WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES LI LIU

APPLICANT

-v-

PUBLIC TRANSPORT AUTHORITY OF GOVERNMENT OF WESTERN AUSTRALIA

RESPONDENT

CORAM COMMISSIONER J H SMITH

DATE FRIDAY, 22 APRIL 2005

FILE NO. APPL 751 OF 2004

CITATION NO. 2005 WAIRC 01312

CatchWords Termination of employment - Harsh, oppressive and unfair dismissal - Jurisdiction of Commission to hear application under general jurisdiction when Applicant a Government officer - Jurisdiction under s 29(1)(b)(i) ousted by jurisdication of Public Service Appeal Board - Industrial Relations Act 1979 (WA) s 7, s 29(1)(b)(i), s 80C, s 80E, s 80I(1)(b) and (e), (2), s 80M; Public Sector Management Act 1994 (WA) s 78(1); Public Transport Authority Act 2003 (WA) s 6; Government Railways Act 1904 (WA) s 73(4); Salaries and Allowances Act 1975 (WA) s 6(1).

Result Application dismissed

Representation 

Applicant In person

Respondent Mr R Andretich (of counsel)

Reasons for Decision

1          Li Liu (“the Applicant”) made an application under s 29(1)(b)(i) of the Industrial Relations Act 1979 (“the Act”) claiming that she was harshly, oppressively and unfairly dismissed on 3 June 2004 by the Public Transport Authority (“the Respondent”).

2          The Respondent claims the Commission in its general jurisdiction has no power to hear and determine the application as it does not have jurisdiction to hear a claim by a “Government officer” that he or she has been unfairly dismissed.  The Respondent says that the constituent authorities established under Division 2 of Part IIA of the Act, namely the Public Service Appeal Board or the Public Service Arbitrator have exclusive jurisdiction in respect of such a matter.  The history of this matter is that the Applicant’s application was filed on the day her employment was terminated on 3 June 2004.  A conference in respect of the matter was first convened by the Commission under s 32 of the Act on 13 July 2004.  This matter was then listed for hearing on 7 October 2004.  Prior to the date set for the hearing, the Applicant requested the hearing be adjourned, which was consented to by the Respondent.  A further date for hearing was set for 9 December 2004.  That date was also vacated by consent.  The matter was then listed for hearing on 3 March 2005.  That hearing did not proceed by consent.  However, a conference under s 32 was convened by the Commission on that date and the matter was listed for hearing on 14 and 15 April 2005.  A further conference between the parties took place on 1 April 2005.  At the conference on 1 April 2005, an issue of jurisdiction was raised by the Respondent in these proceeding for the first time. 

3          The Respondent’s solicitor filed submissions in respect of jurisdiction on 8 April 2005.  Whilst the jurisdictional argument has been raised at a late stage of the proceedings, it is clear that once an issue of jurisdiction had been raised that the issue must be determined by the Commission (see SGS Australia Pty Ltd v Taylor (1993) 73 WAIG 721).  At the hearing on 14 April 2005, counsel for the Respondent addressed the submissions and after hearing from the parties, I reached the conclusion that the application before the Commission under s 29(1)(b)(i) of the Act should be dismissed.  The reasons why I reached this conclusion are as follows.

4          Pursuant to s 80I(1)(e) of the Act, the Public Service Appeal Board has jurisdiction to hear an appeal, other than an appeal under s 78(1) of the Public Sector Management Act 1994 (“the PSM Act”), by any Government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer of that Government officer that the Government officer be dismissed.

5          A “Government officer” is defined in s 80C(1)(b) and (e) of the Act to mean every other person employed on the salaried staff of a public authority except a person who is a railway officer as defined in s 80M.  In ascertaining whether the Applicant was a “Government officer” within the meaning of s 80C(1)(b), the first question to be determined is whether she was employed “of a public authority”.

