WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES MURDOCH UNIVERSITY

APPELLANT

-and-

THE LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH

RESPONDENT

CORAM FULL BENCH

 THE HONOURABLE M T RITTER, ACTING PRESIDENT

 SENIOR COMMISSIONER J F GREGOR

 COMMISSIONER J H SMITH

HEARD TUESDAY, 22 NOVEMBER 2005, MONDAY, 12 DECEMBER 2005

DELIVERED MONDAY, 19 DECEMBER 2005

FILE NO. FBA 13 OF 2005

CITATION NO. 2005 WAIRC 03358

CatchWords Industrial Law (WA) - Appeal Against Finding Of A Single Commissioner - Public Interest - S78B Notices And Intervention - Jurisdiction Of Commission - Interaction Between State Laws And Certified Agreements - Meaning Of "Government Officer" - Public Service Appeal Board - Public Statutory Body - Public Authority - Public Sector Management Act 1994, s3, s5, s37(2), s52(2), s78, s78(1), s95(3) - Commonwealth of Australia Constitution Act, s109 - Judiciary Act 1903 (Cth), s78b, s78b(1) - Income Tax Assessment Act 1936, s23(D) - University of Notre Dame Act 1989, s25, s25(3)(B) - Workplace Relations Act 1996 (Cth), s152(1A), s170LZ, s170LZ(1), s170LZ(3) - Industrial Relations Act 1988 (Cth) -Financial Administration and Audit Act 1985 - Grain Marketing Act 1991 (NSW) - Murdoch University Act 1973 (WA), s3, s4(1), s4(2), s5, s6, s8, s12, s17, s17(2), s22(1), s32, s34 - Industrial Relations Act 1979 (WA) (as amended), s22A, s23A, s23A(b) s23(3)(h), s44, s44(6), s44(6)(bb), s44(6)(bb)(i) and (ii), s44(9)-(12), s44(11), s49(2a), s80C, s80C(1), s80C(1)(f) s80C(2), s80I, s80I(e), s80I(2), s80H, Division 2A to 2G of Part II, Division 2C of Part II, Division 2 of Part IIA - Murdoch University (General Staff) Enterprise Agreement 2004

Decision Appeal upheld and the orders made at first instance set aside

Appearances

Appellant  Ms C Pugsley and with her Mr J Dasey

Respondent Mr M Swinbourn

Reasons for Decision

THE ACTING PRESIDENT:

Background

1         The appellant seeks the leave of the Full Bench to appeal against an order made by the Commission on 30 September 2005.  The making of the order followed the convening of a conference purportedly under s44 of the Industrial Relations Act 1979 (WA) (as amended) (the Act).

2         That conference occurred consequent upon the filing of a notice of application by the respondent on 23 August 2005.  The respondent attached to the notice a schedule setting out the grounds on which the application was made.  The application was made because of the termination of employment of Mr David Mayger, a member of the respondent, by the appellant, on 4 August 2005.  On that date Mr Mayger was provided with a letter of termination of his employment on the basis of misconduct which was set out in the letter.  The letter stated that Mr Mayger’s “employment is terminated with effect from the date of this letter, and in accordance with Clause 18.1 of the Murdoch University General Staff Agreement 2005 [sic] the University will pay you 5 weeks salary in lieu of notice”.

3         The schedule to the notice of application asserted Mr Mayger’s dismissal was “unfair, harsh or oppressive” and sought an interim order that Mr Mayger be “returned to his former position pending the resolution” of a claim for reinstatement.

4         The Commission convened a conference on 1 September 2005 for the purpose of conciliating between the parties.  At the conclusion of the conference the parties remained in dispute over Mr Mayger’s termination and the respondent continued to seek an interim reinstatement order pending the hearing and determination of the application.

5         At the conciliation conference, the appellant argued the Commission lacked jurisdiction to deal with the application.  It did so on two grounds.  The first was that Mr Mayger was employed pursuant to the Murdoch University (General Staff) Enterprise Agreement 2004, a certified agreement registered in the Australian Industrial Relations Commission.  The second ground argued that because Mr Mayger was a “Government officer” within the meaning of the Act, the Commission, as constituted, did not have jurisdiction to deal with the application.  These grounds will be elaborated upon later in these reasons.

6         The parties provided written submissions on the issue of jurisdiction and whether, if the Commission had jurisdiction, it should grant the interim order sought by the respondent.

7         On 29 September 2005 the Commission issued an order.  The order contained a preamble which amongst other things set out that the Commission had jurisdiction.  The substantive order required Mr Mayger to be reinstated on an interim basis to his former position with the appellant, undertaking the same duties as those he was undertaking prior to his termination.

8         On 30 September 2005 a correction order was issued.  The purpose of this order was to include in the formal orders made, an order that the Commission had jurisdiction to deal with the application.

9         On 30 September 2005 the appellant filed a notice of appeal against the order which had been made by the Commission on 29 September 2005.  A schedule to the notice of appeal set out the grounds of appeal.

10      Following the publication of the correction order on 30 September 2005, the appellant filed a substituted schedule which was essentially in the same terms as the schedule previously filed, except that it referred to the corrected order as made by the Commission.

Grounds of Appeal

11      The grounds of appeal set out in the substituted schedule to the notice of appeal are as follows:-

“1. The Commissioner erred in law in finding that she had jurisdiction to consider the Application in matter C 152 of 2005 (“the Application”) and therefore to grant interim orders.

PARTICULARS

(a) The Commissioner erred in law in not finding that section 17OLZ of the Workplace Relations Act 1996 operated to exclude the jurisdiction of the Commission in relation to the Application.  Mr Mayger was employed pursuant to a federally registered certified agreement, which contained clauses relating to termination of employment and did not expressly preserve the right of an employee to seek remedies in the State Commission: rather, it provided for disputes to be resolved in the Australian Industrial Relations Commission.  In these circumstances, the Commission should have adopted the reasoning in Metropolitan Perth Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 and Martindale V British Petroleum (Kwinana) Pty Ltd (1992) 72 WAIG 1263, and City of Mandurah v Hull [2000] WASCA 216.

