offered as reporting to an Executive Director. As you may also recall, I specifically sought to clarify and confirm the reporting structure of the role with you prior to applying for the role, during interview, and in a post-interview discussion, which you affirmed on each occasion. The advertised JDF was signed by you and Rajat as acting CEO. An identical JDF provided with the offer was signed by you and Jenness as CEO.

As you noted and was discussed at interview, I applied for the role coming from a Level 8 (Tier 3) Assistant Director position.

There is no circumstance in which I would have applied for or accepted the role had it been advertised or notified that the role would report to a Level 8 Assistant Director.

The CEO also mentioned her intention to implement structural changes during the induction meeting, although did not elaborate on the proposed changes or how that may affect my role directly.

Under Consumer Law, this would be a classic case of “bait and switch” and would be illegal. If the process you have outlined exemplifies an executive standard of conduct, then it would seem to be an exceedingly low bar of compliance with our core values and your signature on a document, specifically an employment document, is effectively meaningless.

…

46      In his responsive email to Mr Cross, also of 9 November 2020 (Exhibit 1), Mr Kelly relevantly states:

…

• The changes made to the reporting structure were validly made by the CEO under the powers granted by sections 29 and 36 of the Public Sector Management Act 1994 (WA).
• The changes made to the reporting structure by the CEO are in accordance with section 7, 8, 9 and 30 of the Public Sector Management Act 1994 (WA).
• Consultation about the changes to the reporting structure were carried out as necessary for a change which was not substantive and did not affect:

o the type of work performed

o the skills required to carry out important aspects of the work

o the responsibilities assumed by the position

o the conditions under which the work is carried out

o employment prospects.

• The changes to the reporting structure did not affect employees’ health or wellbeing.
• The changes made to the reporting structure are consistent with the ERA’s Code of Conduct.

…

47      Mr Cross has clearly referenced provisions of the PSMA, particularly ss 7(c), 8(c) and (e), and 9(a) and (c). His email suggests implicitly that he considers that insufficient regard was had to the requirements of those provisions when the ERA exercised the power in ss 29 and 36 of the PSMA.

48      Mr Kelly’s email does not take issue with, but implicitly accepts, that the power must be exercised subject to the principles expressed in ss 7, 8 and 9 of the PSMA.

49      The correspondence, nor the grounds of appeal, reveal any dispute or difference in relation to the interpretation or meaning of any of the sections of the PSMA referenced in the correspondence. Rather, each party respectively has, in the most generalised of terms, contended those provisions were or were not complied with when the Reporting Structure Decision was made.

50      Viewed in this way, the appeal does broadly involve the interaction between ss 29, 36, and ss 7, 8 and 9 of the PSMA. Finding the precise point at which the appeal relates to the interpretation of any of those provisions is more difficult. Mr Cross has not articulated a basis for challenging the ERA’s interpretation of any of the referenced sections of the PSMA. Rather, his appeal contends:

(a) Applying these provisions in his particular circumstances means that a restructure was not fair. He submits that he was not treated fairly: see Appellant’s Statement and Submissions at [85].

(b) That he was not treated consistently: see Appellant’s Statement and Submissions at [85]. In this regard, the only evidence Mr Cross identified was that he was told that a Level 8 employee successfully objected to her JDF being amended in relation to reporting lines: Appellant’s Statement and Submissions at [65]. The Board considers that this circumstance is insufficiently similar to Mr Cross’s for it to have relevance for the purpose of consistency arguments.

(c) That the decision was arbitrary and capricious (see Appellant’s Statement and Submissions at [86]) because reasons for the decision were not provided to him, the decision remains unexplained and unjustified and was implemented by a process devoid of any formality.

(d) The decision caused his workplace to be unsafe and therefore breached the Occupational Safety and Health Act 1984 (WA) (“OSHA”) (no section is specified by Mr Cross): see Appellant’s Statement and Submissions at [88].

(e) The ERA failed to consult with staff as required by ss 19 and 35 of the OSHA: see Appellant’s Statement and Submissions at [89];

(f) The ERA did not treat him with proper courtesy, consideration and sensitivity as referred to in s 9(c) of the PSMA: see Appellant’s Statement and Submissions at [91];

(g) The ERA has not complied with the Public Service Award 1992 and the Public Sector CSA Agreement 2019 requirements to notify, discuss and provide relevant information to staff and the Union when proposing to implement changes to structure that may significantly affect an officer’s job or promotional opportunities: see Appellant’s Statement and Submissions at [92] and [93].

(h) The ERA did not comply with the Public Sector Commission’s guidance on Structural Change Management which requires that employees be informed of what is happening, including their options, and what support services are available.

