REFERRAL OF A DECISION TAKEN BY THE EMPLOYER ON 21 MAY 2025

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00775

CORAM : Commissioner C Tsang

HEARD : On the papers

DELIVERED : THURSday, 11 September 2025

FILE NO. : P 17 OF 2025

BETWEEN : Charmaine Mellor

  Applicant

AND

Director General Department of Energy, Mines, Industry Regulation and Safety

  Respondent

CatchWords : Whether the Commission has jurisdiction pursuant to s 36AA(2)(b) of the Industrial Relations Act 1979 (WA) to hear and determine a challenge to the transfer decision and refusal of the Leave Without Pay request

Legislation : Industrial Relations Act 1979 (WA)

  Interpretation Act 1984 (WA)

  Public Sector Management Act 1994 (WA)     

Result : Jurisdictional objection upheld; Application dismissed

Representation:

Applicant : Ms C Mellor (on her own behalf)

Respondent : Mr J Carroll (of counsel)

Cases referred to in reasons:

Cross v Economic Regulation Authority [2021] WAIRC 00476

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

Patole v Child & Adolescent Health Service [2024] WASCA 126

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

Reasons for Decision

Background

1         On 10 June 2025, the applicant (Ms Mellor) filed a Form 5 – Application to Refer Public Sector Matter (Form 5), challenging the following decisions on the basis that they relate to the ‘interpretation of a conditions of service provision’ under s 36AA(2)(b) of the Industrial Relations Act 1979 (WA) (IR Act):

On 2 May 2025, the Applicant was notified of a permanent transfer to a new role, despite having been on extended leave, and without prior consultation or procedural fairness. The decision was issued via email without attachment of the job description and followed by inconsistent communications via SMS from differing staff. Attempts to query and resolve the matter internally were dismissed, with the Respondent claiming the decision was already implemented and could not be reversed.

On 16 May 2025, the Applicant submitted a request for Leave Without Pay (LWOP), to begin after the exhaustion of paid leave. The request was refused by Acting Commissioner Tim Banfield, without the decision‑maker seeking information from the Applicant to enable assessment ‘on the merits’ as required by clause 29 of the Award. The refusal relied on vague claims of ‘impact on the team,’ without identifying how this satisfied the ‘inconvenience’ threshold in clause 29(2)(a).

When the Applicant sought clarification and requested the matter be referred back to the decision‑maker, General Manager Fiona Donaldson expressly declined to do so. Her refusal to return the matter for proper determination has effectively cut off the Applicant’s ability to raise a formal grievance, frustrating the operation of clause 65 of the Award and section 29(1)(l) of the [Public Sector Management Act 1994 (WA) (PSM Act)].

2         On 26 June 2025, the respondent filed a Form 4 – Response (Form 4), raising the jurisdictional objection that the matters in Ms Mellor’s Form 5 fail to meet the requirements of s 36AA(2)(b).

3         The matter was listed for a Directions Hearing on 15 July 2025, at which Directions were made for the following issues to be determined as preliminary issues on the papers:

(a) The Commission’s jurisdiction to determine the matters in Ms Mellor’s Form 5.

(b) Ms Mellor’s application for leave of the Commission to accept her Form 5 out of time pursuant to ss 29(2)(b) and 29(3) of the IR Act.

Evidence

4         On 29 July 2025, Ms Mellor filed an affidavit, stating:

(a)               At [18]–‍[21]:

18. I allege that the actions taken by the respondent amount to a failure to comply with key statutory obligations under the PSM Act, including failure to act fairly, reasonably and with procedural fairness.

19. The decision to permanently transfer me was made without proper consideration of my skills, qualifications and experience, and without adequate consultation or adherence to fair process. The respondent has failed to apply merit principles and did not provide me with an opportunity to be genuinely heard. This breaches requirements of procedural fairness.

20. Further, the respondent did not act with the sensitivity or fairness expected under the PSM Act, especially given their knowledge of my medical history and the psychological harm caused by their previous actions. Despite these circumstances, they have failed to provide a safe and healthy work environment, and have continued to make adverse decisions with full awareness of the impact on my wellbeing.

21. Additionally, the respondent refused to acknowledge the failure to apply the principles required or escalate my formal grievance, contrary to policy and industrial agreements. The process used was fundamentally flawed. Their decision-making contravenes merit principles, general principles of public administration and management, including fairness and integrity. This has left me with no internal avenue to resolve the matter and has reinforced the respondent’s failure to comply with their statutory obligations. …

Late Filing

(b)               The permanent transfer decision was signed by the A/Director General on 2 May 2025. Although the respondent sent an email on 16 April 2025, she was not notified of its existence until 1 May 2025 and only read it on 2 May 2025.

(c)               She promptly sought clarification of the transfer decision from Fiona Donaldson (General Manager People Consulting, Health and Safety) (Ms Donaldson). While Ms Donaldson indicated that she would be granted an extension of time in which to respond to the transfer decision, later that day Ms Donaldson emailed to say that the transfer decision had already been finalised and she was expected to present for work on Monday, 5 May 2025.

(d)               Thereafter, she sought to resolve the matter with the respondent directly. She filed the Form 5 shortly after her efforts for internal resolution failed.

(e)               Accordingly, if the transfer decision was finalised on 2 May 2025, the 11‑day delay in the filing of the Form 5 is minor, and:

(i)                 Was caused by the respondent’s lack of compliance with internal processes.

(ii)               Is not opposed by the respondent.

(iii)            Has not caused any prejudice to the respondent.