6          Section 7 of the Act defines a “public authority” to include a number of specified entities and “State Government department, State trading concern, State instrumentality, State agency, or any public statutory body, corporate or unincorporate, established under a written law”.  By s 6 of the Public Transport Authority Act 2003 (“the PTA Act”) the Respondent is an agent of the State.  It is clear from s 6 and the provisions of the PTA Act as a whole that the Respondent can be characterised as a State agency and a public statutory body.  Consequently, I am satisfied the Applicant was employed “of a public authority”.

7          As to whether the Applicant can be said to have been “employed on the salaried staff” and was not a “railway officer” as defined in s 80M of the Act, the Applicant states in her application that she was employed as an accountant and was in receipt of an annual salary of $47,359 per annum.  The Respondent says that the Applicant was employed as a Level 3 Accounting Assistant and the terms and conditions of her employment were covered by the provisions of the Public Transport (Railways) Salaried Officers Award of Western Australia 2003 (“the Award”), which is an award made by the Australian Industrial Relations Commission on 24 January 2003 (Exhibit 1).  Clauses 11 and 12 of the Award provide for salaries to be paid fortnightly and rates of pay are fixed from Level 1 to Level 9.  In Schedule A of the Award, under the heading Finance Accounting and Supply Directorate, there is a classification described as an Assistant Financial Accountant under the classification of Level 3.

8          In Fisher v The Totalisator Agency Board (1997) 77 WAIG 619 at 622, the President, with whom George and Parks CC agreed, applied the meaning of the word “salary” considered by Barwick CJ in Commissioner for Government Transport v Kesby (1972) 127 CLR 374 (“Kesby”).  In Kesby the Chief Justice observed at 378:

“In the case of an officer in a classification which is remunerated by wages rather than salary, it might be convenient in applying the section to substitute the word “wages” for “salary”.  I think that course permissible in the circumstances.  If the wage is set as a periodic rate, that is to say, a stated sum payable by the week or fortnight to officers in the classification, the section will operate, in my opinion, exactly as it would if a rate of salary were stipulated for the classification.”

9          Further, Gibbs J, in Kesby said at 388:

“The ‘salary’ therefore in my opinion means the full amount of wages payable, for the time being, to officers generally of the relevant classification and length of service for the work which such officers are regularly required to perform in the ordinary course of their employment.” 

10       Having regard to the statements made in the Applicant’s application and to the provisions of the Award, I am satisfied that the Applicant was employed “on the salaried staff of a public authority”. 

11       It is clear that the Applicant cannot be said to have been a “railway officer” as defined in s 80M of the Act.  Section 80M of the Act defines a “railway officer” to mean:

“Any specified award employee (as defined the Government Railways Act 1904 section 73) –

(a) holding or acting in a salaried position; or

(b) receiving a daily rate of pay as a temporary clerk in the service of the Public Transport Authority;”

12       A “specified award employee” is defined in s 73(4) of the Government Railways Act 1904 to mean a person who was employed under s 73 immediately before it was amended by the PTA Act s 126 and, when that amendment took effect, became an employee of the Respondent but only if the person’s employment was, before the amendment took effect, and continues to be, covered by –

(a) the Government Railways Locomotive Enginemen’s Award 1973-1990 No. 13 of 1990; or

(b) the Railway Employees’ Award No. 18 of 1969.

13       Clause 4 – Area and Scope of the Government Railways Locomotive Enginemen’s Award 1973 - 1990 only applies to workers employed by the Respondent in and about the working of the State Railways.  A “worker” is defined in clause 5(18) to mean a person employed as a driver, driver’s assistant, fireman, locomotive trainee or permanent cleaner.

14       Clause 4 – Area and Scope of the Railway Employees’ Award No. 18 of 1969 only applies to workers employed by the Respondent in and about the working and maintenance of the railways and road services operated by the Respondent, and in connection with railway refreshment services.  Further, the Railway Employees’ Award does not apply to special maintenance, reconstruction or construction works in the Permanent Way, and/or Structure Sections, where the estimated cost of which on account of wages exceeds $5,000 or part-time workers in positions of attendants, caretakers of sidings or caretakers of barracks.