(b) The Commissioner erred in law in not finding that the Commission as constituted lacked jurisdiction to deal with the Application because the employee Mr Mayger was a “government officer” within the meaning of the IR Act, and that therefore an exclusive jurisdiction resides with the Public Service Appeal Board in respect of the termination of his employment.  Had the Commission adopted the reasoning in Pauline Christine Tremain v King Edward Memorial Hospital for Women (1992) 72 WAIG 2078, Ronald Thomas Bellamy v Chairman, Public Service Board (1986) 66 WAIG 1579, Li Liu v Public Transport Authority of Government of Western Australia 2005 WAIRC 01312 and Murdoch University v Civil Service Association of Western Australia (Inc) (1989) 69 WAIG 547, it would have found that it lacked jurisdiction.

(c) It is in the public interest that the Full Bench should give leave for this appeal to proceed. It is in the public interest generally that the Commission should operate within its jurisdiction, and in this matter in particular, it is in the public interest that the question of jurisdiction be determined prior to the parties being required to run their full case at arbitration.  The issues of jurisdiction are legal questions which can be determined without the requirement for all the facts of the case to be ventilated at a substantive hearing.  It is not in the public interest that the parties be put to the expense of a full hearing in circumstances in which it is unclear whether the Commission has jurisdiction to hear the matter.  Further, in the event that the Commission is found to lack jurisdiction, it is not in the public interest that the parties be required to run the case a second time in the appropriate jurisdiction.

2. The Commissioner erred in law in that she failed to comply with the requirements of section 44(11) of the IR Act.

PARTICULARS

(a) At the conclusion of a compulsory conference in relation to the matter, held on 1 September 2005, the parties were asked, in accordance with section 44(11) of the IR Act, whether they objected to the Commission being constituted for the purpose of hearing and determining the matter by the Commissioner who had presided over the conference.  Although the Appellant did not raise such an objection at the conclusion of the conference, it did so in writing shortly thereafter.  The Commissioner responded that, as the Appellant had not raised the objection when given the opportunity to do so at the conference, she would continue to hear and determine the Application.  In these circumstances, sections 44(11)(a) and 44(11)(b) of the IR Act have not been complied with.  It is in the public interest that the requirements of the IR Act be complied with.

3. Further, or in the alternative, if the Commissioner had jurisdiction to consider the Application, she failed in the proper exercise of her discretion in the terms on which the interim order was made.

PARTICULARS

(a) The Order requires the reinstatement, on an interim basis, of Mr Mayger “to his former position ... undertaking the same duties as he was undertaking prior to his termination.  It is an agreed fact that Mr Mayger has admitted taking property belonging to his former employer.  In these circumstances it was not reasonable to require the Applicant to reinstate him to his previous position, being a supervisory position in a security environment.

(b) Compliance with the Order may prejudice the Applicant’s position at arbitration, and operate to prevent the Applicant from having a just hearing, in that the substantive reason for termination of Mr Maygers employment was the Applicant’s loss of trust and confidence in Mr Maygers ability to perform his duties following his admission that he had taken property belonging to his employer.

(c) It is submitted that the Commissioner’s error in exercising her discretion was of the kind contemplated in House v The King (1936) 55 CLR 499 at 504.”

Leave to Appeal

12      The appellant accepted that the order made by the Commission was a “finding” as defined in s7 of the Act.  This was because the order did not finally dispose of the matter before the Commission at first instance.  Accordingly, the appellant also accepted that s49(2a) of the Act applied to the appeal.  This subsection provides that an appeal does not lie 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.  The subsection focuses the attention of the Full Bench upon “the matter”.  It seems that a determination is to be made as to whether the matter, as opposed to individual appeal grounds, is of such importance that, in the public interest, an appeal should lie.  Accordingly, it seems that the Full Bench may not form the opinion that an appeal should lie on only some of the grounds.

13      In RRIA v AMWSU and Others (1989) 69 WAIG 1873, the Full Bench at 1879 said that the words “public interest” in s49(2a) of the Act should not be narrowed to mean “special or extraordinary circumstances”.  As stated by the Full Bench, an application may involve circumstances which are neither special nor extraordinary but which are, because of their very generality, of great importance in the public interest.  The Full Bench, on the same page, went on to say that important questions with likely repercussions in other industries and substantial matters of law affecting jurisdiction can give rise to matters of sufficient importance in the public interest to justify an appeal.  The RRIA decision was cited with approval and applied in the recent Full Bench decision of CSA v Shean (2005) 85 WAIG 2993 at 2995-2997.

14      The forming of the opinion referred to in s49(2a) of the Act involves a value judgment and is clearly a matter which the Full Bench needs to assess on a case by case basis, having regard to the issues which the proposed appeal will give rise to.

15      In my opinion, the issues raised by ground 1 of this appeal are of sufficient importance to lead to the conclusion that an appeal should lie under s49(2a) of the Act with respect to this matter.  This is because this ground raises important questions of law and jurisdiction affecting the Commission.

S78B Notices and Intervention

16      Due to the contents of ground 1(a) of the appeal, the appellant gave notice to the Attorneys General of the Commonwealth and each of the States in purported compliance with s78B of the Judiciary Act 1903 (Cth).  This was done on 16 November 2005, some six days before the hearing date scheduled for the appeal.

17      As at the morning of the hearing of the appeal, replies had been received by the appellant on behalf of the Attorneys General of the Commonwealth, New South Wales, Victoria and South Australia advising that they did not intend to intervene in the appeal.  At that point no reply had been received from the Attorney General of Western Australia.  The Full Bench was concerned that no reply had been received and requested the agent for the appellant to telephone the appropriate officer to ascertain whether the s78B notice had been received, and, if so, the intentions of the Attorney General.  The Full Bench adjourned for a short time to allow this to occur.

