DISPUTE REGARDING DISMISSAL OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00941

DELIVERED : FRIDAY, 1 DECEMBER 2023

FILE NO. : C 38 OF 2023

Applicant

AND

Governing Council of North Metropolitan TAFE

Respondent

CatchWords : Industrial Law – Jurisdiction of Commission to hear a s 44 matter when the employee can refer the matter under s 78(2) PSM Act – Statutory construction of s 23(3)(d) – Commission lacks jurisdiction – s 44 application dismissed

Legislation : Industrial Relations Act 1979 (WA), s 8 – s 80, s 23, s 23(1), s 23A, s 23(3)(d), s 24(2), s 27(1)(a)(iv), s 27(1)(t), s 27(1)(u), s 29, s 29(1)(a)(ii), s 29(1)(c), s 29(1)(d), s 34(4), s 42G(6), s 43(2), s 44, s 44(1), s 44(6)(bb)(ii), s 44(7)(a)(i), s 44(12c), s 48(11), s 48(12), s 49, s 49J(6a)(b), s 49J(8)(a), s 49J(8)(b), s 51A(4)(b), s 51A(4)(b)(i), s 51A(4)(b)(ii), s 69(12) s 80E(1), s 80E(6), s 80I, s 90

   Public Sector Management Act 1994 (WA), s 76(1)(b), s 78, s 78(1), s 78(2), s 78(2)(b)(iv), s 78(5), s 82A(3)(b)

  Interpretation Act 1984 (WA), s 19

  Industrial Arbitration Act 1979 (WA), s 23

  Industrial Arbitration Amendment Act 1980 (WA), s 2

  Acts Amendment and Repeal (Industrial Relations) Act (No.2) 1984 (WA), s 15, s 47, s 78(1), s 79, s 80F, s 80I, s 80J

  Mental Health Act 1962 (WA) (repealed), reg 88

  Public Sector Reform Act 2010 (WA), s 95    

Result : Jurisdictional objection upheld and s 44 application dismissed

Representation:

Applicant : Mr D Rafferty (of counsel)

Respondent : Mr J Carroll (of counsel)

Cases referred to in reasons:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; 38 ALR 355

Ayling v Director-General, Department of Education and Training [2009] WAIRC 00413; (2009) 89 WAIG 824

Bellamy v Chairman, Public Service Board [1986] WAIRC 11579; (1986) 66 WAIG 1579

Browne v Director General, Department of Water and Environmental Regulation [2020] WASCA 16 

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652

Cowley v Milici t/as JJ Painting Contractors [2004] WAIRC 11767; (2004) 84 WAIG 2279

Director General, Department of Education v State School Teachers’ Union [2021] WASCA 14

Director General of the Department of Education v Guretti [2014] WAIRC 00074; (2014) 94 WAIG 425

Food Preservers Union of Western Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch (2001) 24 WAR 89; 104 IR 393

Johnston v Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553

Maggs v Comptroller General of Customs (1995) 58 IR 40

McLean v Kowald (1974) 9 SASR 384

Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455

Minister for Lands (NSW) v Whitfeld (1913) 17 CLR 295

Mongoo v Commissioner of Police (1986) 66 WAIG 930

Ogden Industries Pty. Limited v Lucas (1968) 118 CLR 32

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation and Others (1979-80) 29 ALR 333

Rindos v The University of Western Australia (1995) 75 WAIG 736

Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282

Sarris v Penfolds Wines Pty Ltd [1962] NSWR 801

Smallshaw v The Minister for Corrective Services [2014] WAIRC 00956; (2014) 94 WAIG 1548

The Civil Service Association of Western Australia Incorporated v Chief Executive Officer Disability Services Commission [2005] WAIRC 01349; (2005) 85 WAIG 3082

The Director General Department of Education and Training v The State School Teachers’ Union of W.A. (Incorporated) [2009] WAIRC 00283; (2009) 89 WAIG 622

The State School Teachers Union of W.A. (Incorporated) v Albert, Director General of the Department of Education and Training [2005] WAIRC 01955; (2005) 85 WAIG 2047

The State School Teachers Union of W.A. (Incorporated) v Albert, Director General, Department of Education and Training [2007] WAIRC 00020; (2007) 87 WAIG 256

The State School Teachers’ Union of W.A. (Incorporated) v The Director General, Department of Education and Training [2009] WAIRC 00128; (2009) 89 WAIG 1151

The State School Teachers’ Union of WA (Incorporated) v The Director General, Department of Education [2012] WAIRC 00127; (2012) 92 WAIG 362

The State School Teachers’ Union of W.A. (Incorporated) v The Director General, Department of Education [2015] WAIRC 00899; (2015) 96 WAIG 1627

The State School Teachers’ Union of W.A. (Incorporated) v The Director General, Department of Education [2016] WAIRC 00125; (2016) 96 WAIG 230

The Western Australian Government Railways Commission v The Australian Railways Union, Western Australian Branch (1990) 70 WAIG 1283

United Professional Firefighters Union of Western Australia v Department of Fire and Emergency Services [2023] WAIRC 00399; (2023) 103 WAIG 1470

Western Australian Fire Brigades Board v Fire Brigade Employees Industrial Union of Workers of Western Australia (1981) 61 WAIG 852

Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00706; (2013) 93 WAIG 1439

WorkPac Pty Ltd v Skene [2018] FCAFC 131

Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd & Ors [2009] HCA 50; (2009) 240 CLR 391

Reasons for decision

1         This matter was listed for hearing to determine the respondent’s (the TAFE’s) application for the proceedings to be dismissed under s 27(1)(a)(iv) of the Industrial Relations Act 1979 (WA) (IR Act).

2         The TAFE contends the Commission has no power to regulate dismissal in, termination of, or reinstatement in, employment of TAFE lecturers due to the operation of s 23(3)(d) of the IR Act when read with Part 5 of the Public Sector Management Act 1994 (WA) (PSM Act).

3         Section 23(3)(d) of the IR Act states:

(3) The Commission in the exercise of the jurisdiction conferred on it by this Part must not –

…

(d)  regulate the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind;              

Background

4         On 29 September 2023, the applicant (the SSTU) filed a Form 1B – Application for a Conference - s 44, Industrial Relations Act 1979 (s 44 application), seeking a conference pursuant to s 44(1) within one or two weeks. The s 44 application states:

(a) The matter relates to the unfair dismissal of the SSTU’s member, Eric Robin Whitehurst (Mr Whitehurst) by the TAFE on 1 September 2023.

(b) The SSTU seeks an interim order under s 44(6)(bb)(ii) of the IR Act for Mr Whitehurst’s reinstatement, or in the alternative for his re‑employment in another available and suitable position.

(c) The SSTU seeks final orders for Mr Whitehurst’s reinstatement, or in the alternative for his re‑employment in another available and suitable position.

(d) The SSTU also seeks a final order to maintain the continuity of Mr Whitehurst’s employment and an order that the TAFE pay him any remuneration lost or likely to be lost because of the dismissal. In the alternative, the SSTU seeks a final order that the TAFE pay Mr Whitehurst compensation for loss or injury caused by the dismissal.

5         On 5 October 2023, the TAFE filed a Form 4 – Response (General), stating:

(a) The Commission lacks power to hear the matter for reasons outlined in the accompanying Form 1A application.

(b) Mr Whitehurst has standing to make a referral to the Commission under s 78(2) of the PSM Act. If such a referral is made, the hearing would be de novo, curing any procedural defects (which are denied), leaving the substantive issues of whether Mr Whitehurst engaged in the alleged conduct and whether the dismissal was fair.

(c) The TAFE denies the dismissal of Mr Whitehurst was unfair.

(d) Ordering interim reinstatement would be regulating discipline under s 23(3)(d) of the IR Act. Therefore, the Commission lacks power to make such an order.

6          On 5 October 2023, the TAFE filed a Form 1A – Multipurpose Form, stating:

(a) The TAFE took disciplinary action by way of dismissal under Part 5 of the PSM Act and dismissed Mr Whitehurst from his employment.

(b) Section 78(2)(b)(iv) of the PSM Act gives Mr Whitehurst a right to refer the dismissal decision to the Commission as if it were an industrial matter under the IR Act.

