WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES COMMISSIONER OF POLICE

APPELLANT

 -v-

 CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

RESPONDENT

CORAM FULL BENCH

  HIS HONOUR THE PRESIDENT P J SHARKEY

  CHIEF COMMISSIONER W S COLEMAN

  COMMISSIONER J F GREGOR

DELIVERED FRIDAY, 9 NOVEMBER 2001

FILE NO/S FBA 51 OF 2001

CITATION NO. 2001 WAIRC 04107

_______________________________________________________________________________

Decision  Appeal dismissed.

Appearances

Appellant   Mr R Bathurst (of Counsel), by leave

Respondent   Ms M M In de Braekt, and with her Mr M Amati

_______________________________________________________________________________

Reasons for Decision

THE PRESIDENT AND CHIEF COMMISSIONER W S COLEMAN:

1                 These are the joint reasons for decision of the President and Chief Commissioner Coleman.

2                 This is an appeal brought by the abovenamed appellant employer, the Commissioner of Police, against part of the decision of the Public Service Arbitrator (hereinafter referred to as “the Arbitrator”) made pursuant to s.80E of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”) on 14 August 2001 in matter No P6 of 2001.

3                 The decision appealed against consisted of a declaration that the Arbitrator had jurisdiction to deal with the application and also that an application for interim orders be dismissed (see page 9 of the appeal book (hereinafter referred to as “AB”)).  The appeal was made only against the declaration that the Arbitrator had jurisdiction to hear and determine the matter, the subject of the application.

GROUNDS OF APPEAL

4                 The appeal is made on the following grounds:-

  “1. The Commissioner erred in law in finding that the Commission had jurisdiction to inquire into and deal with this matter, the matter being one of temporary deployment (acting), which was subject to the Public Sector Standard on temporary deployment (acting).

      PARTICULARS

   1.1 Temporary deployment (acting) is a matter dealt with by a Public Sector Standard.  Procedures for the breach of the Public Sector Standard relating to temporary deployment (acting) have been prescribed in accordance with section 97(1)(a) of the Public Sector Management Act 1994.  Section 80E(7) of the Industrial Relations Act 1979 provides that the Public Service Arbitrator does not have jurisdiction to inquire into and deal with any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under the Public Sector Management Act.

   1.2 The effect of section 80E(7) of the Industrial Relations Act 1979 and section 97(1)(a) of the Public Sector Management Act 1994 is that the Commission has no jurisdiction to deal with matters which are subject to the Public Sector Standard on temporary deployment (acting).”

“FINDING” AND S.49(2a) OF THE ACT

5                 The decision in the matter which was appealed against was a “finding”, as that is defined in s.7 of the Act, in that it did not finally dispose of the matter before the Commission.  The appeal, therefore, by operation of s.49(2a) of the Act, cannot lie unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.

BACKGROUND

6                 The respondent organisation of employees, The Civil Service Association of Western Australia Incorporated (hereinafter referred to as “the CSA”), applied to the Arbitrator, naming the abovenamed appellant employer as respondent, by an application dated 11 April 2001.  At all material times, the appellant was the employer of one Mr Steven Brown, a member of the CSA.

7                 There was no real dispute as to the facts in this matter before the Commission at first instance.

8                 Mr Brown’s substantive position was classified at Level 1, but he had acted since 1997 in a higher position almost continuously. For the three years from 23 March 1998 to 30 March 2001, he did act continuously in the position of “Bike Education Area Manager” (“BEAM”), a position classified at Level 3, during the incumbent’s secondment to another position.  At regular intervals of two to three months, he completed applications for higher duties allowance and received that allowance.

9                 It was not in dispute and it would appear that, in February 2001, the appellant advised Mr Brown that there was to be a reorganisation of the arrangements in the section involving bicycle education.  This restructure included the position in which Mr Brown was acting being abolished and new position for a “sworn” officer being established.  The item allocated to the BEAM position was then transferred to another area, where the appellant was also the employer, to be filled by a person in that area.  That meant that Mr Brown could no longer act in the higher position, the Level 3 position, and his own substantive position, in any event, had previously been abolished.  Therefore, he was said to be “surplus to requirements” and substantively at Level 1.

10              The CSA’s complaint to the Commission at first instance was that Mr Brown had been unfairly and inequitably treated by the appellant and that, given the circumstances which applied for a number of years and that it was known by the appellant that the acting arrangement would continue for some time, Mr Brown ought to have been given the opportunity to have been placed in the BEAM Level 3 position.  The CSA alleged that the position ought to have been declared vacant and Mr Brown ought to have been allowed to apply for the position.

