WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED

APPLICANT

-v-

CHIEF EXECUTIVE OFFICER DISABILITY SERVICES COMMISSION

RESPONDENT

CORAM COMMISSIONER S J KENNER

 PUBLIC SERVICE ARBITRATOR

DATE WEDNESDAY, 27 APRIL 2005

FILE NO. PSAC 5 OF 2005

CITATION NO. 2005 WAIRC 01349

Catchwords Industrial law - Application to seek reinstatement of applicant’s member pending hearing and determination of Public Service Appeal Board appeal - Whether Arbitrator has jurisdiction or power to make interim orders sought - Arbitrator has no jurisdiction to make orders - Application dismissed - Industrial Relations Act 1979 (WA) s 32, s 44, s 80C, s 80E, s 80G, s 80H, s 80I, s 80L; Public Sector Management Act 1994, s 78

Result Application dismissed

Representation 

Applicant Ms J van den Herik

Respondent Ms N Jones

Reasons for Decision

1           The substantive application in this matter is one brought by the applicant against the respondent which originally sought from the Public Service Arbitrator (“Arbitrator”), the determination of an industrial dispute concerning the proposed dismissal of a member of the applicant by the respondent.  In conjunction with the substantive application filed, was a further application seeking from the Arbitrator, an interlocutory order to prevent the dismissal of the applicant's member until the hearing and determination of the substantive dispute.

2           It appears that despite best endeavours being undertaken to list the compulsory conference pursuant to s 44 of the Industrial Relations Act 1979 (“the Act”) expeditiously, the day after the notice of application was filed, the relevant member’s employment was terminated.

3           Upon that event, the applicant commenced an appeal to the Public Service Appeal Board (“Appeal Board”) in application PSAB 2 of 2005.  Subsequently, a compulsory conference in the herein matter was convened pursuant to s 44 of the Act.  At that conference, the issue of the Arbitrators' jurisdiction to entertain both the substantive claim and additionally, an amendment brought by the applicant to seek an interim order of reinstatement of the applicant's member, pending the hearing and determination of PSAB 2 of 2005, were raised.  Given the jurisdictional issues being raised at that time, I directed the parties to file and serve submissions as to their contentions on the Arbitrator's jurisdiction, in particular, the jurisdiction of the Arbitrator in this case, to make an interim order of reinstatement, pending the hearing and determination of PSAB 2 of 2005 before the Appeal Board. 

4           The parties have duly filed their written submissions in accordance with my direction.  I have carefully considered those submissions in coming to my conclusions in relation to this matter.

Contentions

5           In summary, the applicant contended that the Arbitrator's jurisdiction and powers are wide as to government officers under the Act, and the mere institution of an appeal to the Appeal Board, does not deprive the Arbitrator of its jurisdiction and power to make an interim order, given that s 44 of the Act, is by reason of s 80G of the Act, incorporated into the Arbitrator's jurisdiction.  The submission was that by s 44 of the Act, the Commission constituted by a Commissioner, has power to make an interim reinstatement order, and accordingly, such an order can and should be made in this case.

6           For the respondent, in short it was contended that the jurisdiction and powers of the Arbitrator and the Appeal Board are separate and distinct under the Act.  The Parliament has determined that the Appeal Board has jurisdiction over certain matters, and its jurisdiction does not extend to conciliation or the making of interim orders, as does the jurisdiction of the Arbitrator.  It was the respondent's submission, that this is made plain by s 80L of the Act, which in contrast to s 80G of the Act, does not incorporate conciliation powers under ss 32 and 44 of the Act.

Consideration

7           The short issue to be determined is whether an Arbitrator has jurisdiction and power to make an interim order of reinstatement pending the hearing and determination of an appeal to the Appeal Board.  The provisions of Part IIA of Division 2 of the Act, in relation to the jurisdiction of an Arbitrator and the Appeal Board, are exclusive to that of the general jurisdiction of this Commission: Bellamy v Public Service Appeal Board (1986) 66 WAIG 1579.  This proposition is founded upon the principle of statutory interpretation known as generalia specialibus non derogant meaning where there is a conflict between general and specific provisions in an enactment, the specific provisions will prevail: Statutory Interpretation Australia Fifth Ed Pearce and Geddes at par 4.30.  Therefore, both the jurisdiction of the Arbitrator and the Appeal Board are special and exclusive jurisdictions to deal with industrial matters for government officers.

8           By s 80E of the Act, the Arbitrator has exclusive jurisdiction to inquire into and deal with any industrial matter relating to a government officer.  Relevantly, s 80E of the Act provides as follows:

 “Jurisdiction of Arbitrator

 (1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a Government officer, a group of Government officers or Government officers generally.