(c) Since s 82A(3)(b) of the PSM Act provides for discipline and dismissal of employees, and s 78(2) of the PSM Act allows referral to the Commission to challenge such decisions, s 23(3)(d) of the IR Act is invoked. Consequently, the Commission lacks power through the s 44 application to regulate Mr Whitehurst’s dismissal or discipline.

(d) That s 78(2) of the PSM Act refers to a ‘referral’ rather than an appeal is of no consequence. Section 23(3)(d) of the IR Act is concerned with the substantive right to challenge the decision, as supported by the language in s 23(3)(d) that ‘there is provision, however expressed, … for an appeal in a matter of that kind.’: Rindos v The University of Western Australia (1995) 75 WAIG 736 (Rindos).

(e) That the ‘appeal’ (or referral) is to the Commission does not affect the conclusion that s 23(3)(d) prevents the Commission from dealing with the matter: Cowley v Milici t/as JJ Painting Contractors [2004] WAIRC 11767; (2004) 84 WAIG 2279 (Cowley) [37].

(f) As the Commission lacks power to deal with the matter, it should be dismissed on an interlocutory basis: United Professional Firefighters Union of Western Australia v Department of Fire and Emergency Services [2023] WAIRC 00399; (2023) 103 WAIG 1470 (UPFU).

Statement of agreed facts

7          On 11 October 2023, the parties filed a statement of agreed facts, stating:

2. The Union is an organisation of employees registered under Division 4 of Part II of the Industrial Relations Act 1979 (WA) (IR Act) which is entitled to represent the industrial interests of lecturers in TAFE colleges established under the Vocational Education and Training Act 1996 (WA) (VET Act), including the industrial interests of its member, Eric Robin (Rob) Whitehurst (Mr Whitehurst).

3.  Up until his dismissal, North Metro TAFE had employed Mr Whitehurst as a lecturer pursuant to s 47 of the VET Act.

4. At all material times, the Western Australian TAFE Lecturers’ General Agreement 2021 (2022 WAIRC 00832) applied to Mr Whitehurst and North Metro TAFE.

5.  Mr Whitehurst was not a ‘government officer’ within the meaning of that term in s 80C of the IR Act because Mr Whitehurst was a ‘member of the academic staff of a postsecondary education institution’, and that category of employment was expressly excluded: see sub-paragraph (f) of the definition of ‘government officer in s 80C of the IR Act.

6.  Part 5 of the Public Sector Management Act 1994 (WA) (PSM Act) applied to Mr Whitehurst in his employment with North Metro TAFE, by reason of the effect of s 76(1)(b) of the PSM Act and reg 14(a) of the Public Sector Management (General) Regulations 1994 (WA).

7.  On Friday, 1 September 2023, North Metro TAFE dismissed Mr Whitehurst from his employment with North Metro TAFE, by way of disciplinary action taken pursuant to s 82A(3)(b) of the PSM Act.

8.  By reason of the matters in paragraph 5 to 7 above, s 78(1) of the PSM Act did not and does not apply to Mr Whitehurst.

9.  By reason of the matters in paragraph 5 to 7 above, s 78(2) of the PSM Act did and does apply to Mr Whitehurst.

10.  As to the decision of Rindos v The University of Western Australia (1995) 75 WAIG 736 cited at footnote 4 on North Metro TAFE’s Form 1A – Multipurpose Form:

10.1. a copy of the Australian Universities Academic Staff (Conditions of Employment) Award 1988 referred to in Rindos is attached to this Statement of Agreed Facts;

10.2.  the copy attached to this Statement of Agreed Facts is the Award as originally made in the Australian Conciliation and Arbitration Commission on 18 November 1988;

10.3.  the Award as originally made included clause ‘7 – PROCEDURES FOR DEALING WITH UNSATISFACTORY PERFORMANCE’;

10.4.  after the Award was made, but before Rindos, the clause referred to in paragraph 10.3 above was renumbered to clause ‘8 – PROCEDURES FOR DEALING WITH UNSATISFACTORY PERFORMANCE’.

The SSTU’s written submissions

8         On 17 October 2023, the SSTU filed written submissions, stating:

(a) From on about 25 January 2020, TAFE lecturers became subject to Part 5 of the PSM Act.

(b) On 29 September 2023, the SSTU made an application under s 44 of the IR Act for a conference on the grounds that Mr Whitehurst’s dismissal was unfair, seeking final orders in accordance with s 23A of the IR Act, and interim orders in accordance with s 44(6)(bb)(ii) of the IR Act.

(c) The SSTU’s approach is consistent with the historical approach taken in respect of teachers to whom s 78(2) of the PSM Act applied: The State School Teachers Union of W.A. (Incorporated) v Albert, Director General of the Department of Education and Training [2005] WAIRC 01955; (2005) 85 WAIG 2047, The State School Teachers Union of W.A. (Incorporated) v Albert, Director General, Department of Education and Training [2007] WAIRC 00020; (2007) 87 WAIG 256, The State School Teachers’ Union of W.A. (Incorporated) v The Director General, Department of Education and Training [2009] WAIRC 00128; (2009) 89 WAIG 1151, The Director General Department of Education and Training v The State School Teachers’ Union of W.A. (Incorporated) [2009] WAIRC 00283; (2009) 89 WAIG 622, The State School Teachers’ Union of WA (Incorporated) v The Director General, Department of Education [2012] WAIRC 00127; (2012) 92 WAIG 362, The State School Teachers’ Union of W.A. (Incorporated) v The Director General, Department of Education [2016] WAIRC 00125; (2016) 96 WAIG 230, The State School Teachers’ Union of W.A. (Incorporated) v The Director General, Department of Education [2015] WAIRC 00899; (2015) 96 WAIG 1627.

(d) Parliament has not taken any steps to amend the IR Act to disturb this historical approach.

(e) The SSTU accepts the parties cannot confer jurisdiction on the Commission it lacks, and nothing prevents the TAFE raising the jurisdictional objection now.

(f) Section 23(3)(d) of the IR Act requires two elements in the other Act to oust the Commission’s jurisdiction: The Western Australian Government Railways Commission v The Australian Railways Union, Western Australian Branch (1990) 70 WAIG 1283:

(i) a ‘provision, however expressed’ in the other Act, ‘for or in relation to a matter’ of ‘suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment’; and

(ii) a ‘provision, however expressed, by or under that other Act for an appeal in a matter of that kind.’

(g) Both elements were met and the Commission’s jurisdiction was ousted in Western Australian Fire Brigades Board v Fire Brigade Employees Industrial Union of Workers of Western Australia (1981) 61 WAIG 852, UPFU, Mongoo v Commissioner of Police (1986) 66 WAIG 930, and Smallshaw v The Minister for Corrective Services [2014] WAIRC 00956; (2014) 94 WAIG 1548.

(h) The second element was not met and the Commission’s jurisdiction was not ousted in Western Australian Prison Officers’ Union of Workers v The Minister for Corrective Services [2013] WAIRC 00706; (2013) 93 WAIG 1439.

(i) The inclusive phrase ‘however expressed’ only conditions ‘provision’. This indicates Parliament did not intend ‘provision’ to be limited, given the various meanings that can apply to that term.

(j) The SSTU relies upon Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd and Others [2009] HCA 50; (2009) 240 CLR 391 (Zurich) [31] (French CJ, Gummow and Crennan JJ) (citations omitted):

…The word “provision” has been described rightly as “a word of diverse meanings which slide easily into each other.” As Lord Simonds, who made that comment, observed:

“It may mean a clause or proviso, a defined part of a written instrument. Or it may mean the result ensuing from, that which is provided by, a written instrument or part of it.”

…The relevant definition in the Oxford English Dictionary is:

“Each of the clauses or divisions of a legal or formal statement, or such a statement itself, providing for some particular matter; also, a clause in such a statement which makes an express stipulation or condition; a proviso.”

(k) In s 23(3)(d) of the IR Act, the matter the ‘provision, however expressed’ provides for is ‘an appeal’. The expression ‘however expressed’ does not condition the term ‘an appeal’.

(l) The PSM Act was enacted after the IR Act. Section 78 of the PSM Act expressly refers to and operates in conjunction with the IR Act. In both Acts, ‘appeal’ and ‘referral’ are consistently used in the same distinct ways.