11              The consequences of the appellant’s action were that Mr Brown had to revert to substantive Level 1 for all purposes, resulting in a substantial reduction in his income, and that he was now surplus to requirements and had no position.  This occurred after a period of about five years.

Orders Sought and Findings

12              The CSA at first instance sought the following orders:-

(a) An interim order pursuant to s.32 of the Act that, until the matter was finally resolved, Mr Brown continue to be paid at Level 3.

(b) A finding that the appellant had treated Mr Brown unfairly and inequitably.

(c) That Mr Brown’s standing in the position at Level 3 be “formalised”. 

13              The application was opposed by the appellant, the respondent at first instance.  It was submitted at first instance on behalf of the appellant that this matter fundamentally related to Mr Brown no longer having the opportunity to act in a position which was classified substantially higher than his own substantive position.

14              It was also submitted the Arbitrator had no jurisdiction to deal with this matter because “temporary deployment”, i.e. acting, is a “human resource activity” (sic) which is covered by Public Sector Standards in Human Resource Management.  This, it was submitted, was the province of the Public Sector Standards Commissioner and the area dealing with Public Sector Standards.

15              It was submitted that s.80E(7) of the Act rendered the matter outside the jurisdiction of the Commission because any matter in respect of which a procedure referred to in s.97(1)(a) of the Public Sector Management Act 1994 (hereinafter referred to as “the PSM Act”), and which is or may be prescribed under that Act, is excluded from the jurisdiction of the Arbitrator.

16              It is convenient to reproduce the text of s.80E(7) of the Act and s.97(1)(a) of the PSM Act hereunder.  S.80E(7) of the Act reads as follows:-

  “(7) Notwithstanding subsections (1) and (6), an Arbitrator does not have jurisdiction to enquire into or deal with, or refer to the Commission in Court Session or the Full Bench, any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.”

17              S.97(1)(a) of the PSM Act provides as follows:-

  “97. Functions of Commissioner concerning relief in respect of breach of public sector standards

  (1) The functions of the Commissioner under this Part are — 

   (a) to make recommendations to the Minister on the making, amendment or repeal of regulations prescribing procedures, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of public sector standards;”

18              The Arbitrator went on to find that the matter, the subject of the claim which the CSA sought that she inquire into and deal with, was a matter relating to the fairness and equity of the appellant’s treatment of Mr Brown and did not require the Commission to deal with the matter, the subject of a procedure referred to in s.97(1)(a) of the PSM Act, and made declarations and orders accordingly.

19              The Arbitrator then found that there was no jurisdictional impediment to the Arbitrator dealing with “this substantive matter”.

20              Further, the Arbitrator held, in relation to the interim orders sought by the CSA, that Mr Brown continue to be paid at a Level 3 until the final hearing and determination of the matter.  It is not necessary to consider that matter further because it is not the subject of the appeal.

21              The Arbitrator found that the substantive question was within jurisdiction and could be listed for hearing.

BIAS

22              There was one preliminary matter which the Full Bench was required to deal with upon this appeal.

23              The advocate for the CSA, Ms In de Braekt, submitted that there was ostensible bias in the President because of dicta of the President in an application for stay heard by the Commission, constituted by the President, under and in accordance with s.49(11) of the Act (see Commissioner of Police v CSA 81 WAIG 2553).

24              Whether the President should disqualify himself for ostensible bias was a matter for the President to decide as an individual member of the Full Bench (see Kartinyeri and Another v The Commonwealth (1998) 156 ALR 300), where a similar question involving Callinan J, as a member of the Full Court of the High Court, was decided by him alone.

25              The President is, as defined, the President of the Commission (see s.7 of the Act).  Pursuant to s.49(11) of the Act, the Commission is constituted by the President and can be constituted only by the President (or an Acting President in the absence of the President) (see discussion of a similar statutory prescription in relation to s.66 of the Act in Carter v Drake and Others and Drake and Others v Carter and Others (1992) 72 WAIG 736 (hereinafter referred to as “Carter’s Case”)).  The Full Bench also cannot be constituted without the President (see s.15 of the Act).

26              It was conceded on behalf of the CSA, and correctly so, that the doctrine of necessity, again expressed in Carter’s Case (op cit) at pages 744-745 (and see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100 per Gaudron and McHugh JJ) required the President to sit as a member of the Full Bench on the hearing of this appeal and meant that no valid submission that the President disqualify himself for bias could be made.  It was correctly conceded, therefore, that there was no merit in the submission of ostensible bias, for that reason.