51      It will be seen from the above that Mr Cross has, in substance, challenged the way the ERA has applied the requirements of the PSMA, rather than its interpretation of them. Taking, by way of example, his reference to the requirements of the applicable industrial instruments to notify the Union and employees about proposed changes. There does not appear to be any dispute that the respective industrial agreements contain those requirements, nor that compliance with them is part of the requirement under s 9(a)(i). Mr Cross may say that the particular requirements of the industrial instruments have not been met, but that has not, in this case, raised an issue of interpretation of any section of the PSMA. At most, it raises an issue about the consultation requirements of the relevant industrial instrument.

52      While on occasions, differences in the application of legislative provisions are the result of differences in interpretation of their requirements, this is not always the case. Often differences in the result of the application of legislative provisions is merely the result of the exercise of a discretion which is expressly or implicitly conferred and “goes with the territory” of the exercise of the power. The fact that the decision to effect a restructure was made does not mean that the decision maker disregarded the requirements of s 8 to act fairly and consistently. Rather, it may mean the decision maker came to a particular view of what was fair and consistent in this case. That view might be different to the view Mr Cross takes, but the legislation allows for the fact that reasonable minds may differ as to what fairness, consistency, safety, etc require.

53      At its heart, Mr Cross’s appeal reveals he is aggrieved by the manner in which the provisions of the PSMA were applied in his case. In other words, his gripe is with the way a statutory power has been exercised, not with the ERA’s understanding of the nature, limits or requirements for exercise of the power. While Mr Cross has articulated what he sees as shortcomings in the decision making process, regardless of whether those shortcomings can be established or not, his grounds do not identify a question of interpretation of the PSMA such that the Board can be satisfied that there is the necessary relevant connection between the Reporting Structure Decision and an interpretation of a provision of the PSMA.

54      For the decision to have the necessary connection with interpretation of a provision of the PSMA, it is not enough to simply point to a section or list sections of the PSMA which apply to the decision.

55      Accordingly, the requirements for the Board to have jurisdiction to hear the Mr Cross’s appeal are not met.

Does the decision concern “conditions of service”?

56      Because we have concluded that the decision appealed against is not in relation to an interpretation of any provision of the PSMA, it is not necessary to proceed further to a consideration of whether the decision concerns conditions of service. However, because the parties made competing submissions on this issue, we wish to make some observations.

57      The ERA submitted that the Reporting Structure Decision did not concern “conditions of service”. Counsel referenced by way of contrast the term “industrial matter” which is defined extensively in s 7 of the IR Act. Counsel submitted that what falls within the narrower phrase “conditions of service” cannot easily be delineated, and will be a matter of judgment in each case. Counsel conceded that in some situations, where reporting changes are significant and amount to a downgrading of a position, changes to reporting may relate to conditions of service. Counsel submits that in this case, where there was no change to duties or responsibilities, the decision should not be regarded as one that concerns conditions of service.

58      Mr Cross contends that the reporting structure is a condition of service, particularly in circumstances where he accepted employment on the basis of assurances given to him about the reporting structure.

59      The phrase “conditions of service” is not defined in either the IR Act or the PSMA. In R v Booth; Ex parte Administrative & Clerical Officers Association [1978] HCA 14; (1978) 141 CLR 257; (1978) 19 ALR 464 the High Court was called upon to consider the meaning of the same phrase as it appeared in the Public Service Arbitration Act 1920 (Cth). The case involved an application for an order nisi for mandamus and certiorari against an arbitrator’s refusal to deal with a question as to whether public service officers had a right of appeal against “outsider” appointments. This turned on whether such an appeal was “relating to conditions of employment” of the officers concerned and therefore within the arbitrator’s jurisdiction. The expression “conditions of employment” was defined in s 3(1) of the Public Service Arbitration Act 1920 (Cth) to mean “salaries, wages, rates of pay or other terms or conditions of service of employment” [emphasis added]. As to this latter phrase, the Court (Gibbs, Stephen, Mason, Jacobs and Murphy JJ) stated:

…The expression as so defined is obviously intended to have a wide meaning. In Australian Tramway Employees Association v Prahran and Malvern Tramway Trust (1913) 17 CLR 680 at 693, in a passage cited by Dixon C.J. in Reg. v. Findlay; Ex parte Commonwealth Steamship Owners’ Association [1953] HCA 81; (1953) 90 CLR 621, at p 630, Isaacs and Rich JJ. said:

“The “terms” of employment are the stipulations agreed to or otherwise existing on both sides upon which the service is performed. The “conditions” of employment include all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.”