18      Upon resumption, the appellant’s agent advised that she had spoken to a solicitor in the State Solicitor’s Office of Western Australia who had confirmed receipt of the s78B notice and that the State of Western Australia did not intend to intervene in the appeal.  On that basis, the Full Bench decided that it had discharged its duty under s78B(1) of the Judiciary Act and the appeal could proceed accordingly.

19      The appellant’s agent then proceeded to make her oral submissions in support of the application for leave to appeal and the appeal itself, if leave were granted.  At the conclusion of her submissions, there was a short adjournment.  During this adjournment, it was brought to the attention of the Full Bench that the State Solicitor’s Office had sent a letter to the appellant’s agent, care of the facsimile number of the President’s Chambers, that morning, in relation to the s78B notice.  Contrary to the information provided to the Full Bench earlier that day, the letter indicated that the State had not as yet made a decision on whether to seek to intervene.  The letter indicated the State’s view that the notice purportedly provided under s78B of the Judiciary Act was not given in sufficient time and with sufficient details to enable the State to make such a decision.  This letter was brought to the attention of the agents for both parties.  Upon resumption of the hearing, on the basis of the letter, the Full Bench decided that it could not continue to hear the appeal on ground 1(a).

20      The Full Bench made orders to the effect that the appellant should serve upon the Western Australian State Solicitor’s Office a copy of the notice of appeal and the written submissions filed by both the appellant and the respondent and request that the State inform the Full Bench as to whether it wished to intervene.  Following receipt of this information, the Full Bench would then reconvene to hear the submissions of the respondent on ground 1(a) and the submissions of the State of Western Australia if it sought and was granted leave to intervene.

21      The Full Bench then proceeded to hear the submissions of the respondent upon each of the grounds other than ground 1(a).

22      The hearing of the appeal was then adjourned sine die.

23      On 28 November 2005, the Full Bench were advised, by letter from the State Solicitor’s Office, that the State of Western Australia did not wish to intervene in the appeal.  Steps were then taken to relist the appeal for hearing.

Ground 1(a)

24      This ground asserts the Commissioner erred in law in not finding that s170LZ of the Workplace Relations Act 1996 (Cth) (the WR Act) operated to exclude the jurisdiction of the Commission in relation to the application.  The ground relied upon s109 of the Constitution.

25      Relevantly, s170LZ of the WR Act sets out the effect of a certified agreement upon State laws.  As set out earlier, Mr Mayger’s employment with the appellant was governed by the Murdoch University (General Staff) Enterprise Agreement 2004.  It is common ground that this is a “certified agreement” for the purposes of the WR Act.

26      A certified agreement is not a “law of the Commonwealth” within s109 of the Constitution.  Any “inconsistency” within the meaning of the section therefore is an inconsistency between the jurisdiction provided by the Act and “the provisions of the Workplace Relations Act 1996 which authorise the making and certification of agreements and give effect to the terms of such agreements”.  (Gant v Multigroup Distribution Services Pty Ltd [2004] QIC 62).  It is in this context that s170LZ of the WR Act is critical.

27      S170LZ of the WR Act is as follows:-

“Effect of a certified agreement on Commonwealth laws or State laws, awards or agreements

(1) Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.

(2) Provisions in a certified agreement that deal with the following matters operate subject to the provisions of a State law that deals with the matter:

(a) occupational health and safety;

(b) workers’ compensation;

(c) apprenticeship;

(d) any other matter prescribed by the regulations.

(3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide that protection, so far as those provisions are able to operate concurrently with the certified agreement.

(4) To the extent of any inconsistency, a certified agreement displaces prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.

(5) In this section:

Commonwealth law means an Act or any regulations or other instrument made under an Act.

prescribed conditions means conditions that are identified by the regulations.

State law means a law of a State or Territory (including any regulations or other instrument made under a law of a State or Territory), but does not include a State award or a State employment agreement.”

28      The jurisdiction of the Commission which the respondent sought to invoke for the benefit of Mr Mayger satisfies the description of being a State law providing protection for an employee against harsh, unjust or unreasonable termination of employment.  Accordingly, s170LZ(3) of the WR Act provides that s170LZ(1) is not intended to effect the provisions of that law, “so far as those provisions are able to operate concurrently with the certified agreement”.  Therefore, the question as to whether the Commission had jurisdiction, despite the presence of the certified agreement, devolves into a question as to whether the two “are able to operate concurrently”.

29      In City of Mandurah v Hull (2000) 100 IR 406, the Industrial Appeal Court considered the question of whether a federal award ousted the jurisdiction of the Commission pursuant to the contents of the WR Act and s109 of the Constitution.  In considering this question, the court had regard to the then s152(1A) of the WR Act.  At the material time, this subsection was in identical terms to the present s170LZ(3) of the WR Act, save that the words “certified agreement” at the end of s170LZ(3) were replaced with the word “award” in s152(1A) of the same Act.

30      Anderson J, with whom Kennedy J agreed, said at paragraph [26]:-

“Subsection (1A) is a clear expression of legislative intent that federal awards are not to be an exhaustive statement of the rights and obligations of the parties with respect to unfair dismissal. I see no reason why that statement of intent should not be given full effect. The result is that there can be no indirect inconsistency between the federal award and the State law on the ‘‘cover the field’’ test. The State law will be effective except to the extent that it cannot operate concurrently with the award, ie, for present purposes, except to the extent that there is a direct inconsistency or collision between them.”

31      In my opinion, the same applies with respect to s170LZ(3) and the interaction between certified agreements and the State laws in question which give unfair dismissal jurisdiction to the Commission.  (The expression “unfair dismissal” is used in these reasons for convenience, although the Act refers to harsh, oppressive or unfair dismissals).

32      Similarly to Anderson J in City of Mandurah, therefore, I do not consider that the Commonwealth laws, constituted by the WR Act which gives parties the authority to make binding certified agreements, covers the field in the relevant sense (see Ex parte McLean (1930) 43 CLR 472 at 483 and Metal Trades Industry Association of Australia and Others v The AMWSU and Others (1983) 152 CLR 632 at 648).