27              However, we wish to say something about the submission of ostensible bias, even though that submission fell away because of the concessions as to the operation of the doctrine of necessity to which we have referred.

28              The Full Bench was not taken to Carter’s Case (op cit) where the doctrine of ostensible bias is comprehensively discussed as well as the doctrine of necessity, nor to The Coal Miners’ Industrial Union of Workers of WA v Western Collieries Limited (1995) 75 WAIG 2492 at 2493-4 (FB) where the Full Bench discussed this question in detail.  In addition, the written submissions contained no reference to Laws v Australian Broadcasting Tribunal (HC)(op cit) or those cases which relate to industrial courts or tribunals, such as R v Commonwealth Conciliation and Arbitration Commission; ex parte Angliss Group [1969] 122 CLR 546 at 552-554; R v Australian Stevedoring Industry Board and Another; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] 88 CLR 100 at 116 per Dixon CJ, Williams, Webb and Fullagar JJ (see also Re Polites and Another; Ex parte The Hoyts Corporation Pty Limited and Others [1991] 173 CLR 78 and Re JRL; Ex parte CJL [1986] 161 CLR 342).

29              There are other helpful dicta in Vakauta v Kelly 167 CLR 568 at 575 per Dawson J (referred to in Carter’s Case (op cit)), where it was said:-

  “Preconceptions do not necessarily mean bias on the part of the judge who holds them.  As was said by Charles J. in Reg. v. London County Council; Ex parte Empire Theatre, “preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded”.  And in this Court in Reg. v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd., a majority was of the opinion that when bias arising from preconceptions is in question, as distinguished from bias through interest, there must be strong grounds for finding its existence.  A judge “must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons”.  In Re J.R.L.; Ex parte C.J.L., I expressed the view that suspicion of bias may well be ineradicable where the bias is thought to result from preconceptions existing independently of the case.  That is so, but it is not to say that bias is inevitably displayed merely because a judge holds preconceptions or reveals that he does.”

30              We also cite what was said in Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd and Another 66 ALJR 583 at 584 per Deane, Toohey and Gaudron JJ, where Their Honours said:-

  “In these circumstances, the need for caution which this Court has consistently identified (see, eg, Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352; Re Polites (1991) 173 CLR, at 86-87; R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 116) in relation to applications for an order preventing a member of a statutory tribunal from participating in the discharge of the functions of that tribunal by reasons of apprehended bias is particular apposite when such an application is directed against a member of the Commission.  It is that care must be taken to bear in mind that the basis for disqualification by reason of apprehended bias is that there are grounds upon which a party or the public might entertain a reasonable apprehension that the particular member of the Commission will not decide the case impartially or without prejudice.  The basis for disqualification is not merely that the member’s past decisions, on questions of fact or law, might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties.  Nor is it that she or he has had previous contact or experience, as a member of the Commission, with the facts involved in the particular matter, with the context in which the particular matter arises, or with one or more of the parties involved in the particular matter.”

31              The President, as part of the exercise of his jurisdiction in an application for an order staying the operation of the order, the subject of this appeal, is and was required to decide whether there was a serious issue to be tried on appeal.  The Commission, in relation to applications to stay the operation of orders and other proceedings, is entrusted with functions which necessitate a continuing role of adjudication involving sometimes the same persons of the kind referred to above.

32              The President, if we might say so and it was properly conceded, carried out his duty by deciding, inter alia, whether there was a serious issue to be tried by observing that “there was a very strong argument” available to the applicant in those proceedings and the appellant in this appeal.  Interestingly, Anderson J in Re Sharkey and Others; Ex parte the FPU 81 WAIG 2699 pointed to “a strong case on appeal” as a requirement for the granting of an order for a stay.  It seems to us that a very strong argument is a readily describable hallmark of a strong case, within the meaning of that term, as expressed by Anderson J.

33              There was no finding and there was required to be no finding as to whether the argument was successful.  That is a matter for appeal.

34              There was therefore no predetermination by the President of any issue before the Full Bench, even if that were the test of ostensible bias which, on the authorities above (see, for instance, Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd and Another (HC)(op cit)), it was plainly not.

35              Even if the disqualification of the President from the Full Bench might occur on the ground of ostensible bias, which it cannot because of the doctrine of necessity, there could be no ostensible bias in this case since the test is whether grounds existed upon which a party or the public might entertain a reasonable apprehension that the particular member of the Commission will not decide the case impartially or without prejudice; and there was no such reasonable apprehension open to be found.