15       It is clear that the Applicant cannot be described as a “specified award employee” for the purposes of s 80M of the Act, so as to be able to characterise her status as a “railway officer” within the meaning of that section.

16       I am also satisfied that the Applicant occupied a position that carried a salary lower than “the prescribed salary” within the meaning of s 80I(1)(e) of the Act.  In s 80I(2) “prescribed salary” is defined to mean the lowest salary for the time being payable in respect of a position included in the Special Division of the Public Service for the purposes of s 6(1) of the Salaries and Allowances Act 1975. 

17       The Respondent tended into evidence a determination by the Salaries and Allowances Tribunal made on 8 April 2004, in respect of holders of offices included in the Special Division of the Public Service and prescribed offices (Exhibit 2).  It is clear from Exhibit 2 that the salary the Applicant was entitled to, was lower than the salary prescribed by the Salaries and Allowances Tribunal in the determination made on 8 April 2004. 

18       In light of the foregoing I am satisfied that when the Applicant’s employment terminated on 3 June 2004, the Applicant was entitled to challenge the decision of the Respondent to dismiss her by making an application to the Public Service Appeal Board, pursuant to s 80I of the Act.

19      The question then arises as to whether the Commission’s general jurisdiction under s 29(1)(b)(i) of the Act is ousted by the jurisdiction of the Public Service Appeal Board under s 80I of the Act.  As McHugh J in Minister for Immigration and Multicultural Affairs v Wang (2003) 77 ALJR 786 observed at [33] it is an elementary rule of statutory construction that powers conferred by general words (in this case s 29(1)(b)(i) of the Act) are not intended to overrule or supersede powers conferred in specific terms (in this case the right of appeal under s 80I of the Act).  This rule was formulated in Anthony Hordern and Sons Ltd and Others v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, by Gavan Duffy CJ and Dixon J when their Honours observed at 7:

“Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when s 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing.  When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

20      This principle has often been applied by the Commission and was recently applied by the Industrial Appeal Court in Food Preservers Union of Western Australia, Union of Workers v The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers, Western Australia Branch (2001) 81 WAIG 1141. 

21      When the principle enunciated in Anthony Hordern and Sons Ltd and Others v Amalgamated Clothing and Allied Trades Union of Australia (op cit) is applied to this matter it is clear that the general power in s 29(1)(b)(i) of the Act to bring an application cannot be exercised when there is a special power in s 80I to hear and to determine whether the decision to dismiss the Applicant’s application should be adjusted. 

22      In Bellamy v Chairman, Public Service Board (1986) 66 WAIG 1579, the same jurisdictional issue was raised in that appeal that is raised in this matter.  Mr Bellamy was a Government officer who made an application under s 29(1)(b)(i) of the Act.  The Commissioner hearing the matter at first instance dismissed the Applicant’s claim on the basis that the Commission in its general jurisdiction had no power to hear and determine the matter as the Public Service Appeal Board had exclusive jurisdiction to hear and determine an appeal by a Government officer from a decision to dismiss.  The Full Bench in that case upheld the decision of the Commission of first instance and dismissed the appeal. 

23      Whilst it is not determinative of this matter I do not agree with the Respondent’s submission that the Public Service Arbitrator also has jurisdiction to deal with this matter.  When the principle enunciated in Anthony Hordern and Sons Ltd and Others v Amalgamated Clothing and Allied Trades Union of Australia (op cit) is applied to s 80E of the Act, it is clear that when a Government officer is dismissed that the jurisdiction of the Public Service Arbitrator under s 80E of the Act is ousted by the power vested in the Public Service Appeal Board under s 80I of the Act.

24      For the reasons set out above I will make an order dismissing the application.