AN APPEAL AGAINST THE DECISION OF THE COMMISSION IN MATTER PSAC 5/2005 GIVEN 27 APRIL 2005

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA

APPELLANT

-and-

DR RUTH SHEAN, CHIEF EXECUTIVE OFFICER, DISABILITIES SERVICES COMMISSION

RESPONDENT

CORAM FULL BENCH

 HIS HONOUR THE PRESIDENT P J SHARKEY

CHIEF COMMISSIONER A R BEECH

SENIOR COMMISSIONER J F GREGOR

HEARD FRIDAY, 1 JULY 2005

DELIVERED THURSDAY, 14 JULY 2005

FILE NO. FBA 4 OF 2005

CITATION NO. 2005 WAIRC 02043

CatchWords Industrial Law (WA) - appeal against the decision of the Public Service Arbitrator - Public Service Arbitrator's jurisdiction to make interim orders - application that appeal be dismissed - public interest - matter moot - whether appeal should lie - power to dismiss appeal - Industrial Relations Amendment Act 1987, Industrial Relations Act 1979 (as amended), s7, s26(1)(a), s27(1), s27(1)(a), s27(1)(a)(iv), s27(1)(b)-(r), s27(1)(u), s27(1)(v), s44(6), s44(6)(bb)(ii), s49, s49(1)-(9), s49(2a), s49(5), s49(5)(a), s49(5)(b), s49(5)(c), Public Sector Management Act 1994, s73(3)(b), s78, Interpretation Act 1984.

Decision Appeal dismissed.

Appearances

Appellant  Mr W Claydon, as agent and with him Ms J van den Herik

Respondent Mr R Bathurst (of Counsel), by leave

Reasons for Decision

THE PRESIDENT:

INTRODUCTION

1         This is an appeal brought pursuant to s49 of the Industrial Relations Act 1979 (as amended) (hereinafter referred to as “the Act”).  The appeal is against a decision of the Public Service Arbitrator (hereinafter referred to as the “Arbitrator”) which is contained in an order made on 27 April 2005, whereby an application for an interim order for reinstatement was dismissed.

2         The appellant, the Civil Service Association of Western Australia (Inc) (hereinafter referred to as “the CSA”) appeals against the decision on the basis that the exercise of the discretion miscarried, by reference to the discretionary powers under s44(6) of the Act.

3         It is also alleged, pursuant to Ground 2 of the grounds of appeal, that the Arbitrator erred in law and in fact in his interpretation of the Public Sector Management Act 1994 (hereinafter referred to as “the PSM Act”) by failing to give appropriate consideration to actions or decisions made by the respondent carried out before it made a decision under s79(3)(b) of the PSM Act.

4         It was alleged that the Arbitrator failed to find that the CSA made the application, No PSAC 5 of 2005, and that the subject of the application was Ms Nancy Siew Muay Ngiam and thus that s78 of the PSM Act did not apply.

5         It is also alleged that the Arbitrator erred because he failed to consider the operation of the Interpretation Act 1984 and the objects of the Industrial Relations Amendment Act 1987 which introduced s44(6).

6         It was also alleged that the Arbitrator erred in law, having regard to the decision of the Commission in Bellamy v Chairman, Public Service Board (1986) 66 WAIG 1579.

7         That is a summary of the salient grounds of the appeal.  It is not necessary to reproduce them or consider them in any detail.

BACKGROUND

Parties and Proceedings at First Instance

8         The CSA is and was, at all material times, an “organisation” of employees, as the term “organisation” is defined in s7 of the Act.  At all material times, Ms Ngiam was a government officer and a Level 1 employee of the respondent, who was Chief Executive Officer of the Disability Services Commission.  At all material times, too, one infers, Ms Ngiam was a member of the CSA.