33      As stated by Anderson J in City of Mandurah at paragraph [27], however, it remains to be considered whether there is a direct inconsistency or collision between (in this case) the provisions of the certified agreement and sections 44 and 23A of the Act, such that they cannot operate concurrently.

34      I refer to s23A of the Act in this context, even though the application to the Commission was made pursuant to s44 of the Act, because s23(3)(h) of the Act provides:-

“(3) The Commission in the exercise of the jurisdiction conferred on it by this Part shall not — 

…

(h) on a claim of harsh, oppressive or unfair dismissal —

(i) in the case of an application under section 44, make any order except an order that is authorised by section 23A or 44; and

(ii) in any other case, make any order except an order that is authorised by section 23A.”

35      The clauses of the certified agreement which the parties identified as being relevant to the issue of whether there is inconsistency with the Act were clauses 12, 13 and 18.  I will set these out in full below:-

“12. Grievance Resolution

12.1 Definitions

Grievance shall mean any type of problem, concern or complaint related to work, workload or the work environment.  A grievance can be about any act, behaviour, omission, situation or decision, which the employee perceives to be unfair or unjustified.

A grievance raised by an employee should be dealt with locally, speedily and confidentially in the interest of all parties.  The aggrieved employee should in the first instance attempt to resolve the grievance with their supervisor, or where the grievance involves the immediate supervisor, the supervisor's immediate superior should be informed.

Where an attempt at local resolution of the grievance has failed or where the circumstances make resolution impracticable, the employee may request a meeting with a Human Resources representative, along with a representative of their choosing, and/or the party to the grievance.

If the matter cannot be resolved at this level, the employee or the relevant Union representative or the University representative may within five (5) days or as otherwise agreed, arrange a conference of the parties to discuss the matter further.

If the matter continues to remain unresolved it may then be notified to the relevant statutory tribunal for conciliation or adjudication on the merits.  The parties reserve the right to make whatever submissions or call whatever evidence they wish to the tribunal.

Provided that the provisions of this clause shall not apply to grievances or other matters covered under Anti-discrimination legislation.

13. Dispute Settlement

13.1 Application

This clause establishes a process to deal with disputes about matters arising under this Agreement for which there are no appeals process specified in this Agreement;

13.2 Principles

13.2.1 Any party or employee subject to this agreement has the right to invoke these procedures.

13.2.2 It is the intent of this clause to attempt to resolve issues between the parties quickly and as close as possible to the source of the grievance/dispute.  As such all parties to the grievance/dispute must co-operate to deal with the matter expeditiously.

13.2.3 Where the Union is not the initiating party, the employee will have the right to be represented as they so choose, including by a Union.

13.2.4 While these procedures are taking place existing work arrangements and existing conditions of employment shall continue unless the issues involve Occupational Safety and Health matters which may require existing work arrangements to be altered.

13.3 Procedure

13.3.1 As soon as practicable after the matter has arisen it shall be jointly considered by the employee and her or his supervisor.

13.3.2 If the matter is unresolved the employee and/or a representative of the employee shall take the matter up with an appropriate representative of management

13.3.3 Where a dispute remains unresolved, at the request of either party a Disputes Committee shall be convened within 5 working days, unless agreed otherwise.

The Disputes Committee shall consist of:

• One nominee of the University;

• One nominee of the Union(s); and

• One independent Chair agreed between the parties

Either party may object once to either party’ nominee on the grounds of conflict of interest.

The Disputes Committee shall attempt to resolve the matter within 5 working days of its first meeting.

Any resolution, decision or recommendation of the Disputes Committee shall be in the form of a written agreement subject, if necessary to ratification by either party.

13.3.4 Until the procedures described in subclause 13.3.3 have been exhausted:

(a) work shall continue in the normal manner;

(b) no industrial action shall be taken by the University or the Union(s);

(c) the University shall not change work, staffing or the organisation of work if such is the subject of the dispute, nor take any action likely to exacerbate the dispute.

13.3.5 If the dispute/grievance remains unresolved then either party may refer the matter to the AIRC for conciliation and if necessary arbitration.

18. Notice Of Termination

18.1 Full and Part Time Employees

(a) Except as provided in this clause, an employee’s contract of service may be terminated by either party giving 4 weeks’ notice in writing or by the payment or forfeiture, as the case may be, of 4 weeks’ salary.

(b) If the employee is over 45 years old and has more than 2 years’ continuous service with the University, the University must provide an additional week’s notice.

18.2 Probationary Employees

During the probationary period, an employee’s contract of service may be terminated by either party giving 2 weeks’ notice in writing or by the payment or forfeiture, as the case may be, of 2 weeks’ salary.

18.3 Casual Employees

The contract of service of a casual employee may be terminated by the giving of one hour’s notice by either party, or by the payment or forfeiture, as the case may be, of one hour’s salary.

18.4 Fixed Term Employees

(a) The contract of service of a fixed term employee engaged on or after the commencement of this Agreement may be terminated within the fixed term by either party in accordance with subclause 18.1 or 18.2.

(b) The contract of service of a fixed term employee engaged before the commencement of this Agreement may be terminated within the fixed term:

(i) by the employee in accordance with subclause 18.1; or

(ii) by either party in accordance with subclause 18.2.

(c) If within the fixed term, the University terminates the contract of service of a fixed term employee in circumstances that would, if the contract had simply expired and not been renewed, have entitled the employee to severance pay under the HECE Award, the employee shall be entitled to severance pay, in accordance with the HECE Award, based on the period of continuous service.

18.5 The University may dismiss an employee, including a fixed term employee, without notice for serious misconduct which justifies instant dismissal.

18.6 An employee, other than a casual employee, whose contract of service is terminated shall be advised in writing of the reasons.”

36      I earlier set out that the letter which informed Mr Mayger of his termination of employment said that this was in accordance with clause 18.1 of the certified agreement.

37      In my opinion, clause 12 of the certified agreement did not apply to Mr Mayger’s termination of employment.  This is because it provides for a grievance being able to be raised “by an employee”.  Following the termination of his employment, Mr Mayger was not an employee of the appellant, but was a former employee.  I do not think clause 12 of the certified agreement applies to former employees.  This construction of the grievance resolution clause is consistent with the balance of the clause which seems to have in mind a current rather than a former employee.