(m) In each instance, the usage follows the relevant ordinary meanings: Macquarie Dictionary (8th ed, 2020, p.67, p.1282): (original emphasis) 

appeal – ‘5. Law a. an application or proceeding for review by a higher tribunal’, ‘9. Law to apply to a higher tribunal for review of a case or a particular issue’

refer – ‘6. to hand over or submit for information, consideration, decision, etc.: to refer a cause to arbitration’

reference – ‘11. Law a. the proceedings before a referee. b. the act of submitting a matter to a referee for investigation or judgment’

(n) Division 2 of Part II of the IR Act is headed ‘General jurisdiction and powers of the Commission’.

(o) Section 29 of the IR Act specifies who may refer an industrial matter to the Commission. Section 29(1)(a)(ii) gives the SSTU standing to refer ‘any case’ relating to a person eligible to be a member. Section 29(1)(c) and s 29(1)(d) give an employee standing to refer unfair dismissal and denied contractual benefit claims.

(p) The Commission’s general jurisdiction and ‘very wide’ power to ‘enquire into and deal with any industrial matter’ is conferred by s 23(1) of the IR Act: Director General, Department of Education v State School Teachers’ Union [2021] WASCA 14 [67].

(q) As Mr Whitehurst is not a government officer, he may also ‘refer the decision or finding’ to the Commission under s 78(2) of the PSM Act, and the IR Act ‘applies to and in relation to that decision accordingly’: Johnston v Mance, Acting Director General Department of Education [2002] WAIRC 06155; (2002) 83 WAIG 1553.

(r) In contrast, a government officer may ‘appeal against that decision or finding’ to the Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the IR Act, which ‘has jurisdiction to hear and determine that appeal under and subject to that Division.’

(s) Division 2 of Part IIA of the IR Act is headed ‘Public service arbitrator and appeal boards’. Within this Division, s 80I states that a Public Service Appeal Board has jurisdiction to hear and determine ‘an appeal … against’ various decisions and findings set out in s 80I. A Public Service Appeal Board is given a narrow power to ‘adjust’ a decision or finding.

(t) Also within this Division is s 80E(1), which provides exclusive jurisdiction for industrial matters to be ‘referred’ to the Public Service Arbitrator.

(u) The SSTU relies upon Minister for Lands (NSW) v Whitfeld (1913) 17 CLR 295 (Whitfeld) at 304-305 (Barton ACJ):

It was indeed argued that in some of these instances the words “appeal” and “reference” might have been used as convertible terms. It is true that they are capable of being so considered if taken by themselves; but when the instances are compared with provisions in which the two terms are used manifestly by way of contra-distinction, it becomes apparent that the intention is not to lose sight of that distinction or to treat the one term as equivalent to the other.

In view of the frequency and the clearness with which the legislature has drawn a distinction which it obviously understood between the two methods of procedure in question, and in view of its preservation of this distinction up to its last word upon the regulation of the Crown lands, I feel myself unable to say that in sec. 28 (d) of the Act of 1905 it abandoned suddenly a discrimination which characterized not only its prior but its subsequent enactments. For many purposes an appeal and a reference have similar incidents and similar results; but they are entirely distinct proceedings…

(v) The SSTU also relies upon Whitfeld at 308-309 (Issacs J):

… that Parliament … repeatedly discriminated between “appeal” and “reference,” all point to the legislative recognition of the legal distinction between those terms.

The respondent has the task of satisfying the Court that two words, primarily distinct, are identical; and not only has that proved impossible, but all the evidences gathered from the Acts lead to the opposite conclusion.

… I find the distinction between appeal and reference most carefully preserved throughout …

… a most careful and unmistakable distinction is maintained between “appeal” and “reference” …

(w) If ‘appeal’ and ‘refer’ were to be attributed common meanings in the IR Act, this would lead to an absurdity at s 27(1)(t), s 27(1)(u) and s 80E(6) of the IR Act.

(x) Parliament’s careful adoption of ‘appeal’ in s 78(1) and ‘referral’ in s 78(2) for two distinct and discrete types of matters is confirmed by s 78(5) of the PSM Act, which:

(i) differentiates between the Commission and the Public Service Appeal Board;

(ii) differentiates between a referral and an appeal; and

(iii) describes the Commission’s task as to ‘determine the reference’ and the Public Service Appeal Board’s task as to ‘allow the appeal’.

(y) Parliament deliberately and critically limited s 23(3)(d) of the IR Act to ‘an appeal’. Only where the other Act provides for ‘an appeal’ is jurisdiction ousted.

(z) Jurisdiction is not ousted in relation to s 78(2) industrial matters. Matters of the kind specified in s 78(2) of the PSM Act may satisfy the first element in s 23(3)(d) of the IR Act, but not the second element as there is no provision for ‘an appeal’ in s 78(2).

(aa) Rindos does not support the TAFE’s contention as there the relevant award provided a right of ‘appeal’ to an ‘Appeal Committee’, which was imported into the University of Western Australia Regulations: Rindos at 739.

(bb) In any event, the Commission is bound to construe the IR Act correctly: Ogden Industries Pty. Limited v Lucas (1968)118 CLR 32 at 39; Melrose Farm Pty Ltd t/as Milesaway Tours v Milward [2008] WASCA 175; (2008) 175 IR 455 [56] (Le Miere J).

(cc) Cowley does not support the TAFE’s contention as in that case, Beech SC (as he then was) found the jurisdiction of the Commission was not ousted because the second element of s 23(3)(d) of the IR Act was not met.

The TAFE’s written submissions

9         On 24 October 2023, the TAFE filed written submissions, stating:

(a) Parties cannot confer jurisdiction (or powers) on the Commission where none exists, nor can the parties’ conduct to litigation affect the IR Act’s true construction.

(b) Whether s 23(3)(d) of the IR Act ousts the Commission’s jurisdiction when read with s 78(2) of the PSM Act has not previously been considered. Thus, previous decisions where the Commission assumed it had power to deal with the matter before it are irrelevant.

(c) The ordinary language of s 23(3)(d) of the IR Act as a whole shows ‘however expressed’ conditions the whole phrase ‘provision … by or under that other Act for an appeal in a matter of that kind’.

(d) The Macquarie Dictionary defines ‘appeal’ to mean ‘an application or proceeding for review by a higher tribunal’ or ‘to apply to a higher tribunal for review of a case or particular issue’.

(e) As a matter of substance, the right conferred by s 78(2) of the PSM Act is such a right.

(f) The TAFE relies upon Ayling v Director‑General, Department of Education and Training (2009) 89 WAIG 824 (Ayling) [129], [132] and Director General of the Department of Education v Guretti [2014] WAIRC 00074; (2014) 94 WAIG 425 (Guretti) [64].

(g) Rindos decided on two separate bases:

(i) The award provided a right of appeal on a matter of a relevant kind.

(ii) The University of Western Australia Act (WA) (UWA Act) stipulating the Governor as Visitor of the University ‘shall have authority to do all things which pertain to Visitors’, gave the Governor (as Visitor) general jurisdiction over disputes relating to the internal affairs and management of the University, including wrongful dismissal. This amounted to ‘provision, however expressed, for an appeal of a matter of’ a relevant kind, despite there being no reference to an ‘appeal’ in the UWA Act.

(h) Section 23(3)(d) of the IR Act has two purposes:

(i) To prevent duplicative proceedings and inconsistent judgments.

(ii) To ensure that provisions providing for general jurisdiction do no override specific conferrals of jurisdiction: The Civil Service Association of Western Australia Incorporated v Chief Executive Officer Disability Services Commission [2005] WAIRC 01349; (2005) 85 WAIG 3082 (CSA) [14]-[19]:

14  Therefore, the legislature in this State, has prescribed a specific jurisdiction under the Act for government officers, and within that jurisdiction, has also distinguished between appeals under s 80I to the Appeal Board, and the general jurisdiction of an Arbitrator under s 80E of the Act. The Arbitrator's “exclusive jurisdiction”, must in my opinion, be read under the Act, as subject to the jurisdiction and powers of the Appeal Board in s 80I, otherwise the whole of the Appeal Board's jurisdiction and powers would be otiose.