5         Ms Mellor attached the following to her affidavit:

(a)               Her employment contract, dated 3 August 2023, appointing her to the permanent full‑time position of Executive Officer, Level 5, Consumer Protection Division, reporting to the Executive Director, Consumer Protection subject to the following terms and conditions:

1. Your employment is in accordance with the [PSM Act] and the conditions outlined in this contract of employment.
2. Your conditions of employment are covered under the Public Service Award 1992 [(Award)], and the Public Sector CSA Agreement 2022 as amended or replaced.

(b)               The ‘Notification of Change – Permanent Transfer’ letter dated 2 May 2025:

I write to you regarding my letter dated 16 April 2025 proposing to transfer you into the Senior Investigator role. I note you were notified of the proposed transfer on 16 April 2025 and were provided an opportunity to respond by 28 April 2025. In the absence of any response, I have made the decision to transfer you into the Senior Investigator role [redacted] within Investigations Branch B, under section 65 of the [PSM Act].

This transfer is effective 5 May 2025, it is expected you will return to work on this date and report to [redacted].

You have previously received a copy of the Job Description Form.

If you have any queries or wish to seek clarification on this matter, please contact [redacted].

(c)               The following emails exchanged with Ms Donaldson on the transfer decision:

(i)                 Email from Ms Donaldson, dated 19 February 2025, 10:17am.

(ii)              Email to Ms Donaldson, acknowledging receipt of the email at [5(c)(i)] above.

(iii)            Email to Ms Donaldson, dated 2 May 2025, 1:59pm.

(iv)            Email from Ms Donaldson, dated 2 May 2025, 3:36pm.

(v)               Email to Ms Donaldson, dated 4 May 2025, 6:29pm.

(vi)            Email from Ms Donaldson, dated 5 May 2025, 7:59am.

(vii)          Email to Ms Donaldson, dated 5 May 2025, 1:53pm.

(viii)        Email from Ms Donaldson, dated 5 May 2025, 3:00pm.

(ix)            Email to Ms Donaldson, dated 6 May 2025, 2:47pm.

(x)               Email from Ms Donaldson, dated 6 May 2025, 4:17pm.

(d)               The following emails exchanged on the LWOP decision:

(i)                 Email from Kenneth Dobson, General Manager Investigations (Mr Dobson), dated 21 May 2025, 1:33pm.

(ii)              Email to Mr Dobson, copied to Ms Donaldson, dated 27 May 2025, 1:41pm.

(iii)            Email from Ms Donaldson, dated 27 May 2025, 4:09pm.

(iv)            Email to Ms Donaldson, copied to Mr Dobson, dated 28 May 2025, 3:23pm.

The parties’ submissions

6         On 30 July 2025, the respondent filed written submissions, stating:

(a)               Pursuant to s 29(1)(d) of the IR Act, a ‘public service officer’ has standing to refer a ‘decision mentioned in section 36AA(2)(b)’ of the IR Act to the Commission.

(b)               Section 36AA(2)(b) of the IR Act provides that the Commission has jurisdiction to enquire into and deal with ‘a decision of an employing authority of a public service officer relating to the interpretation of a conditions of service provision.’

(c)               ‘Conditions of service provision’ is defined in s 36AA(1) of the IR Act to mean ‘a provision of the [PSM Act] relating to the conditions of service of public service officers, other than the salaries and allowances of public service officers.’

(d)               For there to be jurisdiction, it is necessary that the decision must ‘relate to’ the interpretation of a provision of the PSM Act relating to the conditions of service of public service officers, other than salaries and allowances.

(e)               By s 46(1) of the Interpretation Act 1984 (WA) (Interpretation Act), ‘a reference in a written law to a written law shall be construed so as to include a reference to any subsidiary legislation made under the written law’. Accordingly, the relevant decision could relate to the interpretation of a provision of the regulations made under the PSM Act.

Transfer decision

(f)                The decision to transfer Ms Mellor was made pursuant to the power to transfer public service officers in s 65 of the PSM Act.

(g)               Given the state of the authorities, it may be accepted that s 65 is a ‘conditions of service provision’: Cross v Economic Regulation Authority [2021] WAIRC 476 (Cross) [56]–‍‍‍‍‍[64].

(h)               However, there is nothing in the Form 5 to identify the alleged misinterpretation or misconstruction of a conditions of service provision: Cross [52].

(i)                 The Form 5 and Ms Mellor’s affidavit [18]–‍[21] (at [4(a)] above), indicate that Ms Mellor’s grievance is with the manner in which the respondent applied the PSM Act in exercising discretion.

LWOP decision

(j)                 The LWOP decision was made pursuant to cl 29 of the Award.

(k)               As the Award is not the PSM Act or subsidiary legislation under the PSM Act, a decision made under the Award does not ‘relate to’ the interpretation of the PSM Act relating to the conditions of service of public service officers.

7         On 26 August 2025, Ms Mellor filed her written submissions, stating:

6. The decisions the subject of this application are:

(a) the outcome of my application for [LWOP], made on grounds unrelated to the merits;

(b) the blocking and failure of the internal grievance process; and

(c) my permanent transfer.

7. Each of these decisions involves the incorrect interpretation and application of conditions of service provisions of the PSM Act, including:

•            s 65(1)(a) (transfer of officers based on suitability and qualifications);

•            s 9(b)–(c) (principles of conduct: integrity, respect, sensitivity);

•            s 8(1)(c), (e) (human resource principles: fair treatment, safe and healthy working environment); and

•            s 29(1)(l) (requirement for proper resolution of employee grievances).

8. The LWOP refusal was made without seeking relevant information from me and solely by reference to operational needs. That approach is inconsistent with the PSM Act’s principles of fairness and sensitivity.

9. The Commission’s role is not to re-make management decisions, but to determine whether the employing authority has correctly interpreted and applied the statutory provisions. My case is that it has not.