38      For similar reasons, I do not think that the dispute settlement clause, clause 13 of the certified agreement, applied to the termination of Mr Mayger’s employment.  This opinion is enhanced by clause 13.3.4 which refers to what is to occur until the procedures described in clause 13.3.3 have been exhausted.  It refers, for example, to work continuing in the normal manner.  This is not consistent, in my opinion, with a dispute settlement clause which is intended to cover a situation where employment has been terminated.

39      There is no other clause of the certified agreement which provides for grievance resolution or dispute settlement with respect to the termination of employment of an employee, whether allegedly unfair or otherwise.

40      Clause 18 of the certified agreement did and was applied to the termination of employment of Mr Mayger.  He was provided with notice of termination in accordance with clause 18.1 of the certified agreement.  It is noted that clause 18.5 provides for dismissal without notice for serious misconduct which justifies instant dismissal.  In this instance, despite the fact that there was an allegation of misconduct against Mr Mayger, the appellant did not purport to rely on clause 18.5 of the certified agreement or terminate Mr Mayger’s employment without notice or payment in lieu of notice.

41      In my opinion, the certified agreement and the Act, with respect to its unfair dismissal jurisdiction, are “able to operate concurrently”.  This is because the certified agreement deals with the procedures for terminating employment and relevant notice periods, whereas the Act provides discretionary remedies for unfair dismissals.  With respect to the termination of employment, the certified agreement and the Act deal with different topics.  The certified agreement in clause 18 deals with the legal constraints and boundaries involved in terminating employment.  This is not, or at least not always, the same thing as delineating the boundaries of what is or is not an unfair dismissal.

42      Clause 18 of the certified agreement marks out the legal parameters within which termination of employment is to be affected.  It does not mark the boundaries of whether a dismissal is unfair or not.  A lawful dismissal is not necessarily fair; and on the contrary a dismissal which is not effected in accordance with a contract of employment, award or certified agreement, is not, by that reason alone, always and necessarily unfair (see, for example, Gordon v Q-Vis Ltd (2001) 81 WAIG 1651 at [54]-[55].)

43      The appellant sought to rely upon the decisions of Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611 and Martindale v British Petroleum Refinery (Kwinana) Pty Ltd (1992) 72 WAIG 1263.  In both of these cases, the Industrial Appeal Court held that a federal award covered the relevant field and excluded the jurisdiction of the Commission with respect to a claim of unfair dismissal.  The appellant pointed out that in both Gersdorf and Martindale, the federal award contained a clause providing for the termination of employment upon a week’s notice.  It was submitted that the notice provisions of clause 18 of the certified agreement were relevantly similar and that by application of the principles underlying the Gersdorf and Martindale decisions, the Full Bench should find that the Commission did not retain its unfair dismissal jurisdiction in this appeal.  The appellant also referred to the citation by McKechnie J in City of Mandurah at paragraph [76] of both Gersdorf and Martindale as examples of cases where federal awards had evinced an intention to cover the field in relation to unfair dismissal.

44      It was also argued by the appellant that unless, similar to City of Mandurah, the present certified agreement expressly preserved an employee’s right to make a claim pursuant to the Act with respect to an unfair dismissal, the Commission lacked jurisdiction.  I will deal with this last point first.  I do not think that City of Mandurah stands for the proposition that unless a term of a federal award or certified agreement contains a clause which explicitly sets out an entitlement to bring an unfair dismissal claim to the Commission, there is a direct collision between the certified agreement and the Act.  The presence of the clause in City of Mandurah was simply an indication that the rights under the federal award were cumulative upon the rights under the State law (see Anderson J at paragraph [28]).

45      I also do not accept the argument that the reasoning of the Industrial Appeal Court in Gersdorf and/or Martindale, compels the conclusion that the Commission did not have jurisdiction.  This is for a number of reasons.

46      Firstly, the issues which the court were dealt with in those decisions were not identical to the present issue, which is mandated by the wording of s170LZ(3) of the WR Act.  That is an issue of whether the certified agreement and the State law giving the Commission jurisdiction “are able to operate concurrently”.

47      Secondly, the jurisdiction which the Commission exercised in 1981 and 1992 respectively, when Gersdorf and Martindale were decided, is different to now.  In particular, the Commission now has jurisdiction under s23A(6) of the Act to award compensation for loss or injury caused by an unfair dismissal.  The presence of this, albeit qualified, jurisdiction undermines the prospect that there could be an “interminable series” of terminations and reinstatement orders, as referred to by Bray CJ in The Queen v The Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (1975) 10 SASR 582 at 590, which was quoted in both Gersdorf and Martindale as being a reason for inconsistency between the federal award and State unfair dismissal legislation.

48      Thirdly, in the present appeal, as in the award in Martindale, the certified agreement does not deal with the consequences of an unfair dismissal.  In Martindale Ipp J dealt with that issue in the following way:-

“It was submitted by counsel for the appellant that the omission in cl 5 to deal with the rights of an employee who is “unfairly” dismissed indicates that the clause is not an exclusive code.  He also submitted that, properly construed, cl 5 deals only with procedural matters and does not create substantive rights.

In my view the fact that cl 5 does not deal with a termination of employment that might be “unfair”, but which is otherwise covered by the provisions of the clause, is simply an indication that the parties to the Award intended that an employee should have no rights following on such a termination or dismissal, other than those recorded in the clause.”

49      In this appeal I am not prepared to assume or find that the parties to the certified agreement intended that a dismissed employee could not have recourse to the unfair dismissal jurisdiction of the Commission on the basis that the prospect of so doing was not explicitly mentioned in the certified agreement.  I do not think that it is safe to make this assumption about the parties to a certified agreement made in December 2004, given the well known jurisdiction of the Commission with respect to unfair dismissals.  In my opinion, something more than silence is needed to demonstrate that the parties agreed that an allegedly unfairly dismissed employee could have no recourse to the jurisdiction of the Commission.