9         A dispute arose between the respondent, Dr Shean, and Ms Ngiam because of Ms Ngiam’s proposed dismissal by the respondent.  Ms Ngiam was represented in the dispute by the CSA.  It seems to be common ground that Ms Ngiam had received a letter from the respondent on 29 December 2004 requiring her to show cause why she should not be dismissed. On the same day, on her behalf, the CSA filed and served an application to the Arbitrator (application No PSAC 5 of 2005) whereby it sought an interlocutory or interim order maintaining the status quo, that is, it sought to prevent her dismissal until application PSAC 5 of 2005 was heard and determined.  Later, it would appear, the order sought after her dismissal was effected was amended to or treated as an application for her interim reinstatement.

10      However, notwithstanding, the respondent terminated Ms Ngiam’s contract, dismissing her on 21 January 2005.  On 1 February 2005, Ms Ngiam appealed against that decision to the Public Service Appeal Board (hereinafter referred to as “the Appeal Board”) by application No PSAB 2 of 2005, which seems to have been accepted as having the only jurisdiction to deal with the matter.

11      On 1 March 2005, there was a conciliation conference called by the Arbitrator.  At that conference, the respondent (at first instance) foreshadowed that she would submit that there was no jurisdiction in the Arbitrator to hear and determine the application for interim orders, much less to make them.  That application for interim orders, PSAC 5 of 2005, (and it was confined to an application for such orders) was heard on written submissions and determined by the Arbitrator on 27 April 2005 by the issue of his decision with the reasons therefor.  (Significantly, there was no claim of unfair dismissal before the Arbitrator at any time and it seems that it was accepted by the parties that it could not be, since jurisdiction in such a matter was and is confined to the Appeal Board.)

12      As I said above, the Arbitrator’s order dismissing the application was on 27 April 2005.  The Arbitrator decided that there was no provision in the PSM Act or the Act enabling the Appeal Board to make the order sought in this case, (ie) an interim order reinstating Ms Ngiam.

13      Put shortly, the Arbitrator then went on to find that he lacked jurisdiction to make the interim order himself because, under s44(6)(bb)(ii) of the Act, there must be before the Commission “a claim of harsh, oppressive or unfair dismissal of an employee” and, further, because the power to make such an order could only be exercised “pending the resolution of the claim”, (ie) the claim of harsh, oppressive or unfair dismissal of an employee.

14      The Arbitrator, noting that no such claim of unfair dismissal had been made in the Arbitrator’s jurisdiction, also observed that it could not be because of the specific jurisdiction of the Appeal Board in relation to such claims.  Without a claim before the Arbitrator, the Act, the Arbitrator found, gave no power or jurisdiction to make any interim order and the interim order sought.  Thus, he found that there was no jurisdiction or power to make the interim order sought.

This Appeal

15      The CSA appealed against the Arbitrator’s decision of 27 April 2005 to dismiss application PSAC 5 of 2005, by a Notice of Appeal filed in the Commission on 12 May 2005, brought under s49 of the Act to the Full Bench, and seeking orders that the application for interim orders be remitted back to the Arbitrator for hearing and determination.

16      The grounds of appeal herein set out the allegations of error and it is unnecessary to deal with them here.

Finding – Appealed Against

17      I should, however, observe that, on the date fixed for the hearing of the appeal, the CSA sought and was granted leave to add a paragraph alleging that the decision appealed against was a “finding”, as defined in s7 of the Act, and also contending that the matter was one of such importance that, in the public interest, an appeal should lie.

18      It was correctly conceded on behalf of both parties that the appeal was against a “finding”, as defined, which it clearly was, because the decision did not and could not finally dispose of the industrial matter of the proposed or actual dismissal of Ms Ngiam.  Indeed, the matter of dismissal could not even be before the Arbitrator, because he had no jurisdiction entertain it as the parties seem to have agreed.

Appeal Board Application Discontinued – Letter from Ms Ngiam

19      It was common ground that, after this appeal was instituted and before the date of the hearing, 1 July 2005, the appeal to the Appeal Board was discontinued and there was no longer any matter pertaining to Ms Ngiam’s dismissal before the Appeal Board.  It was also clear, and there was evidence of it, that Ms Ngiam no longer required that the CSA take any further action in relation to her dismissal.  Indeed, exhibit 1 which the Full Bench admitted was a letter purporting to be signed by Ms Ngiam and forwarded as a facsimile, undated but bearing facsimile dates of transmission 20 and 21 June 2005.  That letter was addressed to the Secretary of the CSA marked “Attn: Mr Brendan Cusack”, and also forwarded in copy form to the Registrar of this Commission and to the Disability Services Commission.