A. The leave without pay decision

10. The Respondent submits that the LWOP refusal was made under the Award and is therefore outside jurisdiction. I disagree:

•            The Award and Agreement do not displace the statutory obligations in the PSM Act. Decisions under the Award must still comply with the conduct and HR principles in the PSM Act.

•            The refusal letter shows the decision was made by a delegated authority. The reasons given were operational (‘impact on the team’) and failed to apply the statutory requirements of fairness and procedural fairness.

•            The true issue is not the Award itself, but whether the Respondent complied with its statutory obligations under the PSM Act when making the decision.

•            My attempts to pursue a grievance about the decision were blocked, frustrating the PSM Act requirement for grievance resolution and leaving me with no alternative but to approach this Commission.

11. The LWOP decision was made without a merits-based assessment, contrary to s 8 of the PSM Act. It therefore engages a conditions of service provision within the meaning of s 36AA(2)(b) of the IR Act.

B. The transfer decision

12. The Respondent accepts that the transfer was made under s 65 of the PSM Act and that s 65 is a conditions of service provision. They argue, however, that my complaint concerns only the exercise of discretion. That is incorrect.

13. My case is that the decision involved misinterpretation and misapplication of the law:

•            ‘Suitability’ in s 65 was misconstrued because my qualifications and experience were not considered.

•            Relevant considerations were disregarded.

•            I was denied procedural fairness as I was not consulted and reasons were not properly provided.

14. These errors concern the meaning and requirements of statutory provisions, not simply the exercise of discretion. That falls within s 36AA(2)(b).

15. The Respondent relies on [Cross]. In Cross, the Commission found no jurisdiction because the applicant’s grievance was only about how a discretion was exercised. My case is different: I allege that the decision‑maker misunderstood and misapplied the meaning of ‘suitability’ in s 65, and failed to comply with the HR and conduct principles in ss 8 and 9. That is a matter of statutory interpretation and falls squarely within jurisdiction.

16. At paragraph 5 of the Respondent’s submissions, they cite ‘s 32AA(2)(b)’ of the IR Act. That section does not exist. While likely a typographical error, it highlights the careless approach the Respondent has taken toward presenting its case.

17. The Respondent has also repeatedly mis-stated my address in correspondence. This shows poor procedural compliance, and a failure to comply with obligations of fairness and sensitivity under the PSM Act. I have no idea if the Respondent has been sending correspondence to that address.

C. Blocked grievance process

18. The Respondent’s failure to allow me access to the grievance process breaches s 29 of the PSM Act.

19. Although I was informed about the grievance procedure, in practice it was blocked by the relevant staff member, contrary to my express requests for escalation.

20. This failure deprived me of procedural rights and constitutes an industrial matter under the IR Act.

3. Timeliness

21. The transfer decision was signed on 2 May 2025. I was notified that day. The internal grievance process continued until at least 6 May 2025. My application was lodged on 10 June 2025.

22. I submit that:

(a) because the decision-making and grievance process continued until at least 6 May 2025, my application is within the 28-day limit; or

(b) if the decision is taken as final on 2 May 2025, the delay is only 11 days.

23. Section 29(3) of the IR Act allows the Commission to accept a late referral where it would be unfair not to. Relevant factors might be:

•            the short length of the delay;

•            my confusion and good faith attempts to resolve the matter internally;

•            the fact that I acted promptly once it was clear the grievance process had been blocked;

•            absence of prejudice to the Respondent beyond defending the matter; and

•            the seriousness and arguable merit of my claim.

24. In any event, the Respondent has conceded it will not oppose an extension. There is therefore no prejudice to them, while refusal would cause me serious injustice.

8         On 28 August 2025, the respondent filed written submissions in reply, stating:

(a)               Ms Mellor’s submissions confirm the issue she takes with the identified decisions is one of disagreement as to how the provisions have been applied, rather than an alleged error in construction.

(b)               Ms Mellor does not identify what the respondent’s alleged construction of any provision was, and why that construction was incorrect.

(c)               Ms Mellor argues there was a ‘misinterpretation and misapplication’ of the law with respect to the transfer decision but does not identify the alleged misinterpretation or misconstruction. Ms Mellor says the word ‘suitability’ was misconstrued ‘because [her] qualifications and experience were not considered’, however, the word ‘suitability’ or ‘suitable’ does not appear in s 65 of the PSM Act. Furthermore, a failure to consider a matter does not in and of itself amount to a misconstruction. Ms Mellor’s submissions [13], [15], [17] (at [7] above) confirm the issue that she seeks to raise is one of how the provisions of the PSM Act were applied, and not an alleged misconstruction.

(d)               Ms Mellor argues the LWOP decision was made without a merits‑based assessment contrary to s 8 of the PSM Act, however, s 8(a) is directed to ‘selection processes’ which a LWOP decision is not. Furthermore, Ms Mellor’s grievance is not that the respondent misunderstood the PSM Act, it is that she disagrees with the way the PSM Act applied to her circumstances (if the PSM Act applied at all, given the decision complained of was made under the Award).

(e)               In relation to the ‘blocked grievance process’, Ms Mellor’s submissions confirm that there is no alleged misconstruction but an alleged failure to comply with the PSM Act, and the latter does not establish the former.

Consideration

9         Ms Mellor bears the onus of establishing jurisdiction: Springdale Comfort Pty Ltd v Building Trades Association of Unions of Western Australia (Association of Workers) (1986) 67 WAIG 466.

10      As outlined at [7] above, Ms Mellor describes the three challenged decisions as:

(a) The transfer decision;

(b) The LWOP decision; and

(c) The blocked grievance process.