No doubt this extensive meaning should be attributed to the word “conditions” in the definition. The “other terms or conditions of service or employment” cannot be limited to those which are ejusdem generis with salaries, wages and rates of pay. A condition relating to seniority would come within the definition: cf. Commissioner for Railways (NSW) v McCulloch (1946) 72 CLR 141. The fact that an employee has, or has not, a right of appeal against the appointment of an outsider to a position the filling of which would affect his seniority is a circumstance affecting his employment. It is true of employment generally, including employment in the Public Service, that importance is attached by employees to the maintenance of their positions of seniority, with its influence on their prospects of promotion, and a natural enough way of preserving the existing seniority of an employee is to give him a right of appeal against the making of an appointment which would in a practical sense affect his seniority or his prospects. Under the Public Service Act 1922 (Cth), as amended (“the Public Service Act”), an officer is given a right of appeal against the promotion of another officer to a vacant office and seniority is one matter which may be considered: see s 50(6). A right of appeal against the appointment of an outsider to a vacant office, whether granted by statute, award or agreement, might be made a term of the employment of an employee who might be affected by the appointment, and if granted would at least be a condition of the employment of such employee.

60      The meaning of the phrase “conditions of service” as they appear in s 80I(1)(a) also arose in CSA v DCP. On this issue, the Acting President Smith (Commissioner Mayman agreeing) stated at [95]:

I do not agree that the term “conditions of service” in s 80I(1)(a) should be read narrowly as the appellant contends. Historically, officers who are employed by the Crown or government agencies were career appointments and career appointments are still made under the PSM Act. These officers receive a salary for holding office as a public service officer. In the past they were appointed as “public servants”. The term “conditions of service” in s 80I(1)(a) of the Act in my view has no special meaning and perhaps can be said to have been used in s 80(1)(a) because of the statutory context of appointment of public service officers rather than employment at common law. This does not mean that the majority of persons appointed to positions under the PSM Act would not be regarded as employees at common law. At common law the term “conditions of service” can be construed as broadly as the term “conditions of employment”: see the brief observations of Kirby J in Westwood v Lightly [1984] FCA 87; (1984) 2 FCR 41 (50 - 51) in relation to the expression “terms and conditions of service”. In my opinion the term “conditions of service” is wide enough to encompass all statutory and contractual terms of appointments. It follows therefore that the Public Service Arbitrator did not err in finding that the provisions of Part 5 of the PSM Act are conditions of service. Part 5 contains a statutory code of conditions which apply to substandard performance and disciplinary matters in relation to, among others, public service officers.

61      Her Honour proceeded, at [111], to give an example of a condition of service in Parts 3 and 5 of the PSMA that could be the subject of a decision, namely a decision made by an employing authority under s 43 to appoint a person to a SES post:

…If there is a debate about the meaning of a SES post in s 43 of the PSM Act, s 80I(1)(a) may be enlivened…

62      Commissioner Kenner also rejected a restricted meaning of “conditions of service”, citing Australian Tramway Employees Association v Prahran and Malvern Tramway Trust [1913] HCA 53; (1913) 17 CLR 680 where Isaacs and Rich JJ said at [693]:

…The “terms” of employment are the stipulations agreed to or otherwise existing on both sides upon which the service is performed. The “conditions” of employment include all the elements that constitute the necessary requisites, attributes, qualifications, environment or other circumstances affecting the employment.

63      Organisational structure and reporting lines are determined within the framework of Part 3 of the PSMA. The PSMA contains statutory provisions which control and govern conditions of service: Director-General of Education v Suttling (1987) 162 CLR 427; (1987) 69 ALR 193; per Brennan J at [437]-[438].

64      Had Mr Cross’s appeal raised an issue in relation to the interpretation of a provision of the PSMA as it concerned the power to effect alterations to reporting structures, the Board would be inclined to the view that such decision does concern conditions of service. The reporting structure determines the environment affecting Mr Cross’s employment because it involves who supervises his work and who he reports to.

Conclusion: no jurisdiction

65      Because the appeal against the Settlement Proposal is not an appeal against a decision, it must be dismissed for want of jurisdiction.

66      Because the appeal against the Reporting Structure Decision is not in relation to an interpretation of any provision of the PSMA, it must be dismissed for want of jurisdiction.

Extension of time

67      As the Board is of the view that it does not have jurisdiction, there is no call to consider the issue of whether it should extend the time for Mr Cross to appeal: see Coe v Department of Education [2021] WAIRC 00141; (2021) 101 WAIG 422 at [41]. Indeed, the Board is without power to consider or determine whether an extension of time should be granted: see Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) & others (1986) 67 WAIG 466 at [467].

68      Having said that, if the Board found it had jurisdiction and had to consider whether to extend time to appeal, it would have declined to grant an extension of time, for the following reasons.

69      The Board has power pursuant to s 27(1)(n) of the IR Act to extend the prescribed time in which to institute an appeal: see Dehnel v Dr Neale Fong, Director General, Department of Health [2006] WAIRC 05677; (2006) 86 WAIG 3310 at [71]-[73].