20      Formal parts omitted, that letter reads as follows:-

 “Please be advised that I have settled my dispute with my employer the Disability Services Commission.

 The proceedings before Kenner C in PSAC 5 of 2005, which seek orders for my interim reinstatement, are now of no relevance to me as I no-longer (sic) wish to have the Commission order me to be reinstated.  No useful purpose would be achieved if the above appeal to the Full Bench of the Commission was allowed and the decision at first instance set aside.

 I request that you discontinue the appeal.”

21      The letter is headed “Re:  WAIRC FBA 4 of 2005  CSA –v- Disability Services Commission”, clearly identifying itself as relating to this appeal.

S27(1)(a)(iv) Application

22      An application was filed on behalf of the respondent pursuant to s27(1)(a)(iv) of the Act on 22 June 2005 whereby she sought that the appeal be dismissed because Ms Ngiam had reached a settlement with the respondent and no longer wished the Arbitrator to order her reinstatement to the Disability Services Commission.  The reinstatement issue, it was alleged in the application, was now a dead issue between the parties and it was contended that it is not the function of the Commission to decide hypothetical questions or dead issues or to provide legal advice to the parties.

23      That application was opposed by the CSA because Ms Ngiam was not a party to the appeal and neither she nor the Disability Services Commission had the right to interfere with the appeal rights of the CSA or other procedural rights under the Act.  Further, it was alleged that the CSA had told Ms Ngiam and the Commission that it would not compromise its rights.

S49(2a) of the Act

24      Whilst asserting, too, that it is in the public interest that the appeal proceed, the CSA also asserted that the question of public interest should be determined under s49(2a) of the Act and not under s27(1)(a).

25      At the hearing of the appeal, the Commission invited submissions in relation to the application under s27(1)(a)(iv) of the Act and in relation to the status of the appeal under s49(2a).

26      As an appeal against a finding, s49(2a) of the Act applies to this appeal.  S49(2a) prescribes quite clearly that:-

 “An appeal does not lie under this section from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie.”

27      As Full Benches of this Commission have held, that means that no appeal against a finding is competent until the Full Bench has reached the opinion that the matter is of such importance that, in the public interest, an appeal should lie.  That means, of course, too, that the s27(1)(a)(iv) application is not competent because no appeal lies, (ie) no appeal is competent, until the Full Bench finds in accordance with s49(2a) of the Act that an appeal should lie.  Therefore, the Full Bench’s task was to decide whether the appeal should lie, having regard to the requirements of s49(2a).  Full Benches have laid down principles relating to these matters (see Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia and Others (1989) 69 WAIG 1873 at 1879 (FB); see also Mt Newman Mining Co Pty Ltd v Australian Workers’ Union, West Australian Branch, Industrial Union of Workers (1986) 66 WAIG 1925 (FB)).

28      Moreover, as was submitted, Butterworths Concise Australian Legal Dictionary defines “public interest” as:-

 “an interest common to the public at large or a significant portion of the public and which may or may not involve the personal or proprietary rights of individual people.”

29      However, the interest of a particular organisation or peak body, it is trite to observe, in challenging the reasoning of a decision, is not to be equated with the public interest (see Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch and Others (1990) 70 WAIG 1281 at 1282 (IAC)).

30      The degree of importance must be beyond important simplicita.  Further, the words,  “public interest” should not be narrowed to mean special or extraordinary circumstances.  An application may involve circumstances which are neither special or extraordinary but which are, because of their very generality, of great importance in the public interest (see Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd and Others 78 ALR 466).  We agree with that proposition.  In Re Gas Industry Award 104 CAR 376, Wright and Moore JJ and Gough C said that the question of sufficient importance cannot be decided on the basis of case law.  Each case will be a question of impression and judgment whether the appeal has the required degree of importance.  We agree. 