15  In Pearce and Geddes, the learned authors, in relation to the generalia specialibus non derogant principle observed as follows:

“[4.30] The principle that provisions of general application give way to specific provision when in conflict is discussed fully in [7.18]-[7.21] relating to repealing Acts. But the approach is also applicable to the resolution of internal conflicts between sections within an Act: Perpetual Executors and Trustees Assoc of Australia Ltd v FCT (1948) 77 CLR 1 at 29. An Act may well contain provisions of a general nature and also provision relating to a particular subject matter. It is commonsense that the drafter will have intended the general provisions to give way should they be applicable to the same subject matter as is dealt with specifically: Refrigerated Express Lines (A’ Asia) Pty Ltd v Australian Meat and Live-stock Corp (1980) 29 ALR 333 at 347. A particular example of the approach in question was demonstrated in Commercial Radio Coffs Harbour Ltd v Fuller (1986) 66 ALR 217. Gibbs CJ and Brennan J at 219 ruled that a general provision making non-compliance with a provision of the Act an offence had to be read down if another law prohibited the activity that the Act required. See also Smith v R (1994) 125 ALR 385 at 391.”

16  In dealing with the application of the principle within a particular Act, the learned authors further said at par 4.30:

“The generalia specialibus rule should, it is suggested, be observed more strictly in the interpretation of provisions in a particular Act that in the case of the separate enactments. In the latter circumstance, it may well be that the drafter did not consider the effect of the competing Acts. When a single document is being considered, however, the drafter will be more likely to have relied on the rule. White v Mason [1958] VR 79 affords a good example of this. ‘Licensed premises’ were expressly excluded from the operation of a part of the Health Act 1956 that required the registration of premises selling food. Without such exclusion the part would normally have been taken to have applied to those premises. The Act also contained general catch-all provisions. Herring CJ considered that the express exclusion of licensed premises from the part of the Act that would otherwise specifically have applied to them indicated an intention that they should also be excluded from the general provisions of the Act.”

17  It was this principle of statutory interpretation that the Full Bench relied upon in Bellamy.

18  It is clear from the plain language of the relevant provisions of the Act, that the Appeal Board's jurisdiction is relatively narrow and specific to deal with appeals brought in respect of the matters set out in s 80I(1)(a) to (e) and it has the power is to “adjust all such matters”. By contrast, the jurisdiction and powers of an Arbitrator under s 80E of the Act, are general and broad, and in my view, the remedies available under both s 80E(5) and under s 80I(1) are different. There may be some scope for conflict if there was to be concurrent jurisdiction.

19  In my opinion, taking the legislation as a whole, applying the principle of interpretation referred to above, the draftsperson of Division 2 of Part IIA of the Act, did not intend there to be concurrent jurisdiction exercised by both the Arbitrator and the Appeal Board in relation to remedies for the dismissal of government officers. Government officers who are dismissed in the circumstances set out in s 80I(1) only have available to them the jurisdiction of the Appeal Board in respect of an appeal commenced under s 80I of the Act.

(i) Under s 78(2) of the PSM Act, Parliament consciously provided only certain Part 5 decisions or findings can be liable to a merits challenge. Decisions like full pay suspensions, breach of discipline findings without disciplinary action, or improvement action, cannot be challenged under s 78(2).

(j) In contrast, the SSTU’s approach would use the Commission’s general jurisdiction under s 23(1) of the IR Act to defeat Parliament’s specific intent that only a narrow class of Part 5 decisions can be subject to a merits challenge.

The hearing

Legislative history

10      This matter involves the statutory construction of s 23(3)(d) of the IR Act.

11      The parties’ written submissions raised competing contentions on Parliament’s intention for enacting s 23(3)(d). Therefore, I requested the parties address the construction of s 23(3)(d) by reference to Parliament’s intention when it was enacted.

12      I find extrinsic material should be considered as it can assist in ascertaining the meaning of s 23(3)(d): Interpretation Act 1984 (WA), s 19.

13      Section 23 of the Industrial Arbitration Act 1979 (WA) (IA Act) as passed, did not include a provision similar to s 23(3)(d) of the IR Act.

14      The Industrial Arbitration Amendment Act 1980 (WA) (Amending Act), an Act to amend s 23 of the IA Act, introduced s 23(1)(a) to the IA Act, the precursor to s 23(3)(d) of the IR Act. Section 2 of the Amending Act states: (emphasis added)

2. Section 23 of the principal Act is amended in subsection (1) by deleting “.” at the end and substituting the following–

“ , but, notwithstanding any provision of this section or any other provision of this or any other Act, the Commission does not have jurisdiction of any kind– 

(a)  in any matter of the suspension from duty in, discipline in, dismissal from, termination of, or reinstatement in, employment of any employee or any one of a class of employees if there is provision, however expressed, by or under any other Act for or in relation to any one or more of the following–

(i)  suspension from duty in that employment;

(ii)  discipline in that employment;

(iii)  dismissal from that employment;

(iv)  termination of that employment,

and there is provision, however expressed, by or under that other Act for an appeal in any one or more of the matters referred to in subparagraphs (i) to (iv) inclusive of this paragraph; or

15      The TAFE submits that the former s 23(1)(a) of the IA Act is worded slightly differently but is relevantly identical to s 23(3)(d) of the IR Act, using the same language of ‘there is provision, however expressed, by or under that other Act for an appeal’.

16      The then Minister for Labour and Industry, in a Second Reading speech to the Amending Act [Hansard, 12 November 1980, 3419-3420] (Second Reading Speech) stated:

Another fault in section 23 of the Industrial Arbitration Act 1979 has come to the attention of the Government and will be corrected by this Bill.

Prior to the Industrial Arbitration Act 1979 coming into operation from 1 March 1980, there had existed in some particular Statutes provisions relating to disciplinary matters in respect of staff employed. Examples are the Police Act, the Mental Health Act and the Prisons Act.

Those Statutes also provide for various forms of appeal for staff against decisions of the employer to take disciplinary action against the employee. The appeal is determined by a specially constituted appeal tribunal established under the particular Statute.

The Government did not intend that these special arrangements should be affected by the Industrial Arbitration Act 1979. Advice given to the Government is that the provisions of the Industrial Arbitration Act prevail over those of the particular Statutes. The other purpose of this Bill, therefore, is to rectify that problem and ensure that the circumstances which applied before 1 March 1980, are retained.

17      Section 23(3)(d) of the IR Act was enacted by s 15 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 (WA) (Repeal Act) repealing and replacing the former s 23 to include the present s 23(3)(d). The TAFE submits that s 23(3)(d) has remained on the same terms since the Repeal Act.

18      The TAFE submits the Repeal Act Parliamentary material does not assist with interpretating s 23(3)(d). It argues s 23(3)(d) remained essentially identical when s 23 was reorganised by the Repeal Act, which could explain why Parliament did not specifically discuss it then.

19      The TAFE submits the Second Reading Speech notes various forms of appeal in different statutes when s 23(1)(a) of the IA Act was enacted. It argues this supports ‘however expressed’ having an expansive meaning, capturing any provision conferring a right to challenge a disciplinary decision.

20      The Second Reading Speech refers to statutes, such as the Mental Health Act, containing provisions relating to disciplinary matters and ‘various forms of appeal for staff against decisions of the employer to take disciplinary action against the employee.’

21      The SSTU refers to Regulation 88 of the Mental Health Act 1962 (WA), reprint 24 August 1979, as resembling s 23(1)(a) of the IA Act, with two necessary elements; the discipline element and the appeal element: (emphasis added)

88. (1)  The Governor may make such regulations as he thinks fit for the carrying out and giving effect to this Act.

(2) Without limiting the generality of subsection (1) of this section, regulations may be made for, or in respect of –

(a)  the control, employment and discipline of medical officers, officers and other employees of the Department and appeals by employees, or a class of employees, against disciplinary action;

22      The SSTU submits s 47 of the Repeal Act brought several previously external constituent authorities into the IR Act, firstly the Government School Teachers Tribunal.