 (2) Without limiting the generality of subsection (1) the jurisdiction conferred by that subsection includes jurisdiction to deal with — 

 (a) a claim in respect of the salary, range of salary or title allocated to the office occupied by a Government officer and, where a range of salary was allocated to the office occupied by him, in respect of the particular salary within that range of salary allocated to him; and

 (b) a claim in respect of a decision of an employer to downgrade any office that is vacant.

(3) An Arbitrator also has the jurisdiction conferred on an Arbitrator as a relevant industrial authority by —

 (a) Part VID Division 5 Subdivision 3;

 (b) section 97WI; and

 (c) section 97WK.

(4) The jurisdiction referred to in subsection (3) is to be exercised in accordance with the relevant provisions of Part VID, and the provisions of —

 (a) subsection (6); and

 (b) section 80G,

  do not apply to the exercise of any such jurisdiction by an Arbitrator.

(5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any Government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.

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

 (a)  with the consent of the Chief Commissioner refer an industrial matter referred to in subsection (1) or any part of that industrial matter to the Commission in Court Session for hearing and determination by the Commission in Court Session; and

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

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

(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.”

9           By s 80G of the Act, the Arbitrator has available “Subject to this Division” (i.e. Division 2 of Part IIA) such powers as may be exercised by the Commission constituted by a Commissioner.  Section 80G provides as follows:

“Provisions of Part II, Division 2, to apply

(1)  Subject to this Division, the provisions of Part II Divisions 2 to 2G that apply to or in relation to the exercise of the jurisdiction of the Commission constituted by a Commissioner shall apply with such modifications as are prescribed and such other modifications as may be necessary or appropriate, to the exercise by an Arbitrator of his jurisdiction under this Act.

(2)  For the purposes of subsection (1), section 49 shall not apply to a decision of an Arbitrator on a claim mentioned in section 80E(2).”

10        Therefore the Arbitrator has a broad general jurisdiction and powers in relation to government officers as set out in Division 2 of Part IIA the Act.

11        By s 80H, there is established the Appeal Board.  The Appeal Board is established for the specific purpose and the only purpose, of hearing and determining appeals brought pursuant to s 80I of the Act.  Section 80H relevantly provides as follows:

“Public Service Appeal Board

(1) For the purpose of an appeal under section 80I there shall be established, within and as part of the Commission, a Board to be known as a Public Service Appeal Board.

(2) A Board shall consist of 3 members.

(3) In the case of an appeal referred to in section 80I(1)(a), (b) or (c), the members of a Board shall be — 

 (a) the President, who shall be the Chairman;

 (b) an employer’s representative appointed by the employer of the appellant; and

 (c) an employee’s representative appointed by the relevant organisation.

(4) In the case of an appeal referred to in section 80I(1)(d) or (e), the members of a Board shall be — 

 (a) a Public Service Arbitrator, who shall be the Chairman;

 (b) an employer’s representative appointed by the employer of the appellant; and

 (c) an employee’s representative appointed by the relevant organisation.

(5)  In subsections (3) and (4) “relevant organisation” means the Association unless the appellant is a member of another organisation in which case it means that organisation.

(6)  In this section and section 80J “organisation” means an organisation of employees registered under Division 4 of Part II, an association of employees registered as an organisation pursuant to the provisions of the Commonwealth Act or, in the case of an appeal by a medical practitioner employed in a public hospital, the Western Australian Branch of the Australian Medical Association Incorporated.

(7)  In subsection (4) “Public Service Arbitrator” means a Commissioner who is, for the time being, a Public Service Arbitrator appointed under section 80D.”

12        For the purposes of the jurisdiction of the Appeal Board, it has certain powers of the Commission as set out in s 80L of the Act, but notably, not all of the powers as for the Arbitrator pursuant to s 80G of the Act.  Specifically, there is no power available to the Appeal Board, to convene conciliation conferences either under s 32 or 44 of the Act.

13        The matters  that may be the subject of an appeal to the Appeal Board are set out in s 80(I) of the Act which provides as follows:

“Appeals

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

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

 (b) an appeal by a Government officer, who is the holder of an office included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975, under section 78 of the Public Sector Management Act 1994 against a decision referred to in subsection (1)(b) of that section;

 (c) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any Government officer who occupies a position that carries a salary not lower than the prescribed salary from a decision, determination or recommendation of the employer of that Government officer that the Government officer be dismissed;

 (d) an appeal by a Government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision referred to in subsection (1)(b) of that section;

 (e) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, 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,

  and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e).

 (2) In subsection (1) “prescribed salary” means 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 section 6(1) of the Salaries and Allowances Act 1975.

 (3) A Board does not have jurisdiction to hear and determine an appeal by a Government officer from a decision made under regulations referred to in section 94 of the Public Sector Management Act 1994.

 [Section 80I inserted by No. 94 of 1984 s. 47; amended by No. 32 of 1994 s. 14; No. 1 of 1995 s. 29.]