11      As outlined at [1] and [5(b) and (d)(i)] above, Ms Mellor’s Form 5 was filed on 10 June 2025, in relation to the transfer decision made on 2 May 2025, and the LWOP decision made on 21 May 2025. Ms Mellor attached to her affidavit, as Annexure D, the emails described as ‘Grievance email regarding LWOP and procedure (dated 28 May 2025)’. Given the purported dates the decisions at [10] above were made (2 May 2025, 21 May 2025 and 28 May 2025), the relevant version of the IR Act is the version current 31 January 2025–‍30 June 2025 [PCO 16‑I0‑00], and the relevant version of the PSM Act is the version current 31 January 2025–‍30 June 2025 [PCO 12‑p0‑00].

12      Ms Mellor contends that each of the respondent’s decisions involves the incorrect interpretation and application of conditions of service provisions under the PSM Act, specifically ss 8(1)(c) and (e), 9(b)–(c), 29(1)(l) and 65(1)(a) of the PSM Act:

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 –

 …

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

…

(e)       employees are to be provided with safe and healthy working conditions in accordance with the Work Health and Safety Act 2020.

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 –

…

(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.

29. Functions of CEOs and chief employees

(1) Subject to this Act and to any other written law relating to his or her department or organisation, the functions of a chief executive officer or chief employee are to manage that department or organisation, and in particular –

…

(l) subject to Part 7 and the [IR Act], to resolve or redress the grievances of employees in that department or organisation; and

65. Transferring officers within and between departments etc.

(1) If an employing authority considers it to be in the interests of its department or organisation to do so, that employing authority may transfer at the same level of classification a public service officer other than an executive officer from one office, post or position in that department or organisation to another such office, post or position –

(a) for which that public service officer possesses the requisite qualifications; and

13      Ms Mellor argues that ss 8(1)(c) and (e), 9(b)–(c), 29(1)(l) and 65(1)(a) of the PSM Act require the transfer decision to be made with regard to her ‘suitability’, and all three decisions to be made based on the principles of fair and consistent treatment, safe and healthy working conditions, consideration and sensitivity in dealings, and in resolution or redress of employee grievances.

14      The respondent submits that the Commission lacks jurisdiction under s 36AA(2)(b) of the IR Act, as the challenged decisions do not relate to the interpretation of a conditions of service provision within the meaning of the PSM Act or its subsidiary legislation. A ‘conditions of service provision’ is defined narrowly in s 36AA(1), and the decision needs to ‘relate to’ the interpretation of such a provision for the Commission to have jurisdiction.

Section 36AA of the IR Act

15      Sections 36AA of the IR Act states:

36AA. Industrial matters relating to public sector employment

(1) In this section –

 conditions of service provision means a provision of the [PSM Act] relating to the conditions of service of public service officers, other than the salaries and allowances of public service officers.

(2) The industrial matters the Commission has jurisdiction to enquire into and deal with under section 23 include the following –

(a) an industrial matter relating to a government officer, a group of government officers or government officers generally;

(b) a decision of an employing authority of a public service officer relating to the interpretation of a conditions of service provision;

(c) a decision or finding that is an industrial matter under the [PSM Act] section 78 or the Health Services Act 2016 section 171.

(3) Without limiting subsection (2)(a), the industrial matters relating to government officers mentioned in that subsection include –

(a) a claim relating to the reclassification of an office held by a government officer; and

(b) a claim relating to a decision of an employer to downgrade an office usually held by a government officer that is vacant.

16      The section heading and the chapeau to s 36AA(2) state that the provision concerns the ‘industrial matters relating to public sector employment’ that the Commission has jurisdiction to hear and determine under s 23 of the IR Act. Specifically, the industrial matters relating to the employment of a:

(a) Government officer – defined by s 7(1) of the IR Act as having the meaning given in s 36AB of the IR Act, which includes a public service officer unless excluded by s 36AB(2); or

(b) Public service officer – defined by s 7(1) of the IR Act as having the meaning given in the PSM Act.

17      Sections 23(1)–‍(2a) of the IR Act state:

23. Jurisdiction of Commission

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

(2) Where by or under any other Act power is conferred on a person or body to appoint officers or employees for the purposes of that Act or to fix or determine the salaries, wages, or other remuneration, or other conditions of employment, of officers or employees appointed for those purposes, or to do both of those things –

(a) the jurisdiction that the Commission would have but for that other Act to hear and determine any matter or dispute relating to the salaries, wages, or other remuneration, or other conditions of employment, of those officers or employees is not affected by that power conferred by or pursuant to that other Act; and

(b) where there is any inconsistency between a decision of the Commission relating to any such matter or dispute and any decision in the exercise or purported exercise of that power conferred by or under that other Act, to the extent of the inconsistency the former prevails and the latter is of no force or effect.

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

18      It is apparent from the interaction of ss 36AA(2) and 23(1)–(2a) of the IR Act (at [15] and [17] above), that the Commission has limited jurisdiction to hear and determine matters involving public service officers.

19      The jurisdiction is further constrained by the narrow scope of s 36AA(2)(b).

20      Section 36AA(2)(b) does not allow a public service officer to challenge any decision of an employing authority in the Commission; only a decision involving a conditions of service provision, which is defined in s 36AA(1).

21      Furthermore, a public service officer cannot challenge any decision involving a conditions of service provision in the Commission; only a decision ‘relating to the interpretation of a conditions of service provision’.

22      As established in Cross [51]–‍[53], the Commission’s jurisdiction to hear and determine a matter under s 36AA(2)(b) is confined to a dispute over the interpretation of a conditions of service provision; not dissatisfaction with how a discretion under a conditions of service provision was exercised or applied.