50      In my opinion, the exercise by the Commission of its unfair dismissal jurisdiction would not impair any rights held by the appellant under the certified agreement (see Victoria v The Commonwealth (1937) 58 CLR 618 at 630.)  This is because the agreement does not expressly, or in my opinion impliedly, contain any clause which permits the “unfair dismissal” of an employee; or provides that an employee so dismissed does not have access to the jurisdiction of the Commission.

51      I would not uphold this ground of appeal.

Ground 1(b)

52      This ground asserts that the Commission as constituted did not have jurisdiction to deal with the application because Mr Mayger was a government officer within the meaning of the Act and that therefore the Public Service Appeal Board as constituted under the Act had exclusive jurisdiction with respect to the termination of his employment.

53      The application made to the Commission at first instance was an application to convene a conference under s44 of the Act.  In making the order on 30 September 2005, the Commission purported to act pursuant to s44(6) of the Act, and, in particular, ss44(6)(bb)(i) and (ii).  By its terms, the power to make orders under s44(6)(bb) of the Act is predicated upon there being an “industrial matter” before the Commission.

54      S22A of the Act provides that:-

“In this Division and Divisions 2A to 2G — 

“Commission” means the Commission constituted otherwise than as a constituent authority;

“industrial matter” does not include a matter in respect of which, subject to Division 3, a constituent authority has exclusive jurisdiction under this Act.”

55      The reference to “this Division and Divisions 2A to 2G” in s22A is a reference to Division 2 and Divisions 2A to 2G of Part II of the Act.  S44 of the Act is contained in Division 2C of Part II of the Act.  Accordingly, if a constituent authority of the Commission has exclusive jurisdiction with respect to a matter then it is not an industrial matter for the purposes of s44 of the Act and the Commission does not have jurisdiction to make an order under that section.

56      As stated above, the appellant argued that this was the situation in this case because the Public Service Appeal Board had exclusive jurisdiction to deal with remedies consequent upon the termination of Mr Mayger’s employment.

57      The expression “constituent authority” is defined in s7 of the Act to mean the Public Service Arbitrator, a Public Service Appeal Board, or the Railways Classification Board, established or appointed under Part IIA of the Act.

58      The Public Service Appeal Board is a constituent authority established by s80H of the Act, which is within Part IIA of the Act.

59      S80I of the Act sets out the jurisdiction of the Public Service Appeal Board.  Relevantly, s80I(1)(e) provides that the Board has jurisdiction to hear and determine:-

“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 …”

60      The appellant argued that this applied to Mr Mayger as a government officer.

61      S80I(1)(e) refers to an appeal other than an appeal under s78(1) of the Public Sector Management Act 1994 (the PSM Act).  An appeal under that subsection may be made, in certain circumstances, by an “employee”.  The term “employee” is defined in s3 of the PSM Act to mean a “person employed in the Public Sector by or under an employing authority”.  The expression, “Public Sector” is defined in s3 of the PSM Act to mean all:-

“(a) the agencies;

(b) the ministerial offices; and

(c) the non‑SES organisations;”

62      “Agency” is defined in s3 of the PSM Act to mean a “department” or “SES organisation”.  A “department” means a “department established under section 35” of the PSM Act (s3).  The appellant is not such an entity.  An “SES organisation” is also defined by s3 of the PSM Act.  One of the criteria of an SES organisation is that it is specified in column 2 of Schedule 2 of the PSM Act.  The appellant is not so specified.  The appellant therefore is not an “agency”.

63      It is also not a ministerial office.  Finally it is not a “non-SES organisation”.  This is because entities specified in column 2 of Schedule 1 of the PSM Act are excluded from being a “non-SES organisation”, as defined in s3 of the PSM Act.  The appellant is so specified.  Due to the above, the appellant is not part of the “Public Sector”.

64      The appellant is also not an “employing authority”, as defined in s5 of the PSM Act.  Mr Mayger therefore is not an “employee” as defined in s3 of the PSM Act and accordingly, on that basis alone, does not have a right to appeal under s78(1) of that Act.  The first criteria of s80I(1)(e) of the Act is therefore satisfied.

65      S80I(1)(e) applies to appeals by a government officer who occupies a position that carries a salary lower than the prescribed salary from a decision of their employer that they be dismissed.  It may be inferred that Mr Mayger had a salary less than the “prescribed salary” (see the definition in s80I(2) of the Act).  The question then is whether Mr Mayger was a government officer.

66      A “Government officer” is defined in s80C for the purposes of Division 2 of Part IIA of the Act “unless the contrary intention appears”.  No such contrary intention appears in or for s80I of the Act.  The definition contained in s80C(1) of “Government officer” is as follows:-

““Government officer” means — 

(a) every public service officer;

(aa) each member of the Governor’s Establishment within the meaning of the Governor’s Establishment Act 1992;

(ab) each member of a department of the staff of Parliament referred to in, and each electorate officer within the meaning of, the Parliamentary and Electorate Staff (Employment) Act 1992;

(b) every other person employed on the salaried staff of a public authority; and

(c) any person not referred to in paragraph (a) or (b) who would have been a Government officer within the meaning of section 96 of this Act as enacted before the coming into operation of section 58 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984 1,

but does not include — 

(d) any teacher;

(e) any railway officer as defined in section 80M; or

(f) any member of the academic staff of a post‑secondary education institution;

“teacher” includes —

(a) any person employed as a member of the teaching staff under section 235(1)(b) of the School Education Act 1999;

(b) any person who is a member of the teaching staff or another person appointed under section 236(2) and who is employed at a community kindergarten registered under Part 5 of the School Education Act 1999,

but does not include any public service officer, whether or not that public service officer holds or acts in a position in respect of which a teaching academic qualification is required.”

67      S80C(2) of the Act provides:-

“This Division shall be read in conjunction with the Public Sector Management Act 1994.”