36              In particular, the findings made could not excite any reasonable apprehension in a party or member of the public, because there was no determination of any question which might be decided upon appeal, and in addition, the determination of a matter of appeal takes place on detailed and sometimes very different arguments from those put on an application for a stay and requires different questions to be answered by the Full Bench than those which the President is required to answer on an application for a stay.

37              The basis for disqualification is not merely that the Commission member’s past decisions as to questions of fact or law might lead to a reasonable expectation that she or he will decide the case adversely to one of the parties.  That was clearly and erroneously the basis of the submission.  Its weakness is demonstrated, inter alia, by the fact that the question of law said to be before the Full Bench was not decided by the President on the application for a stay, nor was it required to be so determined.  There was no merit in the submission.

38              For those reasons, the application to the President that he disqualify himself from the hearing and determination of this appeal was dismissed as having no merit.  The President’s colleagues, insofar as it was necessary or possible for them to do so, concurred in that decision.

THE APPEAL

39              We now turn to the merits of the appeal, which is based on a short point; subject of course to the Full Bench being of opinion that, in terms of s.49(2a) of the Act, the appeal was of such importance that, in the public interest, the appeal should lie.

40              S.80E(1) of the Act confers and conferred jurisdiction on the Arbitrator in this case.  S.80E(7) of the Act is a section which deprives the Arbitrator of jurisdiction in certain matters.

41              S.80E(7) of the Act expressly prescribes that an Arbitrator does not have jurisdiction to enquire into or deal with or refer to the Commission or the Full Bench any matter in respect of which a procedure referred to in s.97(1)(a) of the PSM Act is or may be prescribed under the Act.

42              S.97(1)(a) of the PSM Act empowers the Commissioner for Public Sector Standards to make recommendation to the Minister to make, amend or repeal regulations which, broadly expressed, prescribe remedies described therein or modes of appeal for persons seeking relief for a breach of Public Sector Standards.

43              In s.3 of the PSM Act, a Public Sector Standard is defined as “a public sector standard established under s.21(1)”.

44              The application at first instance related to a dispute about whether Mr Brown had been treated by the appellant with fairness and equity, because it was alleged that Mr Brown had been “removed” from a position in which he had acted for some time.

45              At the time when the application at first instance was filed, namely 11 April 2001, a Public Sector Standard (as defined) relating to temporary deployment (known as “acting”) had been made under s.21(1)(a)(ii) of the PSM Act.  At the time when the application was filed, procedures for relief for the breach of the Public Sector Standard had been prescribed in accordance with s.97(1)(a) of the PSM Act, namely the Public Sector Management (Review Procedures) Regulations 1995, subsequently replaced by the Public Sector Management (Examination and Review Procedures) Regulations 2001.

46              The Standard accepted as relevant was published on 2 June 1998 in the Government Gazette.  The operative date was also expressed to be 2 June 1998.  The Standard was published as one of a number of Standards and was Standard 8 in Standards described as “Public Sector Standards in Human Resource Management”.  Standard 8 “Temporary Redeployment (Acting)” reads as follows (see Government Gazette 2 June 1998, page 3018):-

  “8. TEMPORARY DEPLOYMENT (ACTING)

  Outcome

  Temporary deployment (acting) decisions are equitable and take into account the organisation’s requirements and employee needs.

 Compliance Requirements

 8.1 Policies are documented, equitable, applied consistently and accessible to all employees in the organisation.

 8.2 Period of temporary deployment (acting) is defined.

 8.3 Decisions take into account the organisation’s requirements and employee needs.

 8.4 A temporary deployment (acting) exceeding 6 months shall be publicised as widely as appropriate, take into account the organisation’s needs and include an assessment of merit.

 8.5 Decisions and processes embody the principles of natural justice.

 8.6 Decisions are capable of review.

 8.7 Appropriate confidentiality is observed.”

47              Those Standards contain no definition of “temporary redeployment”.

48              The crux of the appellant’s case was that the Arbitrator had no jurisdiction, because of the provisions of s.80E(7) of the Act.  By s.80E(7), an Arbitrator has no jurisdiction to deal with any matter in respect of which a procedure referred to in s.97(1)(a) of the PSM Act has or might be prescribed.   There is no doubt that a procedure had been prescribed in relation to what is broadly termed “acting”.