Transfer decision

23      In her Form 5, Ms Mellor claims the transfer decision was issued via email without attaching the job description and was made while she was on extended leave and without prior consultation or procedural fairness.

24      In her affidavit, Ms Mellor says the transfer decision was made without proper consideration of her skills, qualifications and experience, and without adequate consultation or adherence to fair process. She says the respondent failed to apply merit principles and did not provide her with an opportunity to be genuinely heard, in breach of the requirements of procedural fairness. She says the respondent did not act with the sensitivity and fairness expected under the PSM Act, especially given the respondent’s knowledge of her medical history.

25      In her submissions, Ms Mellor contends the transfer decision involved a misinterpretation and misapplication of s 65 of the PSM Act, because the respondent did not consider her qualifications and experience, disregarded relevant considerations, and denied her procedural fairness as she was not consulted and reasons were not properly provided.

26      Ms Mellor contends that in making the transfer decision, the decision‑maker misunderstood and misapplied the meaning of ‘suitability’ in s 65 of the PSM Act and failed to comply with the human resources and conduct principles in ss 8 and 9 of the PSM Act.

27      Ms Mellor distinguishes her case from Cross, contending that her challenge goes to the statutory interpretation of s 65 of the PSM Act, while Mr Cross’ challenge to the decision in Cross was only about how a direction was exercised.

28      The respondent concedes that the transfer decision, made under s 65 of the PSM Act, may be a ‘conditions of service provision’ following Cross [56]–[64]. However, the respondent contends that Ms Mellor’s grievance, as evident from her Form 5 and affidavit, concerns the manner in which the respondent applied the provisions of the PSM Act in exercising the discretion to transfer Ms Mellor; not any misinterpretation or misconstruction of s 65 of the PSM Act.

29      The respondent contends in submissions in reply that Ms Mellor does not identify the alleged misinterpretation or misconstruction of s 65 of the PSM Act. The respondent notes that Ms Mellor alleges the respondent did not consider her qualifications and experience and thereby misconstrued the word ‘suitability’, however, this raises two issues. Firstly, the word ‘suitability’ or ‘suitable’ does not appear in s 65. Secondly, a failure to consider a matter does not in and of itself amount to a misconstruction.

30      I find that, while the transfer decision was made under s 65 of the PSM Act, which may be a ‘conditions of service provision’ under s 36AA(1) of the IR Act, Ms Mellor’s grievance with the transfer decision does not engage the Commission’s jurisdiction under s 36AA(2)(b) because Ms Mellor’s grievance is not one ‘relating to the interpretation of’ s 65(1)(a) of the PSM Act, for the reasons that follow.

Interpretation vs application

31      Section 36AA(2)(b)’s reference to ‘relating to the interpretation of a conditions of service provision’ is fundamental to establishing the Commission’s jurisdiction.

32      ‘Interpretation’ of a statutory provision involves ascertaining the meaning of the provision, through textual, contextual and purposive analysis: s 19 of the Interpretation Act. In contrast, ‘application’ concerns how a correctly interpreted provision is applied to the facts.

33      In s 36AA(2)(b), the phrase ‘relating to the interpretation of’ involves ascertaining the meaning of the conditions of service provision, in this case, the meaning of s 65(1)(a) of the PSM Act.

Consideration of Ms Mellor’s ‘suitability’

34      Ms Mellor argues the respondent did not consider her ‘suitability’ when making the transfer decision. As the respondent points out, s 65 does not contain the word ‘suitability’ or ‘suitable’.

35      Even applying a generous lens to Ms Mellor’s submission that the respondent misconstrued ‘suitability’ as a reference to the phrase in s 65(1)(a) ‘for which that public service officer possesses the requisite qualifications’, does not assist Ms Mellor. This is because Ms Mellor does not identify how the respondent misconstrued the meaning of the phrase ‘for which that public service officer possesses the requisite qualifications’. Ms Mellor does not articulate what erroneous meaning the respondent ascribed to those words. Absent such articulation, Ms Mellor’s complaint remains a complaint about a factual consideration, which goes to application; not statutory interpretation.

36      In relation to Ms Mellor’s complaint that the respondent made the transfer decision without proper consideration of her skills, qualifications and experience, I find the following:

(a) Section 65(1)(a) does not refer to ‘skills, qualifications and experience’, but refers to ‘requisite qualifications’.

(b) Ms Mellor provided no evidence in support of her complaint that the respondent made the transfer decision without proper consideration of her qualifications.

(c) Ms Mellor does not contend that she does not have the requisite qualifications for the Senior Investigator role.

(d) In any event, as outlined at [30] above, to engage the Commission’s jurisdiction, Ms Mellor needs to identify a misconstruction of s 65(1)(a).

(e) I accept the respondent’s submission that, even if there was a failure by the respondent to consider a matter (in this case, Ms Mellor’s qualifications), this does not, in and of itself, amount to a misconstruction.

37      For the reasons outlined at [36] above, I find that Ms Mellor’s complaint that the respondent made the transfer decision without proper consideration of her qualifications reinforces the conclusion that Ms Mellor’s grievance relates to the application of s 65(1)(a) and not the interpretation of s 65(1)(a).

Procedural fairness

38      Ms Mellor complains the transfer decision was issued via email without attaching the job description. However, this complaint is unfounded, given the transfer letter dated 2 May 2025 states, ‘You have previously received a copy of the Job Description Form’, and the Form 4 states: (emphasis added)

By letter dated 16 April 2025 the respondent wrote to the applicant informing her of the outcome of an independent medical examination (IME) and proposing to transfer her to another position under s 65 of the PSM Act so as to limit interactions the applicant would have with two other employees consistent with the recommendation in the IME. The letter attached the job description form for the proposed position and the applicant was provided with an opportunity to respond to the proposal by 28 April 2025.