23      The SSTU relies on s 78(1) of the Repeal Act referring to the Government School Teachers Tribunal having exclusive jurisdiction to enquire into and deal with any industrial or other matter, and to hear and determine an appeal: (emphasis added)

78. (1)  Subject to Division 3 of Part II, the Tribunal has exclusive jurisdiction–

(a)  to enquire into and deal with– 

(i)  any industrial matter relating to a teacher, a group of teachers or teachers generally; and

(ii)  any matter concerning the interpretation or application of any Act or regulation governing the service of a teacher, a group of teachers or teachers generally or concerning any inequity arising out of the application of any such Act or regulation;

and

(b)  to hear and determine–

(i)  an appeal by a teacher against a recommendation of the Director-General recommending the promotion of a teacher to a new office or vacancy in the teaching staff of the Department;

(ii)  an appeal by a teacher against a decision of the Director-General in relation to the salary fixed with respect to the teacher at the time of his appointment to the Department;

(iii)  an appeal by a teacher against any punishment for alleged misconduct imposed on him under the Education Act 1928 other than a punishment that is a reprimand or a fine that does not exceed $50;

(iv)  an appeal by a teacher against the amount of the rent of a house, being a house that was completed and ready for occupation prior to 1 January 1946, that is provided for his use by the Department and that is valued or revalued pursuant to the regulations made under the Education Act 1928.

24      The SSTU relies on s 79 of the Repeal Act referring to matters brought to the Government School Teachers Tribunal by referral or appeal: (emphasis added)

79. (1)  An industrial matter may be referred to the Tribunal under section 78(1)(a)(i) by an organization or association or by the Minister for Education.

(2)  A matter may be referred to the Tribunal under section 78(1)(a)(ii) by the Minister for Education or an organization, or jointly by the Minister for Education and an organization.

(3)  An appeal to the Tribunal may be instituted by the teacher concerned or by an organization on his behalf.

25      The SSTU relies on s 80F of the Repeal Act as referring to matters being referred to an Arbitrator: (emphasis added)

80F. (1) Subject to subsections (2) and (3) an industrial matter may be referred to an Arbitrator under section 80E by an employer, organization or association or by the Minister.

(2)  A claim mentioned in section 80E(2)(a) may be referred to an Arbitrator by the Government officer concerned, or by an organization on his behalf, or by his employer.

(3)  A claim mentioned in section 80E(2)(b) may be referred to an Arbitrator by an organization or an employer.

26      The SSTU relies on s 80I of the Repeal Act as referring to the Public Service Board having jurisdiction to hear and determine appeals by any public servant, and s 80J using the language of the institution of an appeal: (emphasis added)

80J. An appeal under section 80I–

(a) shall be instituted in the prescribed manner and within the prescribed time;

(b)  may be instituted by the public servant or other Government officer concerned or by an organization on his behalf.

27      The SSTU submits that the use of ‘appeal’ and ‘referral’ shows Parliament understood them as two legally distinct procedures.

28      The SSTU relies on the enactment of the PSM Act, in 1994, and the adoption of a rigid dichotomy of an ‘appeal’ under s 78(1) and a ‘referral’ under s 78(2). The SSTU submits that Parliament could have amended s 23(3)(d) of the IR Act to cover a s 78(2) referral, or alternatively, drafted s 78(2) of the PSM Act to provide for an ‘appeal’ to the Commission. The SSTU submits that Parliament intentionally set up a separate arrangement under the PSM Act.

29      The SSTU also relies upon the Public Sector Reform Act 2010 (WA), s 95, adding s 78(5) to the PSM Act, referring to a narrow limited judicial-type appellant review to the Public Sector Appeal Board, and a referral to the Commission for determination in its general jurisdiction: (emphasis added)

(5)  If it appears to the Industrial Commission or the Public Service Appeal Board that the employing authority failed to comply with a Commissioner’s instruction or the rules of procedural fairness in making the decision or finding the subject of a referral or appealed against, the Industrial Commission or Public Service Appeal Board –

(a)  is not required to determine the reference or allow the appeal solely on that basis and may proceed to decide the reference or appeal on its merits; or

(b)  may quash the decision or finding and remit the matter back to the employing authority with directions as to the stage at which the disciplinary process in relation to the matter is to be recommenced by the employing authority if the employing authority continues the disciplinary process.

30      The SSTU submits the legislative history shows Parliament could have excluded the Commission’s general jurisdiction for non-Government Officers by using ‘appeal’ instead of ‘referral’ in 1994 and 2010. As it did not, this supports access to the Commission’s general jurisdiction for non‑Government Officers and their unions.

Statutory construction

31      The parties referred to the principles of statutory construction in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (WorkPac) [106]:

It is ordinarily considered a sound rule of construction that the same word appearing in different parts of a statute should be given the same meaning. Such an assumption is a logical starting point or a sensible working hypothesis, particularly where an expression is used in the same division or in closely proximate provisions of a statute. However, it is not an assumption that is to be rigidly adopted and it may be rebutted where the context, purpose or surrounding text provide reason to do so. Whether the context, purpose or surrounding text so require must be considered on a case by case basis: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) [2018] FCAFC 88 at [3] (Allsop CJ); Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452; Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at [11] (Mason J); Secretary, Department of Social Security v Copping [1987] 73 ALR 343 at 347-348 (Jenkinson J); Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523 at [14] (Moore J); and The State of Queensland (Queensland Health) v Chi Forest (2008) 168 FCR 532 at [41] (Black CJ).

Other references to ‘however expressed’ in the IR Act

32      Other than in s 23(3)(d), the term ‘however expressed’ is used in s 43(2) and s 51A(4)(b) of the IR Act.

33      Section 51A(4)(b) of the IR Act states: (emphasis added)

51A. Public sector discipline, General Orders as to

(1)  Subject to this Act, the Commission may in respect of a public authority and its employees, on application by the Minister, UnionsWA or an organisation with sufficient interest in the matter –

(a)  make a General Order or General Orders with respect to one or more of the following –

(i)  suspension from duty in employment; and

(ii)  discipline in employment; and

(iii)  dismissal from employment; and

(iv)  termination of employment,

and with respect to any related matter; and

(b)  add to, vary or rescind any General Order so made.

…

(4)  A General Order in relation to a matter referred to in subsection (1)(a) must not be made so as to apply to –

(a)  any employee whose conditions of employment may not be determined by the Commission; or

(b)  any employee in relation to whom –

(i)  there is provision, however expressed, by or under any other Act for or in relation to that matter; and

(ii)  there is provision by or under that other Act for an appeal in that matter; or

(c)  any member of the academic staff of a post-secondary education institution.

34      The TAFE submits that s 51A(4)(b) is intimately connected with s 23(3)(d), preventing General Orders being made in relation to discipline for certain specified matters. The matters are essentially the same, although a smaller subset, than those specified in s 23(3)(d). Thus, the phrase ‘however expressed’ carries the same meaning in both s 23(3)(d) and s 51A(4)(b).

35      The SSTU submits that although s 51A(4)(b) is framed in similar terms as s 23(3)(d), s 51A(4)(b)(i) includes the phrase ‘provision, however expressed’ while s 51A(4)(b)(ii) does not include the phrase ‘however expressed’. Similar to s 23(3)(d), s 51A(4)(b)(ii) is concerned with ‘an appeal’.

36      Section 43(2) of the IR Act states: (emphasis added)

43.  Industrial agreement, varying, renewing and cancelling

…

(2)  The Commission may vary an industrial agreement for the purpose of including, omitting or varying a provision, however expressed, that authorises an employer to stand-down an employee.

37      The TAFE submits that the phrase ‘however expressed’ in s 43(2) is used to give an expansive meaning to ‘stand‑down’. Section 43(2) is not intending to prescribe what provision can be included in an industrial agreement, as long as it substantively deals with authorising an employer to stand-down an employee. The provision would not need to use the word ‘stand‑down’. If the provision substantively provided for a stand-down, s 43(2) would apply.