49              The matter, the subject of the claim, was held by the Arbitrator to be one whereby the CSA sought that the Arbitrator enquire into and deal with a matter relating to the fairness and equity of the respondent’s treatment of Mr Brown.  Further, the CSA, the Commissioner held, did not seek that the Commission deal with a matter the subject of a procedure referred to in s.97(1)(a) of the PSM Act.

50              The question of jurisdiction turns on whether this was a matter which was within the category of matter referred to in s.97(1)(a) of the PSM  Act.  That is, was it a matter in relation to which the Public Sector Standards Commissioner might make or has made recommendations?  In part, that question is answered by saying that there was a Public Sector Standard prescribed and that, not only was a recommendation made, one infers, but that regulations were made to enable persons to obtain relief for breach of that Standard and other Standards.

51              The fundamental question was whether there had been a breach of Public Sector Standard 8, the agreed relevant Standard.  There was no doubt and, indeed, it was accepted, that Mr Brown had acted in the Level 3 position as “BEAM”, and also that he had been temporarily deployed in that position, that, in the meaning of the Standard, for a period of about five years.

52              The temporary deployment ended because the substantive position was abolished and a new position created, or alternatively, it was transferred to another area where Mr Brown was not to be or could not be employed.

53              The complaint was not really that the Standard was breached.  The CSA’s application made no complaint that Mr Brown was treated unfairly in relation to his temporary deployment and the period of it.  That was the case, as the application revealed.  Clause 5 of Schedule A to the application at first instance and the relief sought  bear that out.

54              Clause 5 of Schedule A, to expressly demonstrate what we are saying, reads as follows:-

  “On the basis of fairness and equity Mr Brown should be retained in the position so to be entitled to the same salary.  This should be done so as to prevent Mr Brown to undergo a pay cut that would provide him with considerable financial hardship by having considerable detrimental effect upon his existing long-standing financial arrangements.”

 (See page 5(AB).)

55              The complaint related to the unfairness caused by the abolition or transfer or removal of the position, temporarily occupied by Mr Brown in the absence of the incumbent, and of Mr Brown being forced to revert to Level 1 salary after five and a half years of receiving a Level 2 and then a Level 3 salary.  The cause of that reversion had no relation to his temporary deployment, but was caused by the abolition or removal or transfer of the Level 3 position in which he was acting and, less directly, by perhaps the creation of a new position.

56              Put simply, there was no complaint made of a breach of the Public Sector Standard or any Public Sector Standard and no review of or remedy sought in relation to any such breach.  The CSA simply complains that Mr Brown occupied the position for five years on an acting basis.  It complained that Mr Brown was paid at a Level 3 salary for that period.  The position was then abolished.  He was reverted to a Level 1 position at a lower salary after five years at a Level 3 salary, because the position was unfairly abolished.  As a result, the complaint was that there was a detrimental effect on Mr Brown in salary reduction which was unfair and inequitable.  The complaint is that the position, therefore, was unfairly abolished or removed, or implicitly, the complaint is that the appellant unfairly failed to “retain” the position for Mr Brown.

57              Thus, the allegation is that the position should have been retained and Mr Brown should have been retained in that position in order to avoid unfairness and inequity brought about by the position’s abolition.  Plainly, the complaint was not that the temporary redeployment had ended.  It had not.  What had occurred was that the position was abolished or removed, which is a different matter from ending any temporary redeployment.

58              Managing Director of the South Metropolitan College of TAFE v CSA 80 WAIG 7 (FB) is a case which is distinguishable because, in that matter, jurisdiction was clearly excluded by the terms of s.80E(7) of the Act.  This was because the matter was one relating to a breach of a Public Sector Standard and the remedies which might be or had been, clearly identified, prescribed in relation to any such breach.

59              There was no complaint, either express or implied, in the application or on the facts, of any breach of or unfairness perpetrated by the appellant in relation to any Standard from 8.1 to 8.7 inclusive.

60              That this was so was borne out, as we have observed, by paragraph 5 of Schedule A of the application and that part of the CSA’s case, which was that Mr Brown should be retained in the same position so as to maintain his entitlement to the salary payable in relation to that position.  In other words, no order was sought requiring that  his temporary redeployment continue or alleging that he had been unfairly terminated, nor could such relief be sought.

61              It follows, too, that, if there were no breach of the Standards alleged, the Grievance Procedures prescribed in Standard 9 were not invokable.  Standard 8 is one which plainly relates, on a fair reading, and is confined to temporary redeployment and not to the abolition of an existing office, its extinction or removal.  It was not submitted that any other Standard was applicable.