39      Ms Mellor complains the transfer decision was made while she was on extended leave and without adequate consultation or procedural fairness. She says the respondent failed to apply merit principles and did not provide her with an opportunity to be genuinely heard. Ms Mellor says the reasons for the transfer decision were not properly provided to her.

40      Unlike the LWOP decision (which is discussed further below), Ms Mellor does not articulate what specific PSM Act provision the respondent failed to apply when she says the respondent failed to apply merit principles in making the transfer decision.

41      In any event, as outlined at [30] above, to engage the Commission’s jurisdiction, Ms Mellor needs to identify a misconstruction of s 65(1)(a) of the PSM Act, and relevantly, s 65(1)(a) makes no reference to ‘merit’.

42      Ms Mellor complains that in making the transfer decision, ‘relevant considerations were disregarded’. If by ‘relevant considerations’ Ms Mellor is referring to her medical history, including that the transfer decision was made while she was on extended leave, I find that this is a challenge to the application of s 65(1)(a), and not a challenge to s 65(1)(a)’s interpretation.

43      Furthermore, and while Ms Mellor needs to identify a misconstruction of s 65(1)(a) to bring the matter within the Commission’s jurisdiction, given the chapeau to s 65(1) of the PSM Act, which grants an employing authority with broad discretion to transfer a public service officer when considered by them to be in the interests of its department or organisation to do so, I am not persuaded that Ms Mellor’s complaints would substantiate non‑compliance with the requirements of s 65(1)(a) in any event.

44      This is because, unlike the chapeau to s 65(2), which contains the words ‘with the approval of the employing authority of another department or organisation and after consulting the public service officer concerned’, s 65(1) does not contain any such words to limit the employing authority’s discretion to transfer a public service officer. Unlike s 65(2), s 65(1) does not refer to the employing authority consulting with the public service officer concerned.

45      I find that the broad discretionary language in s 65(1) underscores that Ms Mellor’s challenges are to the manner in which the discretion in s 65(1) was exercised, such as alleged failures in merit assessment or consultation. They are challenges to the application of the discretion, and not to s 65(1)(a)’s interpretation.

Sections 8 and 9 of the PSM Act

46      Ms Mellor contends that by failing to provide her with procedural fairness in the making of the transfer decision, the respondent failed to comply with the human resources and conduct principles in ss 8 and 9 of the PSM Act.

47      Whether the principles in ss 8 and 9 of the PSM Act are mandatory in nature arose in the Industrial Appeal Court decision of Director General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244 (Director General), involving the appeal of a Full Bench decision, in which the Full Bench declared the Director General’s abolition of a particular level 7 position void, and ordered that the candidate who had been selected for the position (Mr Jones), be appointed immediately either to the position or to another commensurate level 7 position.

48      Hasluck J summarised appeal grounds 3 and 4 in Director General [136]–‍[138]:

136 This brings me to grounds 3 and 4 of the appeal and the question of whether the principles of administration referred to in ss 7, 8 and 9 of the [PSM Act] are to be characterised as being mandatory in nature.

137 The appellant contended in ground 3 of the appeal that the Full Bench erred in law in finding that the actions of the appellant in not ensuring that Mr Jones was accorded procedural fairness and the actions of his delegate Mr Harvey in not providing this in connection with the appellant’s views of Mr Jones and the reference materials obtained in connection with his suitability for appointment were unlawful.

138 Ground 4 contained an assertion that the Full Bench erred in law in finding that s 8 and s 9 of the [PSM Act] and the Public Sector Code of Ethics were mandatory in nature. It was said that the provisions in question were merely directory, being guides as to the standard of conduct desired of public sector bodies and employees. Breaches do not give rise to void or voidable acts or decisions and are not then unlawful in nature.

49      In relation to appeal grounds 3 and 4, Hasluck J concluded in Director General [145] that the principles in ss 8 and 9 of the PSM Act are in the nature of guidelines:

145 It follows that, in my view, even if it be assumed that the Arbitrator, and thus the Full Bench, had jurisdiction to deal with the dispute as an industrial matter, the Full Bench erred in law in finding that s 8 and s 9 of the [PSM Act] and related requirements were mandatory in nature and that the conduct attributed to the appellant in grounds 3 and 4 was unlawful. The context and the language of the provisions suggests that the principles being referred to are in the nature of guidelines.

50      Director General was cited in the Court of Appeal decision of Patole v Child & Adolescent Health Service [2024] WASCA 126 (Patole).

51      Mr Patole argued that the Child & Adolescent Health Service (CAHS) was required to comply with the PSM Act (in particular ss 8(1)(a), (c) and 9(a)), the Public Sector Commission’s Commissioner’s Instruction – Employment Standard (Employment Standard), and the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA) (Regulations), in making its decision to appoint the second respondent to the position of medical co‑director of CAHS’ neonatology department. Mr Patole argued that the decision was only authorised after compliance with ss 8 and 9 of the PSM Act, the Employment Standard and Regulations, specifically compliance with the procedural fairness provisions, including the bias rule: Patole [108].

52      Quinlan CJ and Mitchell JA considered ss 7–9 of the PSM Act, the Employment Standard and the Regulations and concluded that on the proper construction of the PSM Act and the Health Services Act 2016 (WA), the existence of the power to appoint the second respondent as an employee was not conditioned by the rules of procedural fairness, including the bias rule: Patole [31]–‍[41].