68      The appellant contended that Mr Mayger came within paragraph (b) of the definition of a “Government officer” in that he was employed on “the salaried staff of a public authority”.  The appellant submitted that Mr Mayger was employed on its salaried staff.  It was asserted that Mr Mayger was classified and paid in accordance with clause 41, Schedule A and Schedule D of the Murdoch University (General Staff) Enterprise Agreement 2004.  It seems that no issue was taken before the Commission at first instance as to this point, by the respondent.

69      There is no definition in the Act of what is meant by the expression “salaried staff”.  Commissioner Smith in Li Liu v Public Transport Authority of the Government of Western Australia [2005] WAIRC 01312 at [7]-[10] gave some consideration to this issue.

70      At the hearing of the appeal, albeit with some diffidence, the respondent’s agent accepted that Mr Mayger was a salaried officer for the purposes of s80I of the Act.

71      The expression “public authority” is defined in s7 of the Act as follows:-

““public authority” means the Governor in Executive Council, any Minister of the Crown in right of the State, the President of the Legislative Council or the Speaker of the Legislative Assembly or the President of the Legislative Council and the Speaker of the Legislative Assembly, acting jointly, as the case requires, under the Parliamentary and Electorate Staff (Employment) Act 1992, the Governor or his or her delegate under the Governor’s Establishment Act 1992, State Government department, State trading concern, State instrumentality, State agency, or any public statutory body, corporate or unincorporate, established under a written law but does not include a local government or regional local government;”

72      The appellant argued that it was a “public statutory body, corporate or unincorporated, established under a written law”.

73      The appellant is established by s4(1) of the Murdoch University Act 1973 (WA) (the Murdoch University Act).  S4(2) of that Act provides that the appellant is to be a body corporate.  This does not of itself however establish that the appellant is a “public statutory body”.

74      In Murdoch University v CSA (1989) 69 WAIG 547, an award variation application, the Commission said that salaried officers of the appellant were defined as government officers for the purposes of the Act.  There was, however, no discussion of the issue and the case is therefore of limited assistance.

75      The Commission at first instance rejected the argument that Mr Mayger was a “Government officer”.  In her reasons for decision, the Commissioner set out the submissions of both of the parties.  At paragraph [25] of her reasons, the Commissioner set out the terms of s80C(2) of the Act.  The Commissioner then referred to the PSM Act and concluded her reasons on this issue as follows:-

“The PSM Act defines Public Sector Body as an agency, ministerial office or non-SES organisation.  Non-SES Organisations are defined in part as follows:

“ … and which neither is nor includes — 

(c) an SES organisation; or

(d) an entity specified in column 2 of Schedule 1;”

Column 2 Schedule 1 of the PSM Act deems that the respondent is not an organisation for the purposes of the PSM Act.  As a result I find that the respondent and therefore its employees are expressly excluded from the operation of Part IIA, Division 2 of the Act by virtue of the respondent’s exclusion under Column 2 Schedule 1 of the PSM Act.  As I have found that the respondent is excluded from the operation of Part IIA, Division 2 of the Act I find that the respondent’s employees including Mr Mayger are not government officers and are therefore unable to lodge an appeal to the Board claiming that he or she has been unfairly terminated.”

76      With respect, in my opinion, this reasoning by the Commissioner is erroneous.

77      S80C(2) of the Act does not have the effect that employees of those entities which are not part of the public sector as defined in the PSM Act are excluded from the operation of the Part IIA, Division 2 of the Act.  In its terms, s80C(2) does clearly not state this.  It simply says that the Division is to be read in conjunction with the PSM Act.

78      In my opinion, the reason for the inclusion of s80C(2) in the Act is because the PSM Act also provides remedies for people who are subject to decisions taken under that Act.  These remedies include, in some instances, rights of appeal to the Commission, subject to some exclusions (see, for example, ss37(2), 52(2), 78 and 95(3) of the PSM Act, and note the definition of “Industrial Commission” in s3 of the PSM Act).

79      The inclusion of s80C(2) into the Act does not affect the definition of “Government officer” contained in s80C(1), nor what is a public authority, as defined in s7 of the Act.

80      Accordingly, in deciding that s80C(2) did have this affect, in my opinion the Commissioner erred in law.

81      This does not necessarily mean that the appellant is a public statutory body, as referred to in the definition of “public authority” in s7 of the Act.  It is to this issue that I now turn.

82      I earlier set out in full the definition of a “Government officer” in s80C(1) of the Act.  It is noted that the definition provides that a government officer does not include “any member of the academic staff of a post‑secondary education institution”.  S7 of the Act defines “post‑ secondary education institution” to mean an institution or part of an institution established or continued by or under a number of named Acts, including the Murdoch University Act.

83      The fact that the legislature thought it necessary to specifically exclude members of the academic staff of the appellant from the definition of a government officer, strongly suggests that the legislature’s view was that, absent this exclusion, the salaried academic staff members of the appellant would be government officers; on the basis of being on the staff of a public authority.  If this were not so, there would be no need to specifically exclude such employees from the definition of a government officer.  It follows therefore that the legislative intention appears to be that the appellant is a public authority.

84      As set out earlier, the appellant contends it is a public statutory body and therefore a “public authority” as defined in s7 of the Act.

85      The expressions “public statutory body”, “public body” and “public authority” are expressions which are common to revenue and other statutes of the Commonwealth and States of Australia.  Although it is not always productive to look at discussions of the meaning of similar expressions in different statutory settings, in my opinion it is so in this instance.

86      In Melbourne City Council v State Superannuation Board of Victoria (1992) 77 LGRA 245, the Full Court of the Supreme Court of Victoria considered the expression “public statutory body which is constituted under the law of Victoria”, in the Local Government Act 1958 (Vic).  Brooking J, with whom Fullagar J agreed said that:-

“In my opinion the phrase means a statutory body constituted under the law of Victoria to perform public functions.”