31      Further, an appeal will not lie unless the Commission has formed a positive opinion of the public interest of the matter.  Doubts or misgivings are not sufficient.  Further,  it is obviously impossible to express any general standard or degree of importance which will satisfy the test of such importance and every case must be viewed on its merits according to its individual circumstances.

32      Important questions with likely repercussions in other industries apart from the industry in question or the subject of any matter before the Commission, can give rise to matters of sufficient importance in the public interest to justify an appeal.

33      Those are the matters which were referred to by the Full Bench in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia and Others (FB) (op cit).  They give some indication of what is required to be decided in relation to the question of public interest under s49(2a) of the Act.

34      The crux of the respondent’s submission and, indeed, the s27(1)(a)(iv) application too, was that, since the appeal to the Appeal Board against Ms Ngiam’s dismissal had been discontinued and the matter settled (see her letter exhibit 1), then the Full Bench should not and could not reach the opinion that the matter was of such importance that, in the public interest, the appeal should lie because the matter of the appeal was dead, the substantive matter of the dismissal and the remedy sought for it in the Appeal Board being entirely dead.  That followed the discontinuance of the appeal in the Appeal Board.

35      It followed, of course, as I understand the submission, that the appeal, because it related to the question of the jurisdiction of the Arbitrator to make interim orders which could not be made by the Appeal Board, related to a dead issue for that reason also.  Put shortly, the whole reason why an interim order was sought had vanished because there was no employment to reinstate, on an interim or other basis and no remedy was sought any longer at all, either in the Appeal Board or before the Arbitrator in relation to Ms Ngiam’s dismissal.  That was clearly the case.

36      The Full Bench was taken to a number of authorities.  However, it is a clear principle applicable in this Commission that, unless the public interest dictates otherwise, the Commission’s charter is to deal with practical solutions and not to engage in merely academic exercises (see Civil Service Association of WA Inc v Director General, Department of Consumer and Employment Protection (2002) 82 WAIG 952 at para 45 (FB)).

37      This Commission is also bound by the principle laid down in Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch and Others (IAC) (op cit).  That principle is expressible, as it was expressed in Ku-Ring-Gai Municipal Council v Suburban Centres Pty Ltd (1971) 2 NSWLR 335 at 339 as follows:-

 “it is not the function of the established courts to entertain applications which are designed solely or primarily as a means of obtaining legal advice for potential litigants, and courts should, so far as possible, avoid making determinations of hypothetical questions.”

38      The Industrial Appeal Court in those reasons for decision applied the ratio of Veloudos and Others v Young [1981] 56 FLR 182 as follows:-

 “Courts will not decide a question that is academic in the sense that it is useless, merely hypothetical, raised prematurely or a dead issue; although they preserve a discretion to determine a question which has ceased to be a live issue inter partes, whether determination would be in the public interest.”

39      As I have said, those dicta were applied in Confederation of Western Australia Industry (Inc) v Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch and Others (IAC) (op cit) at page 1282.  Those principles were also applied by a Full Bench of this Commission in Western Mining Corporation Limited v Australian Workers’ Union, Western Australian Branch, Industrial Union of Workers (1997) 77 WAIG 1079 at 1080-1081 (FB). 

40      In my opinion, there is nothing to suggest that is not the law applicable in this Commission just because this Commission is not the Industrial Appeal Court.

41      That law was applied by the Industrial Appeal Court, to an “industrial matter” which is what determines the jurisdiction of this Commission.  Thus, because Their Honours determined that those principles should apply to an appeal in relation to an industrial matter, then properly that ratio is applicable to decisions in relation to all industrial matters in this Commission, including those the subject of appeals to Full Benches.

42      Confederation of Western Australia Industry (Inc) v Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch and Others (IAC) (op cit) represents the law in this Commission and, indeed, was expressed in a different way, but to the same effect, to be the law in Civil Service Association of WA Inc v Director General, Department of Consumer and Employment Protection (FB) (op cit).