53      In relation to ss 7–9 of the PSM Act, Quinlan CJ and Mitchell JA said in Patole [32]–‍‍[33]:

32 In [Director General [39]], Wheeler and Le Miere JJ, sitting in the Industrial Appeal Court, thought that s 7 - s 9 of the PSM Act appeared to display confusion concerning the function of legislation. Their Honours thought it surprising that s 9 would commence with the principle that employees were to comply with the provisions of legislation.

33 However, in our view that apparent confusion is to be resolved by appreciating that s 7 - s 9 of the PSM Act do not establish independent obligations and duties but rather identify principles by which other provisions of the PSM Act operate. So, s 21(1) and s 22A(2) of the PSM Act require the Commissioner to have regard to the principles set out in s 7 - s 9 of the PSM Act in issuing instructions establishing public sector standards. Section 30(c) of the PSM Act provides for chief executive officers and chief employees to comply with the principles set out in s 7 - s 9 in performing their functions. The principles in s 7 - s 9 of the PSM Act are not independent statutory rules establishing duties and obligations but are principles to which the Commissioner must have regard in issuing instructions establishing public sector standards and which regulate the exercise of the functions of chief executive officers and chief employees.

54      Pursuant to Director General and Patole, the principles in ss 7–‍9 of the PSM Act are not mandatory in nature and do not establish independent obligations and duties; rather, they are principles which the Public Sector Commissioner (PSC) and a chief executive officer or chief employee must have regard to in the performance of their functions under the PSM Act.

55      Sections 21A(a), 21(1), 22A(2) and 22C(a) of the PSM Act outline the occasions when the PSC must have regard to the principles in ss 7, 8 and/or ‍9 of the PSM Act.

56      Section 30(c) of the PSM Act outlines the occasions when a chief executive officer or chief employee must have regard to the principles in ss 7–‍9 of the PSM Act: (emphasis added)

30. Duties of CEOs and chief employees when performing functions

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 [IR Act] or employer‑employee agreement under Part VID of the [IR Act].

57      As outlined at [56] above, s 30(c) of the PSM Act provides that a chief executive officer or chief employee shall comply with the principles set out in ss 7–‍9 of the PSM Act in performing the functions of a chief executive officer or chief employee. This would include the performance of their functions under a conditions of service provision, such as under s 65 of the PSM Act.

58      However, Ms Mellor’s grievance with the transfer decision (and indeed with all three decisions, including the LWOP decision and the blocked grievance process, which are discussed below), is that the decision was made in non‑compliance with ss 8 and 9 of the PSM Act.

59      Ms Mellor’s contention of non‑compliance with ss 8 and 9 of the PSM Act reinforces that her complaint regarding each decision relates to the manner in which the provisions of the PSM Act were applied, or not applied, in her case. Like Cross [53], her grievance ‘is with the way a statutory power was exercised, not with the [respondent’s] understanding of the nature, limits or requirements for exercise of the power.’

60      In relation to the transfer decision, Ms Mellor’s complaint relates to the respondent’s application of the discretion under s 65(1) of the PSM Act. As Ms Mellor’s complaint relates to how the respondent’s discretion in s 65(1) of the PSM Act was exercised, not what s 65(1)(a) of the PSM Act means; her complaint does not engage the Commission’s jurisdiction: Cross [52]–[53].

LWOP decision

61      In her Form 5, Ms Mellor claims the LWOP decision was made without the decision‑maker seeking information from her to enable an assessment of her request ‘on the merits’ as required by cl 29 of the Award. She says the respondent’s refusal of her request relied on ‘impact on the team’ without identifying how this satisfied the ‘inconvenience’ threshold in cl 29(2)(a) of the Award.

62      In her submissions, Ms Mellor contends the LWOP decision was made without a merits‑based assessment, contrary to s 8 of the PSM Act. She says reasons given for the refusal of her request were operational (‘impact on the team’) and failed to apply the statutory requirements of fairness and procedural fairness.

63      The respondent contends that the LWOP decision was made under cl 29 of the Award, which is not a provision of the PSM Act, nor a provision of the PSM Act’s subsidiary legislation. The respondent says, it therefore follows that a decision made under the Award does not ‘relate to’ the interpretation of a provision of the PSM Act relating to the conditions of service of public service officers.

64      The respondent notes in submissions in reply, that Ms Mellor alleges the LWOP decision was made without a merits‑based assessment contrary to s 8 of the PSM Act, however, this raises two issues. Firstly, s 8(1)(a) of the PSM Act is directed to ‘selection processes’, which a LWOP decision is not. Secondly, Ms Mellor’s grievance is not that the respondent misunderstood the PSM Act, it is that she disagrees with the way the PSM Act was applied to her circumstances (if it applied at all, given the LWOP decision was made under the Award).

65      I find the LWOP decision, made under the Award, does not engage the Commission’s jurisdiction under s 36AA(2)(b) of the IR Act, for the following reasons.

66      The Award is an industrial instrument, separate from the PSM Act.

67      A decision made under the Award does not engage the Commission’s jurisdiction under s 36AA(2)(b) unless the decision directly involves construing a PSM Act conditions of service provision.

68      Ms Mellor’s attempt to overlay the principles under ss 8 and 9 of the PSM Act onto an Award decision, would not alter this; the core decision remains one made under the Award.

69      Ms Mellor submits (Submissions [10] at [7] above), that ‘[d]ecisions under the Award must still comply with the conduct and HR principles in the PSM Act’, and that in making the LWOP decision, the respondent failed to comply with its statutory obligations under the PSM Act.

70      However, and as outlined at [53]–‍[54] above, ss 8–9 of the PSM Act are not independent statutory obligations, but are principles which the PSC and a chief executive officer or chief employee must have regard when performing their functions under the PSM Act: Patole [33].