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

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

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

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

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

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

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

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

20        This conclusion is fortified in my opinion by s 78 of the Public Sector Management Act 1994(“PSM Act”).  Section 78 of the PSM Act relevantly provides as follows:

“Rights of appeal and reference

 (1) Subject to subsection (3) and to section 52, an employee who —

 (a) is a Government officer within the meaning of section 80C of the Industrial Relations Act 1979; and

 (b) is aggrieved by a decision made in the exercise of a power under section 79(3)(b) or (c) or (4), 82, 86(3)(b), (8)(a), (9)(b)(ii) or (10)(a), 87(3)(a), 88(1)(b)(ii) or 92(1),

  may appeal against that decision to the Industrial Commission constituted by a Public Service Appeal Board appointed under Division 2 of Part IIA of the Industrial Relations Act 1979, and that Public Service Appeal Board has jurisdiction to hear and determine that appeal under and subject to that Division.

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

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

 (b) is aggrieved by a decision referred to in subsection (1)(b),

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

 (3) Despite section 29 of the Industrial Relations Act 1979, but subject to section 52, an employee — 

 (a) against whom proceedings have been taken under this Part for a suspected breach of discipline arising out of alleged disobedience to, or disregard of, a direction which is by virtue of section 94(4) a lawful order for the purposes of section 80(a); and

 (b) who is aggrieved by a decision made in the exercise of a power under section 82, 86(3)(a), (8)(a), (9)(b)(i) or (10)(a), 87(3)(a) or 88(1)(b)(i),

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

 (4) In exercising its jurisdiction under subsection (3) in relation to a decision consisting of a lawful order referred to in section 94(4), the Industrial Commission shall confine itself to determining whether or not that decision has been, or is capable of having been, complied with.”

21        It is notable that there is specific provision made in s 78(1) for appeals to the Appeal Board only and indeed, arguably, this section confers jurisdiction on the Appeal Board in respect of such matters.  There is no reference to the Arbitrator in relation to such matters in s 78 of the PSM Act.  I am also at least in part, fortified in my conclusions by the legislative history of Division 2 of Part IIA, as dealt with by the Full Bench in Bellamy at 1580-1582. 

22        Given the foregoing, in my opinion, no provision exists for the Appeal Board to make interim reinstatement orders of the kind sought in this case.  It is clear that the powers of an Appeal Board are limited.

23        There is a further difficulty for the applicant in the present proceedings.  The applicant purports to rely upon s 44(6)(ba) and (bb) incorporated by s 80G of the Act, as the source of power for its claimed interim reinstatement order, “pending the hearing and determination of PSAB 2 of 2005”.

24        The substance of PSAC 5 of 2005, the herein application, was originally to prevent the respondent from taking steps to dismiss the applicant's member on the grounds as set out in the schedule to the application, and for conciliation and if necessary arbitration, to resolve that dispute.  As noted above, prior to the s 44 compulsory conference being listed, the applicant's member was dismissed by the respondent and appeal PSAB 2 of 2005 was filed, challenging the dismissal of the employee under s 80I of the Act.  It was only after the s 80I appeal was filed, and prior to the s 44 conference in PSAC 5 of 2005 being listed, was an amendment made to the schedule to the application to seek an interim reinstatement order.

25        By s 44(6)(bb)(ii) of the Act, the Commission is empowered “in the case of a claim of harsh, oppressive or unfair dismissal of an employee” to make any interim order that the Commission thinks appropriate in the circumstances “pending the resolution of the claim”.

26        There is no doubt in my opinion, that the s 44 compulsory conference power is available to an Arbitrator exercising jurisdiction under s 80E of the Act, in this context, by s 80G(1) of the Act, “with such modifications as are prescribed and such other modifications as may be necessary or appropriate.”  This latter section requires reference to “the Commission” in s 44 of the Act, to be read as “an Arbitrator” as defined in s 80C(1) of the Act.

27        It is clear from the textual provisions of s 44(6)(bb)(ii), that for the interim order power to be exercised by the Commission, there must be before the Commission “a claim of harsh, oppressive or unfair dismissal of an employee” and the power of the Commission is only to be exercised “pending the resolution of the claim.”  In my view, clearly, “the claim” is to be read as the claim of harsh, oppressive or unfair dismissal of an employee.

28        In the instant application before me, no such claim of unfair dismissal is made.  Nor can there be in my view, for the reasons set out above, given the specific jurisdiction of the Appeal Board, in relation to such matters.  Thus there is no claim on foot before the Arbitrator that could found any such interim reinstatement order in any event.

29        For all of the foregoing reasons, I conclude that there is no jurisdiction or power for the Arbitrator in the context of the present application, to make the interim orders sought.  The application is dismissed.