43      It was submitted for the CSA that this appeal should, in the opinion of the Full Bench, lie because it was in the public interest that it should do so.  Central to the submission is the fact that the CSA represents both public service and government officers.  It was also submitted that the matter was of sufficient public interest, within the meaning of s49(2a) of the Act because:-

(a)                 There was a need for a level playing field for all employees and unions or the maintenance of status quo in respect of the ability to apply for interim orders.

(b)                 To protect union members’ rights of access to remedial legislation.

(c)                 To protect the CSA’s representation rights to seek interim orders.

(d)                 To maintain consistent principles in respect of applications for interim orders in view of conflicting decisions of the Commission.

(e)                 To prevent remedial legislation from being undermined by minor canons of construction, when the statutory purpose is clear and the objects of the Act are capable of being advanced in accordance with the Interpretation Act 1984.

44      Of course, the opinion which the Full Bench is required by s49(2a) of the Act to form is not that it is in the public interest that the appeal should lie, but that, in the opinion of the Full Bench, the matter (of the appeal) is of such importance (my emphasis) that, in the public interest, the appeal should lie. 

45      In my opinion, the question is of importance whether a person seeking a remedy from the Appeal Board has a remedy in that board, or before the Arbitrator, or at all, by way of an order for interim reinstatement.  However, this matter is entirely dead, there is no controversy, and the person on whose behalf the proceeding was sought seeks no substantive remedy.  Further, the reasons advanced by the CSA are all reasons in support of a submission that the appeal should be decided as a hypothetical matter and by way of legal advice.  Given that the question of an interim remedy exists in such matters, that is, claims of unfair dismissal in the Appeal Board, and complementing it, claims for interim orders of reinstatement whilst a claim is made to the Appeal Board, before the Arbitrator, it is not of such public interest that, when the matter is moot, as it is, the Full Bench should determine that question of jurisdiction or power.

46      Indeed, a fortiori, provided that a substantive application to an Appeal Board can bring a remedy in reinstatement, if the merits are in favour of that occurring quickly, then the consideration of principles relating to jurisdiction to make interim orders, and submitted to exist by the CSA, are not so important that they require an answer in vacuo, as a matter of public interest.  That is because the question of whether there is a power to order reinstatement on an interim basis becomes a relatively unimportant matter if that remedy is available, and it is.

47      The matter is hypothetical and dead, in any event, within the authorities to which I have referred.  The question of powers to order interim reinstatement are not so important that it is important that the Full Bench should, on this appeal, hear and determine this application when the matter is moot, or at all, in the circumstances of this matter.

48      For all of those reasons, I did not and was unable to reach the opinion required to be reached by s49(2a) of the Act.  I therefore concluded that the appeal did not lie and agreed with my colleagues to dismiss it, since it was not a matter of such importance that, in the public interest, an appeal should lie.

S27(1)(a)(iv) of the Act

49      As to the application under s27(1)(a)(iv) of the Act, which involved the same considerations of the issues of deadness, of the hypothetical and of public interest, it is unnecessary to deal with it, having regard to what I have decided under s49(2a).  However, I will nonetheless consider it in the alternative, since it was raised in these proceedings.

50      S27(1)(a)(iv) of the Act reads as follows:-

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

   (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied — 

  ……

   (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued”

51      There was one preliminary submission for the CSA on this point which requires consideration.  It was submitted that the power of the Commission conferred by s27(1)(a) of the Act did not apply to appeals brought under s49 because the relevant jurisdiction is expressly conferred under s49 and stands alone, the doctrine of generalia specialibus non derogant applies.  In fact, the rule, arguably, does not apply but, even if it does, the observations which I now make dispose of the point.

52      The question is whether s27(1) powers apply or do not apply because s49 appeals are excepted from the application of s27 of the Act or are partly excepted from the application of s27.  First, s27(1) is not excluded by the express or implied wording of s49 from applying to the jurisdiction of the Full Bench under s49.  Thus, the powers prescribed by s27(1)(b) to (r) and (v) apply.  It is clear that the sort of procedural matters they apply to are not proscribed either implicitly or expressly in s49, and that appeals under s49 could not be dealt without recourse to most or all of the powers prescribed by s27(1)(b) to (r) and (v), from time to time.