70      The principles that apply in relation to the exercise of the discretion to extend time within which to appeal under s 80I of the IR Act were considered by the Appeal Board in Nicholas v Department of Education and Training [2008] WAIRC 01645; (2008) 89 WAIG 817. In that case, the Board applied the principles applied by the Full Court of the Supreme Court of Western Australia and the Court of Appeal respectively in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 and Chan v The Nurses Board of Western Australia [2007] WASCA 123. See also Simonsen v Legge [2010] WASCA 238 at [8]; JR Marine Systems Pte Ltd v Wavemaster International Pty Ltd (in liq) [2011] WASCA 16 at [5] and Howle v Best [2012] WASC 62 at [31].

71      These authorities emphasise four (main, but not necessarily exhaustive) factors in considering whether an appeal should be accepted out of time. They are:

(a) the length of the delay;

(b) the reasons for the delay;

(c) the prospects of the applicant in succeeding in the appeal; and

(d) the extent of any prejudice to the ERA.

72      In Kelly v Director General, Department of Justice [2003] WAIRC 08164; (2003) 83 WAIG 1283 at [69], the following observations were made [citations omitted] relevant to the determination of the present matter:

Until the application for extension is granted, there ought be no assumption made that the extension will be granted as a matter of right. The question is whether the circumstances meet the tests for an extension of time…

(a) Prima facie time limits imposed by the Act are to be complied with and it is for to the applicant to establish the circumstances such that the discretion to extend time should be exercised in his or her favour;

(b) an extension of time is not automatic and the discretion residing with the Commission to extend time is for the purpose of enabling the Commission to do justice between the parties;

(c) it is for an applicant to demonstrate that strict compliance with the legislation will work an injustice and be unfair in all of the circumstances;

…

Consideration of extension of time

Length of the delay

73      In the scheme of the time limit of 21 days imposed by the IRC Regulations, the delay of three years is “very long”: see Grove v Grove [2016] WAIRC 00179; (2016) 96 WAIG 343. This factor cannot be determinative on its own. However, it weighs heavily against the grant of an extension of time. The other relevant factors must involve strong counterbalancing considerations to displace effect of this factor being against the grant of an extension of time.

Reasons for the delay

74      In his Form 8B – Notice of Appeal, Mr Cross provides his reasons as to why he believes his appeal should be allowed to proceed out of time as follows:

1. In November 2018, I was provided with an email and amended JDF relating to the decision that had apparently been made in June or July 2018.

2. I made several documented and verbal attempts and requests to seek clarification of the decision, each of which was dismissed without explanation or substantiation of the decision.

3. In October 2020, I took medical leave on the advice of my GP. I again sought explanation of the decision made in June/July 2018. It was this time provided in writing. I raised several matters regarding the decision. These were also dismissed without substantiation or explanation.

4. In December 2020, I filed a claim for workers compensation. The Employer demanded my resignation as a condition of their settlement offer, received in June 2021.

75      We accept that Mr Cross’s lack of action between the time the decision was made in June 2018 and him being informed of the decision in November 2018 is adequately explained. Mr Cross could not be expected to take steps to appeal a decision which he was not aware had been made.

76      However, the delay from November 2018 until 1 July 2021 is not explained. Mr Cross did, as outlined above, seek to raise his grievances through other informal avenues but not until 27 July 2019 and only up until 9 November 2020. The delay of some seven months preceding the 27 July 2019 meeting is not explained. The delay of some eight months after 9 November 2020 is not explained. Why action could not have been taken by him while pursuing other informal avenues is not explained.

Prospects of success in the appeal

77      As discussed above, if Mr Cross’s appeal was from a decision that related to interpretation of the provisions of ss 7,8 or 9 of the PSMA, there is nothing in his grounds of appeal which indicates what interpretation he challenges, why the interpretation is wrong, nor what meaning he would attribute to the relevant provisions. In these circumstances, it is not possible to conclude the appeal has merit.

78      It must also be borne in mind that this was a decision which affected all Level 7 employees, not just Mr Cross. As the ERA’s counsel pointed out, while Mr Cross’s grievances about the lack of consultation may have substance, he is ultimately in the same position in terms of remuneration, level, and duties and is in the same position as other Level 7 employees. His contentions about breaches of the PSMA are otherwise little more than bald assertions.

79      The appeal does not disclose grounds of such convincing merit that this factor will tilt the balance in favour of granting leave.

Prejudice to the ERA

80      Prejudice can be inferred from the length of the delay: see D & M Amonini Pty Ltd v Neirin Pty Ltd [2016] WASC 157 per Martin CJ at [16]. Further, the absence of prejudice to the ERA is, again, not determinative of whether an extension of time should be granted: see City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120.

81      Mr Cross’s appeal will be dismissed.