38      The SSTU submits s 43(2) refers to a ‘stand-down’ as the relevant event it is concerned with.

Other references to ‘refer’ and ‘appeal’ in the IR Act

39      The SSTU refers to s 27(1)(t), s 27(1)(u) and s 80E(6) of the IR Act as producing an absurd result if ‘appeal’ and ‘refer’ were to be attributed a common meaning, and ‘refer’ was replaced with ‘appeal’: (emphasis added)

27.  Powers of Commission

(1)  Except as otherwise provided in this Act, the Commission may, in relation to any matter before it –

…

(t)  with the consent of the Chief Commissioner refer the matter or any part of the matter, including any question of interpretation of the rules of an organisation arising in the matter, to the Commission in Court Session for hearing and determination by the Commission in Court Session; and

(u)  with the consent of the Chief Commissioner refer to the Full Bench for hearing and determination by the Full Bench any question of law arising in the matter, other than a question of interpretation of the rules of an organisation; and

80E. Jurisdiction of Arbitrator

…

(6)  Notwithstanding subsection (1), but subject to subsection (7), an Arbitrator may –

(a)  with the consent of the Chief Commissioner refer to the Commission in Court Session for hearing and determination by the Commission in Court Session –

(i)  an industrial matter referred to in subsection (1) or any part of that industrial matter; or

(ii)  any question of interpretation of the rules of an organisation arising in a matter before the Arbitrator;

and

(b)  with the consent of the Chief Commissioner refer to the Full Bench for hearing and determination by the Full Bench any question of law arising in a matter before the Arbitrator, other than a question of interpretation of the rules of an organisation,

and the Commission in Court Session or the Full Bench, as the case may be, may hear and determine the matter, or part of the matter, or question, so referred.

40      The TAFE submits the IR Act provides for rights of reference to the Commission and rights of appeal to the Public Service Appeal Board. It argues use of ‘appeal’ in other provisions of the IR Act does not impact s 23(3)(d). It submits s 23(3)(d), when read in totality, in particular the words ‘however expressed’, clearly intends a broader meaning than ‘appeal’ in other IR Act provisions.

41      Citing the Macquarie Dictionary definition of ‘appeal’ as meaning review by a higher tribunal, the TAFE submits ‘however expressed’ encapsulates an employee applying to another body to review a decision. It argues ‘however expressed’ was intended to capture the range of regimes when s 23(1)(a) of the IA Act was enacted, and necessarily captures future regimes.

42      The TAFE relies on Ayling and Guretti in support of the proposition that the Commission has treated s 78(2) PSM Act referrals as akin to an appeal in the ordinary sense of that word. The TAFE submits that although ‘appeal’ is used in s 78(1) and ‘refer’ in s 78(2), the referral under s 78(2) is in the nature of an appeal, and therefore ousted by s 23(3)(d) of the IR Act.

43      The SSTU relies upon Workpac [107]-[108], [110]-[111]:

107 There is an abundance of authority for the proposition that where the Parliament repeats without alteration words which have been judicially construed, it is presumed to have intended the words to bear the meaning already judicially attributed to them: Re Alcan Australia Limited; Ex Parte Federation of Industrial Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106-107 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ); Electrolux Home Products Pty Limited v Australian Workers’ Union (2004) 221 CLR 309 at [7]–[8] (Gleeson CJ), [81] (McHugh J) and [161]-[162] (Gummow, Hayne and Heydon JJ); Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd (2003) 135 FCR 206 at [171] (Allsop J) and [24] (Branson J); Vidler v Federal Commissioner of Taxation (2010) 183 FLR 440 at [29] (Sundberg, Bennett and Nicholas JJ); Baini v The Queen (2012) 246 CLR 469 at [43] (Gageler J); Informax International Pty Ltd v Clarius Group Limited (2012) 207 FCR 298 at [174] (Besanko, Jagot and Bromberg JJ). The effect of the presumption is that Parliament is taken to know the current law when amending a statute and to have adopted an interpretation unaltered by the amending statute absent any contrary indication. That is, the amended statute is taken to have been enacted against the background provided by existing authority and to endorse that authority.

108  Each case will turn on its own circumstances having regard to the legislative history of the specific statute under consideration and supervening jurisprudence. As Gleeson CJ cautioned in Electrolux at [8], no doubt there are circumstances in which it is artificial, and unpersuasive, to attribute to Parliament a consciousness of a judicial interpretation which might have been placed upon an expression, perhaps years before, and in some different context. However, conversely, the inference is strong in a case, such as this where, in the specialised field of industrial relations legislation, Parliament may readily be taken to have an awareness of the interpretations placed by courts on pivotal definitions: Electrolux [162] (Gummow, Hayne and Heydon JJ) and [81] (McHugh J).

…

110  McHugh JA is further cited by Professors Pearce and Geddes in Statutory Interpretation in Australia, 8th Ed at [4.13]-[4.19]. The discussion in that text divides technical words in two categories – legal technical words and non-legal technical words. Legal technical words are words that have acquired a legal meaning including words which describe an established legal concept or construct. Non-legal technical words are words that have acquired a specialised common or uniform understanding in a particular trade or other particular area of activity or place.

111  Further to the authorities referred to by McHugh JA in support of the general rule that words that have a legal meaning are to be so construed unless a contrary intention appears, O’Connor J in Attorney‑General (NSW) v Brewery Employees’ Union of New South Wales (1908) 6 CLR 469 at 531 said this:

Where words have been used which have acquired a legal meaning it will be taken, prima facie, that the legislature has intended to use them with that meaning unless a contrary intention clearly appears from the context. To use the words of Denman J. in R v Slator: “But it always requires the strong compulsion of other words in an Act to induce the Court to alter the ordinary meaning of a well known legal term.”

44      Relying on Workpac, the SSTU submits that further and in the alternative to ‘appeal’ and ‘referral’ having their ordinary meanings, they have acquired legal meanings.

45      The SSTU also relies on how the parties have approached s 44 applications over the past 20 years.

Purpose and intent of s 23(3)(d)

46      The TAFE submits a purpose of s 23(3)(d) is to leave the review of decisions, reviewable under other Acts, to the limits which exists under those Acts. It argues Parliament expressly limited the types of Part 5 PSM Act decisions that can be challenged, which would be defeated if s 23(3)(d) did not apply to s 78(2). Under the SSTU’s construction, s 44 could be used to challenge any Part 5 decision, such as full pay suspension, contrary to Parliament’s intent.

47      The SSTU submits s 23(3)(d) only intends to oust the Commission’s jurisdiction where the other Act has its own disciplinary proceedings and appeal right for those proceedings.

48      Regarding s 78(2), the SSTU submits the IR Act and PSM Act acknowledge the important quasi‑regulatory role unions play in resolving grievances. While the TAFE argues the SSTU’s interpretation permits it raising industrial matters under s 44 that employees cannot raise under s 78(2) of the PSM Act, the SSTU submits this aligns with s 29 of the IR Act.

Consideration

49      The parties recognise this is the first instance s 23(3)(d) of the IR Act has been raised as a jurisdictional objection to a s 44 application due to s 78(2) of the PSM Act.

50      Determining the Commission’s jurisdiction involves statutory construction, so previous decisions where this jurisdictional objection was not raised do not assist. I agree with the TAFE that previous decisions where parties assumed the Commission had jurisdiction are irrelevant. I place no reliance on previous decisions cited by the parties as supporting past approaches taken by the parties or Commission in such applications.

51      Similarly, as s 23(3)(d) of the IR Act when read with s 78(2) of the PSM Act has not been previously judicially construed, I place no reliance on Workpac [107].

52      Section 23(3)(d) of the IR Act states: (emphasis added)

(3) The Commission in the exercise of the jurisdiction conferred on it by this Part must not –

…

(d)  regulate the … dismissal from ... employment of any employee … if there is provision, however expressed, by or under any other Act for or in relation to a matter of that kind and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind;

53      In this matter, the ‘other Act’ is the PSM Act, specifically, s 78(2): (emphasis added)

78.  Appeals etc. against some decisions under s. 79, 82A, 82, 87, 88 or 92

…

(2)  Despite section 29 of the Industrial Relations Act 1979, but subject to subsection (3), an employee or former employee who —

(a)  is not a Government officer within the meaning of section 80C of that Act; and

(b)  is aggrieved by —

(i)  a decision made in respect of the employee under section 79(3)(b) or (c) or (4); or

(ii)  a finding made in the exercise of a power under section 87(3)(a)(ii); or

(iii)  a decision made under section 82 to suspend the employee on partial pay or without pay; or

(iv)  a decision to take disciplinary action made under section 82A(3)(b), 88(b) or 92(1),

may refer the decision or finding mentioned in paragraph (b) to the Industrial Commission as if that decision or finding were an industrial matter mentioned in section 29(b) of that Act, and that Act applies to and in relation to that decision accordingly.