62              Put another way, the application was clearly based on a complaint that Mr Brown was permitted by the appellant to develop an expectation that he would continue to be paid at a higher rate than his substantive rate in his substantive position, because this state of affairs had existed and continued for five and a half years.  The complaint was that the sudden cessation of his receipt of the higher rate of pay applicable to the abolished position, brought about by the abolition of the position in which he acted as a Level 3, was unfair, inequitable and/or unreasonable and caused Mr Brown hardship.  This was not a complaint that there had been a breach of the relevant Standard relating to temporary redeployment (or acting) or to any Public Sector Standard.

63              This was not a matter within the terms of the prohibition contained in s.80E(7) of the Act.  This was a matter within the Arbitrator’s jurisdiction.  The Arbitrator was correct to so find.  The appeal is not made out.

64              This was, and it was not contended otherwise, an appeal against a finding involving a matter which was of such importance that, in the public interest, the appeal should lie.  It involved a consideration, not covered by Managing Director of the South Metropolitan College of TAFE v CSA (FB)(op cit), of the Arbitrator’s jurisdiction.

65              For those reasons, the appeal should be dismissed.  We would dismiss it.

COMMISSIONER J F GREGOR:

66              I have the benefit of reading the Decision of His Honour the President in draft, I agree with the conclusions his has reached and I add the following comments.

67              The central issue here is whether the matter which was before the Arbitrator was caught by the prohibition contained in s.80E(7) of the Act.  In Managing Director of South West Metropolitan College of TAFE –v- CSA (FB) (op cit.) I dealt with the effect of this prohibition.

68              At page 12 of the report I made the following comments:

“The Public Service Arbitrator's jurisdiction is derived from s.80E of the Industrial Relations Act, 1979 (the Act).  By s.80E(1) the Public Service Arbitrator has "exclusive jurisdiction to inquire in and deal with any industrial matter relating to a Government Officer, or group of Government Officers".  However, s.80E(7) limits jurisdiction conferred by s.80E.  Section 80E(7)) states that an Arbitrator does not have the jurisdiction to inquire into or deal with, or refer to the Commission in Court Session or Full Bench, any matter in respect of which a procedure referred to in s.97(1)(a) of the Public Sector Management Act, 1994 (PSMA) is, or may be prescribed under the Act.  Additionally 23(2)(a) of the Act, limits the jurisdiction by stating "Notwithstanding subsections (1) and (2), the Commission does not have jurisdiction to enquire into or deal with any matter in respect to which a procedure referred to in s.97(1)(a) of the Public Sector Management Act is, or may be, prescribed under that Act.

The Commission is therefore directed by the Act to section 97(1)(a) of the PSMA which vests in the Commissioner of Public Sector Standards the following functions:

"The functions of the Commissioner under this part are:

to make recommendations to the Minister on the making, amendment or repeal of regulations prescribing procedures, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees or other persons to obtain relief in respect of breaching of public sector standards"

In the second decision, the Arbitrator found that s.80E of the Act means that the Commission's jurisdiction to inquire into or deal with any breach of Public Sector Standards, in this case a transfer, is removed.  However, that does not interfere with the Commission's ability to inquire into or deal with a transfer and associated issues which do not involve a breach of the Public Sector Standard because PSMA s.97(1)(a) details procedures to obtain relief for breach of Public Sector Standards.  That is, the Commission at first instance, had jurisdiction as long as the matters did not fall within the relevant Public Sector Standard.”

69              The complaint at the centre of this case is the cessation of receipt of a higher rate of pay which had been attached to a position that had been abolished and whether the sudden abolition of that position which caused the employee involved a diminution pay was unfair, equitable and/or reasonable and caused him hardship.

70              They are not matters which fall within the issues discussed by both myself and with respect His Honour the President in Managing Director of South West Metropolitan College of TAFE –v- CSA op cit.  The matter was clearly within the Arbitrator’s jurisdiction.  She was correct to so find.

71              The Appellant in this matter raised an issue of ostensible bias because I as I understand it, His Honour the President, pointed out on a stay proceeding that for the matter to be determined there was “a very strong argument”.

72              In my opinion the application is misconceived.  His Honour merely carried out his duty in dealing with the stay order.  He made no finding as to whether on appeal the argument would be successful or not.  There is little more I need say other to than observe that if it were necessary for me as a member of this Full Bench to express an opinion about the application for disqualification, I would reject it.  I therefore concur with the decision made by His Honour the President on the day concerning the application.

73              I would dismiss the appeal.

THE PRESIDENT:

74              For those reasons, the appeal is dismissed.

Order accordingly