53      Further, that is the case, because s49(5) of the Act in particular, and no other part of the Act, purports to exclude those powers, all of which are and might be required to be resorted to from time to time and none of which conflicts with any provision of s49 insofar as it relates to appeals, particularly s49(5).

54      As to s27(1) of the Act, s49 prescribes special jurisdiction and powers in the Commission different from those prescribed by s27(1).  They do not appear in s27(1).  However, s27(1) would not seem to have, on the face of it, come into conflict with those powers but, if it does, it would fall by the wayside, insofar as it did.  These include all of the sections from s49(1) to s49(9).  In particular, however, s49(5) expressly provides how appeals are to be disposed of, which is not a matter dealt with at all by s27(1).  The remedies in s49(5)(a) are unique in the Act, except for s84 which, whilst it differs to some extent, is generally similar to s49(5).

55      These powers consist of the power to uphold appeals and quash the decision appealed against and the power to suspend the operation of the decision appealed against and remit the case for further hearing and determination by the Commission.

S49(5)(b) and (c) of the Act

56      There is also a power to dismiss the appeal.  There is no restriction on that power to dismiss contained in s49(5)(a) of the Act, nor is there any implied limitation of the power, save and except by the four corners of the Act.  Thus, an appeal under s49 can, for any lawful reason, express or implied, including the sort of reasons prescribed by s27(1)(a), be dismissed without recourse to s27(1)(a).

57      The power to dismiss is, as I have said, a wide and generally untrammelled power.  Thus, an appeal could be dismissed in the public interest or because it is without merit or because it is trivial or for other good reason, as well as on the merits.  If, however, I am wrong in that view, then s49(5) of the Act does not, within the meaning of s27(1), “provide otherwise than s27(1) does”, and the powers conferred by s27(1)(a) apply in addition to the powers contained in s49(5). 

58      In any event, for much the same reasons which I have expressed in relation to s49(2a) of the Act, having regard to s26(1)(a), the appeal requires to be dismissed at this time before it is heard and determined on the merits, because it is moot, hypothetical and it is not in the public interest that it be heard and determined.  I would, if it were necessary, have dismissed the appeal under s27(1)(a) or s49(5).  However, since it does not lie, those powers would not be available to me.  If it was an appeal against a final decision and not a finding, either s27(1)(a) or, in my opinion properly, s49(5) would justify and provide the jurisdiction and power to dismiss it.

Observation

59      It might be helpful to the parties that there exists the right in a party, even during the hearing of a matter at first instance, to refer, with the consent of the President, to the Full Bench any question of law including any question of the interpretation of the rules of an organisation, arising in the matter (see s27(1)(u) of the Act).

FINALLY

60      For all of those reasons, I agreed with my colleagues to dismiss the appeal.

CHIEF COMMISSIONER A R BEECH

61      I agree that the appeal should be dismissed for the following reasons.  Firstly, the CSA submitted that the arbitrator did not correctly categorise the issue brought by it in PSAC 5.  The complete answer to that submission lies in the acknowledgement of the CSA that the proceedings before the Arbitrator are still live: the order against which the appeal was lodged did not finally dispose of PSAC 5.  Accordingly, it is open to the CSA to ask for those proceedings to be re-listed for the purpose of putting submissions to the arbitrator directed towards a characterisation of the dispute which the CSA seeks.  The dismissal of this appeal does not alter this position. 

62      I thus am unable to agree with the submission of the CSA at [48] of its written submissions that the decision of the Arbitrator “affects the ability of the CSA to obtain Interim Orders for its members in order to check abuses of process”.  The decision of the Arbitrator does not affect the ability of the CSA to apply to an Arbitrator to seek interim orders in order to check what the CSA might see as abuses of process prior to the dismissal of the employee the subject of the process; the decision of the Arbitrator relates only to the situation where an interim order of reinstatement is sought after dismissal and where the substantive matter of the dismissal is taken to the Public Service Appeal Board. 