54      The SSTU accepts that s 78(2) of the PSM Act meets the first element of s 23(3)(d) of the IR Act, regulating employee dismissal. However, the SSTU denies that s 78(2) meets the second element of s 23(3)(d) providing for ‘an appeal’.

55      Despite using ‘refer’, the TAFE submits a s 78(2) referral accords with the expansive meaning of ‘appeal’ in s 23(3)(d) of the IR Act.

56      Thus, the question is whether the words ‘provision, however expressed, by or under that other Act for an appeal in a matter of that kind’ in s 23(3)(d) of the IR Act, encapsulates a decision or finding an employee or former employee may ‘refer’ to the Commission under s 78(2) of the PSM Act.

57      The starting point to determine a provision’s meaning is the text of the statute, having regard to its context and the legislation’s general purpose and policy: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [69]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Limited (No 2) [2010] FCA 652 [9].

58      Where more than one meaning is reasonably open, the court may adopt the meaning which best achieves the purpose of the statutory provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 [4]-[5], [47].

59      Section 29(1)(a)(ii) of the IR Act allows the SSTU to refer an industrial matter to the Commission. Section 44(7)(a)(i) of the IR Act allows the SSTU to apply to the Commission to exercise the powers conferred on it by s 44(1).

60      Further, s 23(1) of the IR Act gives the Commission ‘cognizance of and authority to enquire into and deal with any industrial matter’. However, the authority of s 23(1) is explicitly stated as ‘subject to this Act’. Section 23(1) does not give the Commission an absolute warrant to enquire into industrial matters; it is qualified by reference to other provisions of the IR Act: Bellamy v Chairman, Public Service Board [1986] WAIRC 11579; (1986) 66 WAIG 1579 (Bellamy) at 1581 (Fielding C).

61      It is trite law that when interpreting an Act it must be looked at as a whole. It is well established that when an Act confers both a wide general power and a particular power subject to limitations, the particular overrides the general, where there is inconsistency: Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (Gavan Duffy CJ and Dixon J); 38 ALR 355; Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation and Others (1979-80) 29 ALR 333 at 347 (Deane J); Bellamy at 1581 (Fielding C); Food Preservers Union of Western Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australian Branch (2001) 24 WAR 89 [25]-[26]; 104 IR 393; CSA [14]-[19].

62      Therefore, s 23(3)(d) operates to specifically prohibit the Commission having cognisance of and authority to enquire into and deal with this matter, if the PSM Act contains a ‘provision, however expressed’ for an appeal in relation to Mr Whitehurst’s dismissal.

63      Whilst the SSTU relies on Zurich for its contention that ‘however expressed’ conditions the preceding word ‘provision’, I do not consider Zurich supports this contention for the following reasons:

(a) In Zurich, the Court considered the meaning of ‘provision’ in s 45 of the Insurance Contracts Act 1984 (Cth), which renders void provisions limiting insurer indemnity liability because the insured entered another insurance contract for the same risk.

(b) Zurich did not involve consideration of the phrase ‘provision, however expressed’, only the meaning of ‘provision’ in s 45 of the Insurance Contracts Act 1984 (Cth).

(c) Zurich did not involve consideration of ‘provision’ as it applies to an Act, but rather, the meaning of ‘provision’ as it applies to an insurance contract.

(d) In any event, French CJ, Gummow and Crennan JJ specifically referenced the dictionary definition of ‘provision’ and found that ‘a provision provides “for some particular matter”’ and ‘Each statement is a provision of the contract’ [31]: (footnotes omitted) (emphasis added)

This question requires attention to be given to the meaning of “provision” in s 45(1). The word “provision” has been described rightly as “a word of diverse meanings which slide easily into each other.” As Lord Simonds, who made that comment, observed

“It may mean a clause or proviso, a defined part of a written instrument. Or it may mean the result ensuing from, that which is provided by, a written instrument or part of it.”

It is clear enough that “provision” in s 45(1) is used in the former sense. The relevant definition in the Oxford English Dictionary is:

“Each of the clauses or divisions of a legal or formal statement, or such a statement itself, providing for some particular matter; also, a clause in such a statement which makes an express stipulation or condition; a proviso.”

The important element of that definition is that a provision provides “for some particular matter”. The fact that there may be more than one provision for a particular matter in one numbered clause of a contract is an accident of drafting. The inclusion in one clause of two statements of rights or liabilities in the form “if X, then Z” and “if Y, then Z” has the same effect as the inclusion of those statements in two separate numbered clauses. Each statement is a provision of the contract. There is no requirement to construe s 45(1) so that its operation depends upon accidents of paragraphing or numbering in contracts of insurance. The Underlying Insurance clause contains two statements each specifying a circumstance in which the Hamersley Policy will be reduced to an Excess Insurance policy. Each is properly regarded as a “provision” of that insurance contract. The question whether a clause of an insurance contract may contain a “provision”, within the meaning of s 45(1), with different elements so intertwined that neither can be regarded as a distinct “provision”, does not arise in this case. In the result, s 45(1) operates only to render void that part of the Underlying Insurance clause in the Hamersley Policy which relates to double insurance to which the insured is a party.

64      For the preceding reasons, Zurich does not assist with the construction of s 23(3)(d) which refers to a provision ‘by or under that other Act’, to which the Interpretation Act 1984 (WA) would apply for discerning the meaning of ‘provision’.

65      Further, applying Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [71] (McHugh, Gummow, Kirby and Hayne JJ) and Browne v Director General, Department of Water and Environmental Regulation [2020] WASCA 16 [61] (Buss and Murphy JJ), that a court construing a statutory provision must strive to give meaning to every word of the provision, I am not persuaded by the SSTU’s contention that ‘however expressed’ conditions ‘provision’. Rather, I am persuaded by the TAFE’s contention that ‘however expressed’ conditions the whole phrase.

66      I find this construction consistent with ‘however expressed’ in s 43(2) of the IR Act supporting an expansive meaning of the provision’s subject matter. In s 43(2) the subject matter is a ‘stand‑down’, in s 23(3)(d) the subject matter is an ‘appeal’. I am persuaded by the TAFE that the exact word need not be used, if the provision substantively provides for the subject matter. Applying this to s 43(2) would mean the industrial agreement need not use the word ‘stand‑down’; s 43(2) would be engaged if the industrial agreement substantively provided for a stand-down. Applying this to s 23(3)(d) would mean the other Act need not use the word ‘appeal’; s 23(3)(d) would be engaged if the other Act substantively provided for a right of appeal.

67      Section 23(3)(d) specifically prohibits the Commission dealing with this matter ‘in the exercise of jurisdiction conferred on it by this Part’. The reference to ‘this Part’ in s 23(3)(d) is to Part II, containing s 8 to s 80 of the IR Act.

68      As s 23(3)(d) applies to the exercise of jurisdiction conferred by s 8 to s 80 of the IR Act, I place no reliance on the parties’ submissions regarding sections outside of s 8 to s 80, such as provisions relating to constituent authorities, the Public Service Arbitrator and the Public Service Appeal Board.

69      In s 8 to s 80 of the IR Act, other than in s 23(3)(d), ‘appeal’ or ‘appealed’ is used in s 24(2), s 34(4), s 42G(6), s 44(12c), s 48(11), s 48(12), s 49, s 49J(6a)(b), s 49J(8)(a), s 49J(8)(b), s 51A(4)(b)(ii) and s 69(12). In these sections:

(a) Section 24(2) refers to s 49 and s 90, namely appeals to the Full Bench and the Western Australian Industrial Appeal Court.

(b) Section 34(4) states that ‘Except as provided by this Act, no award, order, declaration, finding, or proceeding of the Commission is liable to be challenged, appealed against, reviewed, quashed, or called in question by or in any court’.

(c) Section 42G(6), s 44(12c), s 49J(8)(a) and s 49J(8)(b) limit the types of orders and decisions of the Commission that are appealable under s 49.

(d) Section 48(11), s 48(12) and s 69(12) specify that a Board of Reference’s decision, and the Registrar’s notification that a request for an election to be conducted for office in an organisation has not been duly made, are appealable to the Commission in Court Session.

(e) Section 49 outlines the Full Bench’s authority in hearing appeals of Commission decisions.