71      As outlined at [65]–‍[68] above, the Award and the PSM Act are separate instruments and the LWOP decision was made under the Award and not under the PSM Act. Accordingly, ss 8 and 9 of the PSM Act would not apply to the LWOP decision: Patole [33].

72      Sections 8 and 9 of the PSM Act would only apply to the LWOP decision if the Award expressly incorporated ss 8 or 9 of the PSM Act, which it does not. Accordingly, it is unnecessary to engage with Ms Mellor’s arguments as to whether the LWOP decision was made in accordance with ss 8 and 9 of the PSM Act.

73      Even if ss 8 and 9 of the PSM Act were relevant, Ms Mellor’s grievance concerns the respondent’s compliance with ss 8 and 9 in making the LWOP decision, specifically, the merit‑based assessment to be observed in s 8(1)(a) of the PSM Act.

74      As the respondent points out, s 8(1)(a) applies to selection processes and not to applications for leave in any event: (emphasis added)

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

75      Even if s 8(1)(a) applies to the LWOP decision, Ms Mellor’s complaint is one of non-compliance with s 8(1)(a) in the exercise of the LWOP decision. Ms Mellor’s grievance is that operational needs were prioritised; her complaint relates to the factual weighting of ‘impact on the team’. This is a complaint regarding non‑compliance with s 8(1)(a) in the application of the LWOP decision; mirroring the issues with the transfer decision.

76      As outlined at ‍[66] above, the Award and the PSM Act are separate instruments. Accordingly, it is unnecessary to engage with Ms Mellor’s arguments that the LWOP decision was not made in accordance with cl 29 of the Award, because this does not invoke the interpretation of a PSM Act conditions of service provision.

77      As Ms Mellor’s complaint with the LWOP decision does not relate to the interpretation of a conditions of service provision under the PSM Act, the Commission’s jurisdiction under s 36AA(2)(b) is not enlivened.

The blocked grievance process

78      In her Form 5, Ms Mellor contends that she requested the LWOP decision be referred back to the decision‑maker, but Ms Donaldson refused, which cut off her ability to raise a formal grievance, frustrating the operation of cl 65 of the Award and s 29(1)(l) of the PSM Act.

79      In her submissions, Ms Mellor contends that the respondent’s failure to allow her access to the grievance process breaches s 29 of the PSM Act. She says that although she was informed about the grievance procedure, in practice, it was blocked by Ms Donaldson, contrary to her express requests for escalation. Ms Mellor contends that this failure deprived her of procedural rights and constitutes an industrial matter under the IR Act.

80      The respondent contends in submissions in reply, that Ms Mellor’s submissions confirm there is no alleged misconstruction but an alleged failure to comply with s 29 of the PSM Act; and the latter does not establish the former.

81      To the extent that the blocked grievance process arises under the Award, I find that it is a decision made under the Award and, like the LWOP decision, does not engage the Commission’s jurisdiction under s 36AA(2)(b) of the IR Act.

82      Furthermore, I find that Ms Mellor’s complaint regarding the blocked grievance process involves alleged non‑compliance with s 29(1)(l) of the PSM Act, not misinterpretation of a PSM Act conditions of service provision, such as to invoke the Commission’s jurisdiction under s 36AA(2)(b).

83      Ms Mellor does not identify any disputed meaning of a PSM Act conditions of service provision but complains of a failure to escalate her grievance. This is an application issue, not an interpretation issue, and does not meet the jurisdictional threshold in s 36AA(2)(b).

84      Mirroring the issues with the transfer decision and the LWOP decision, a complaint of mere non‑compliance with s 29(1)(l) does not invoke the jurisdiction of s 36AA(2)(b); as the complaint does not ‘relate to’ the interpretation of a PSM Act conditions of service provision.

Summary

85      Having considered the parties’ arguments, I am not persuaded that the Commission has jurisdiction to hear and determine Ms Mellor’s Form 5 for the following reasons.

86      For the matters in Ms Mellor’s Form 5 to come within the Commission’s jurisdiction, s 36AA(2)(b) of the IR Act requires the referred decisions to relate to the interpretation of a PSM Act conditions of service provision. As outlined at [15]–‍[21] above, s 36AA(2)(b) is narrowly drafted to confine referrable decisions to ones involving the statutory meaning of a conditions of service provision.

87      Ms Mellor’s challenges, while framed as involving interpretation, fundamentally concern the application of statutory principles to her specific circumstances, such as whether fairness was afforded or merit considered. This is akin to the circumstances in Cross, where jurisdiction was not established because Mr Cross’ grievances went to the exercise of discretion rather than the interpretation of a conditions of service provision.

88      The absence of an articulated challenge to the interpretation of a conditions of service provision, beyond Ms Mellor’s dissatisfaction with the outcomes, fails to meet the requirements in s 36AA(2)(b) of the IR Act.

89      Ms Mellor’s attempts to distinguish Cross are unpersuasive, as her case parallels the rejected arguments in Cross. Like Cross, her complaints involve dissatisfaction with the application of the PSM Act (and in the case of the LWOP decision if not also the blocked grievance process, the application of the Award), and not the interpretation of a conditions of service provision.

Conclusion

90      As outlined at [9] above, Ms Mellor bears the onus of establishing jurisdiction.

91      For the preceding reasons, Ms Mellor has not discharged the onus of establishing jurisdiction.

92      Therefore, the respondent’s jurisdictional objection will be upheld and Ms Mellor’s application will be dismissed for want of jurisdiction.

93      Given the absence of jurisdiction, it is unnecessary to determine whether Ms Mellor should be granted an extension of time in which to file her application under s 29(3) of the IR Act.