63      Secondly, while the application to the arbitrator initially lodged by the CSA was made while Ms Ngiam was still employed, that circumstance was overtaken by her dismissal shortly after that application was lodged.  The CSA then amended the order it sought in PSAC 5 to seek an order that the Disability Services Commission be ordered to forthwith reinstate Ms Ngiam “to her substantive position within Disability Services Commission effective from 26 January 2005 pending the hearing and determination of PSAB 2 of 2005” (AB 13) (my emphasis).  Its reasons for seeking that amendment related to the procedural issues raised by the CSA in its grounds (AB 13 and 14). 

64      However, the point to be made is that the interim order sought was pending the hearing and determination of PSAB 2 of 2005.  It is conceded by the CSA that PSAB 2 of 2005 was discontinued effective from 28 June 2005.  It naturally follows, as the CSA’s submission in [43] categorically states, that the basis upon which the CSA sought the interim order it now appeals is removed.  With its removal also goes the basis for the CSA’s argument that the dispute between it and the Disability Services Commission over the interim order of reinstatement remains live.  It cannot remain live.  If any other issue relating to Ms Ngiam’s employment remains live between the CSA and the Disability Services Commission, and it is not immediately apparent to me what that might be, PSAC 5 of 2005 remains available to deal with it. 

65      Finally, I wish to add that it is clear that the CSA is a principal in its own right and not merely an agent of its members (ADSTE v. Hamersley Iron Pty Ltd (1983) 63 WAIG 1918, with the appeal at 64 WAIG 852; Registrar v. AMWSU (1990) 70 WAIG 3947 at 3950).  The fact that Ms Ngiam settled her appeal to the Public Service Appeal Board does not mean that the CSA is not able to proceed with PSAC 5 of 2005 or this appeal.  The argument it must face when it does so is, however, the precise issue raised by the Disability Service Commission in this appeal.  There is now no real dispute between the CSA and the Disability Service Commission over Ms Ngiam.

66      I agree the appeal must be dismissed.

SENIOR COMMISSIONER J F GREGOR:

67      I have had the opportunity of reading the reasons of His Honour the President.  I agree with him, for the reasons he has enunciated, that the appeal should be dismissed and I add the following comments.

68      The appeal by the Civil Service Association (CSA) complains that the Arbitrator at first instance was in error when he declined to exercise a discretion which resides in him under the powers contained in s44 (6) of the Act to refer a matter for hearing and determination.  The matter that the CSA says should have been referred was whether or not the Arbitrator should grant interim reinstatement in a case involving Ms Nancy Siew Muay Ngiam who had apparently been dismissed from service with the Respondent to this appeal.

69      The factual background shows that the dismissal became otiose because of an accommodation Ms Ngiam made with the Respondent to the appeal so that she was not dismissed.  The CSA says notwithstanding this the Arbitrator should have pressed ahead with determining the question of interim reinstatement and because he did not he was in error.  By this Appeal the CSA argues that this Full Bench should, in effect, make a declaratory judgement as to the power of the Arbitrator to deal with questions of interim reinstatement when a dispute relating to unfair dismissal previously notified to the Public Service Appeal Board is discontinued.

70      The matter before the Full Bench is clearly one which, on the authorities, falls within the category of a matter which is completed.  The charter of the Commission is to deal with practical solutions and not mere academic exercises.  The principles to be applied can gleaned from the authorities, to which the Honour has referred in detail, which hold that Courts will not decide a question that is academic or hypothetical or a dead issue except when those matters in the public interest.

71      Applying the principles relating to the formation of the public interest there is no such interest in this matter.  I respectfully agree with analysis of His Honour the President has made in that respect.

72      The other matter which is raised for consideration is the suggestion by the CSA that the power on s27 (1) is not available to be applied in the circumstances because it is displaced by the specific provisions of s49 (5) of the Act.  The Full Bench in exercise of its jurisdiction regularly invokes the range of powers which are contained in s27.  I agree with His Honour there is no substance in that argument which does not support the contentions of the CSA.  There are no grounds on which the Full Bench could reach the conclusion that there is public interest in the issues raised in this appeal and for those reasons the appeal has to be dismissed.

THE PRESIDENT:

73      For those reasons, the appeal is dismissed.

Order accordingly