(f) Section 49J(6a)(b) limits the Registrar’s power to revoke an authorised representative’s authority where an appeal under s 49 of a Commission’s order revoking or suspending an authority may be instituted or is pending or in progress.

(g) Section 51A(4)(b)(ii) is in similar terms to s 23(3)(d).

70      Considering the other usages of ‘appeal’ in s 8 to s 80 of the IR Act, I am persuaded by the TAFE’s contention that the use of ‘appeal’ in other provisions of the IR Act does not impact on s 23(3)(d). I conclude there is nothing in these other IR Act provisions which derogates from the TAFE’s contention that s 23(3)(d), read in its entirety with the words ‘however expressed’, is intended to convey a broader meaning than ‘appeal’ as used in these other provisions.

71      Having reviewed the legislative history, I agree with the TAFE that s 23(1)(a) of the IA Act is relevantly identical to s 23(3)(d) of the IR Act: (emphasis added)

s 23(1)(a):  and there is provision, however expressed, by or under that other Act for an appeal in any one or more of the matters referred to in subparagraphs (i) to (iv) inclusive of this paragraph;

s 23(3)(d):  and there is provision, however expressed, by or under that other Act for an appeal in a matter of that kind;

72      Therefore, I find the Amending Act’s Second Reading Speech significant for construing s 23(3)(d).

73      The Second Reading Speech provides non-exhaustive examples of ‘that other Act’ and refers to ‘that other Act’ ‘providing for various forms of appeal for staff against decisions of the employer to take disciplinary action against the employee. The appeal is determined by a specially constituted appeal tribunal established under the particular Statute.’

74      The Macquarie Dictionary defines ‘various’ as meaning:

adjective 

1.   differing one from another, or of different kinds, as two or more things.

2.   several or many: in various parts of the world.

3.   exhibiting or marked by variety or diversity.

4.   differing in different parts, or presenting differing aspects.

75      The Macquarie Dictionary defines ‘form’ as including the following meanings:

noun 

18.   a conventional method of procedure or behaviour.

20.   procedure, according to a set order or method.

24.   manner or method of performing something.

25.   type or kind: surfing as a form of sport.

76      I find that the reference in the Second Reading Speech to ‘various forms of appeal’ supports a broad construction of ‘of appeal’ to encompass differing procedures of appeal, differing manners or methods of appeal, and differing types or kinds of appeal. In agreement with the TAFE, I conclude that ‘various forms of appeal’ carries an expansive meaning, capturing any provision that confers upon an employee the right to challenge a dismissal by appeal to a higher tribunal for review, consistent with the ordinary meaning of appeal.

77      The ordinary meaning of appeal, as being an application for review by a higher tribunal, aligns with the reference in the Second Reading Speech to ‘the other Acts’ establishing a ‘specially constituted appeal tribunal’ to determine the appeal.

78      I also find this construction consistent with the intent of s 23(3)(d), as contended by the SSTU, to oust the Commission’s jurisdiction if the other Act ‘has its own internal disciplinary proceedings and right of appeal in respect of those disciplinary proceedings’: (ts 32).

79      Given this expansive definition, I agree with the TAFE that substantively, the right to refer a matter to the Commission under s 78(2) of the PSM Act is such a right.

80      The SSTU relies on Whitfeld to contend that Parliament’s maintenance of a rigid dichotomy between ‘appeal’ and ‘reference’ in the PSM Act points to an intention towards different legal technical meanings. However, in Whitfeld, the provision under consideration (s 59 of the Crown Lands Act of 1895) was judicially considered by the Supreme Court of New South Wales in 1898. That court held that a reference under s 59 was not an appeal within the meaning of s 20 of the Act of 1884. It was ‘after that decision’ that ‘Parliament passed the additional words in 1895’ and ‘discriminated between “appeal” and “reference”, all point to the legislative recognition of the legal distinction between those terms.’: Whitfeld at 308.

81      The parties acknowledge that this is the first instance of this jurisdictional issue having been raised. Therefore, Whitfeld is distinguishable. Further, in the context of the generalia specialibus rule, it is more strictly applied in the interpretation of provisions within an Act, than in separate Acts, as in a later enactment ‘it may well be that the drafter did not consider the effect of the competing Acts.’: CSA [16] citing Pearce and Geddes [4.30].

82      Taking into account the practical ways in which the IR Act and PSM Act operate together, I do not consider that this construction of s 23(3)(d) of the IR Act raises an irreconcilable conflict with the use of ‘refer’ in s 78(2) of the PSM Act: Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 at 294.

83      In the event that a conflict does arise, I consider s 23(3)(d) of the IR Act to be a special provision, and s 78(2) of the PSM Act to be a provision containing general words, which, although enacted later, must cede to s 23(3)(d), even though the general words were maintained by the later enactment of s 78(5),: Sarris v Penfolds Wines Pty Ltd [1962] NSWR 801 at 803; McLean v Kowald (1974) 9 SASR 384 at 388 (Bray CJ).

84      I consider the findings of the Industrial Relations Court of Australia in Maggs v Comptroller General of Customs (1995) 58 IR 40 (Maggs), in which the issue for determination was whether Pt VIA of the Industrial Relations Act 1988 (Cth) conferring a right of action in respect of unlawful termination, applied to the dismissal of a Commonwealth public servant pursuant to the Public Service Act 1922 (Cth), at 44-45 apropos:

Dunn was a case where the general legislation (the Industrial Arbitration Act predated the special legislation (s 99(11A) of the Local Government Act). So was Saraswati v The Queen (1991) 172 CLR 1, in which Gaudron J said at 17:

“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other: . . ”

In the present case the special legislation (the public service legislation) came first. But that makes no difference. The rule of construction stated by Gaudron J is equally applicable.

…

If that had been Parliament's intention, it would have been easy for it to say so. Not only did Parliament not say so; without any relevant modification it introduced Pt VIA into a statute that already bound the Crown in right of the Commonwealth. See s 6. More fundamentally, there is no contradiction between the two sets of legislation. The public service legislation is concerned to establish principles of behaviour of the Australian Government as an employer and to stipulate the rights of Australian Government employees during their period of employment, including in respect of any allegation of failure to fulfil duty. As counsel for the applicant submitted, the public service legislation “has the object of providing for a pre-termination procedure” whereas the industrial legislation “seeks to remedy termination of employment after the event of termination where there has been a violation of rights”. In other words until the termination takes effect the public service legalisation governs the situation. It is only after that time that the Industrial Relations Act comes into play. There is no point of time during which both sets of legislation apply.

85      Similar to the Acts in Maggs, in Mr Whitehurst’s case, the PSM Act provides the pre‑termination procedure, and the IR Act seeks to remedy termination of employment after the event of termination.

86      Therefore, applying Maggs, there is no reason to impute to Parliament an intention that s 23(3)(d) not apply to s 78(2) of the PSM Act. Parliament introduced a right under s 78(2) of the PSM Act to challenge a dismissal in the Commission as though it was an industrial matter in s 29 of the IR Act, in circumstances where the standing to bring a matter under s 29, was constrained by s 23(3) of the IR Act.

87      Under s 78(2)(b) of the PSM Act, an employee can challenge the following matters in the Commission:

(i)  a decision made in respect of the employee under section 79(3)(b) or (c) or (4); or

(ii)  a finding made in the exercise of a power under section 87(3)(a)(ii); or

(iii)  a decision made under section 82 to suspend the employee on partial pay or without pay; or

(iv)  a decision to take disciplinary action made under section 82A(3)(b), 88(b) or 92(1),

88      I am persuaded by the TAFE’s contention that enacting s 78(2)(b), to specify what matters employees can and cannot challenge in the Commission, would be defeated if s 23(3)(d) did not apply to s 78(2).

89      In addition to the preceding reasons that s 23(3)(d) should be construed with an expansive meaning of appeal, such a construction is also consistent with its purpose, as the TAFE contends, to leave the review of decisions made under the PSM Act to and within the limits of the PSM Act.

Conclusion

90      For the preceding reasons, I am satisfied that s 23(3)(d) of the IR Act applies.

91      Therefore, the Commission lacks jurisdiction to hear the SSTU’s s 44 application.

92      Consequently, application C 38 of 2023 will be dismissed for want of jurisdiction pursuant to s 27(1)(a)(iv) of the IR Act.