87      In Federal Commissioner of Taxation v Bank of Western Australia Ltd (1995) 133 ALR 599, the Full Court of the Federal Court considered the expression “authority” as contained in a schedule to the Sales Tax (Exemptions and Classifications) Act 1992 (Cth).  Hill J, with whom Wilcox J agreed, at page 616 said that the meaning of the word “authority” in the context in which it was being considered was substantially the same as the expression “public authority”.  His Honour then reviewed a number of cases in which these expressions were considered.  At page 618 Hill J collected a number of propositions derived from the cases.  Relevantly, for present purposes, His Honour said at (7) that:-

“At least where the question is whether a body is a “public authority” the body must exercise control power or command for the public advantage or execute a function in the public interest …”

88      In Re Anti-Cancer Council of Victoria and Others; Ex parte The State Public Services Federation (1992) 175 CLR 442, the High Court considered the eligibility clause in the rules of an organisation of employees registered under the (then) Industrial Relations Act 1988 (Cth).  The eligibility clause referred to persons employed in the public service of Victoria or employed in any State instrumentality or other undertaking carried on by public authorities, commissions or corporations under any State charter, statute, enactment or proclamation of the State of Victoria.  At page 450, Mason CJ, Brennan and Gaudron JJ, constituting the court, said:-

“The question whether a body is a public authority is one of fact and degree which often requires a balancing of the various features of the body concerned … In Renmark Hotel Inc. v. Federal Commissioner of Taxation, Rich J., at first instance, said that for a body to be a public authority “it should carry on some undertaking of a public nature for the benefit of the community or of some section or geographical division of the community and that it should have some governmental authority to do so”.  His Honour’s decision was upheld on appeal, emphasis being given to the need for “public functions” …” (footnotes omitted).

89      In the Anti-Cancer Council case, the court also cited its earlier decision of Western Australian Turf Club v Federal Commission of Taxation (1977-1978) 139 CLR 288.  The court there considered the status of the Western Australian Turf Club for the purpose of s23(d) of the Income Tax Assessment Act 1936 which contained an exemption from tax for bodies including a “public authority constituted under any Act or State Act”.  The court held that the Turf Club did not have this status, primarily on the basis that it had entire control over the disposition of its profits and its members were entitled to share in the division of its assets on dissolution (see, for example, Stephen J at pages 298-299).

90      In my opinion, the authorities establish that a public statutory body is a statutory body which performs functions for the benefit of the public as a whole or a significant sector of it.  In his oral submissions, the respondent’s agent provided the Full Bench with some dictionary definitions of the word “public” (The Australian Concise Oxford Dictionary, 3rd Edition).  He submitted that the definition which applied to a “public statutory body” was “(of a service, funds, etc.) provided by or concerning local or central government”.  That is, a body closely aligned with government and receiving government funding.  I do not think this is what is mean by a “public statutory body” in the Act, although government funding may be one indicia of such a body.  Of the definitions provided by the respondent, in my opinion, “of or concerning the people as a whole” best represents the meaning of “public” in the present context.

91      In Smith v Lawrence and Others (2002) 171 FLR 68, Barrett J of the Supreme Court of New South Wales at [52], following a review of the cases, said that “it is necessary to make a close examination of the functions, activities and objects of a particular body in order to determine whether or not it is a public authority”.  This comment was made with reference to the New South Wales Grains Board, constituted by the Grain Marketing Act 1991 (NSW).  The question was whether the board was an exempt public authority, on the basis that it was a public authority, under s57A of the Corporations Law.  His Honour then considered the functions, role and accountability of the Grains Board under the Grain Marketing Act 1991 (NSW).

92      In my opinion it is necessary to consider these issues with respect to the appellant.

93      As set out earlier, the appellant is constituted under s4 of the Murdoch University Act.

94      The objects of the appellant are set out in s5 of the Murdoch University Act as follows:-

“The objects of the University shall be the advancement of learning and knowledge, and the provisions of university education.”

95      The functions of the appellant are set out in s6 of the Murdoch University Act as follows:-

“(1) The functions of the University shall include the following —

(a) to establish and maintain such schools of study as are prescribed by Statute;

(b) to participate in the development and improvement of tertiary education to meet the needs of the community;

(c) to encourage and undertake research; and

(d) to provide such facilities as are necessary or conducive to the attainment of the objects of the University and the performance of its functions.

(2) The University shall have all such powers, rights and privileges as are reasonably necessary to enable it to carry out its functions.”

96      The reference to a “statute” in this section means, pursuant to s3 of the Murdoch University Act, a statute of the appellant in force pursuant to the Murdoch University Act.

97      In my opinion, the objects and functions of the appellant as set out in the Murdoch University Act are essentially public functions.  The performance of the functions and the carrying out of the objects by the appellant is of benefit to members of the public and the public generally.

98      S8 of the Murdoch University Act provides that the appellant is consisted of the Senate, such members of the academic and other staff of the appellant as are prescribed by statute, convocation, the students for the time being and such other persons if any as are prescribed by statute.  The reference to the Senate is a reference to the body constituted by s12 of the Murdoch University Act which sets out the membership of the Senate.  Relevantly, it includes six members who are to be appointed by the Governor.  This implies some element of public control over the administration of the appellant.

99      Pursuant to s17 of the Murdoch University Act, the Senate is the governing body of the appellant.  S17(2) of that Act provides that the Senate has the control and management of the affairs and concerns of the appellant.

100   S22(1) of the Murdoch University Act provides that the appellant shall have power to award to any person after examination and in accordance with the statutes and regulations such degrees and other academic distinctions as may be constituted by statute.  This gives the appellant a power which the public does not have.  This is sometimes considered important in determining if a body is a “public authority” (see Hill J in Federal Commissioner of Taxation v Bank of Western Australia Ltd at pages 618-619).

101   S32 of the Murdoch University Act provides for loans being raised by the appellant being guaranteed by the treasurer.

102   S34 of the Murdoch University Act refers to the application of the Financial Administration and Audit Act 1985 (the FAA Act) to the appellant.  It provides that the FAA Act applies with some exemptions and modifications to the appellant.  The purpose of the FAA Act, as set out in its preamble, includes to “make provision for the administration and audit of the public finances of the State and certain statutory authorities and other bodies, to provide for annual reporting by departments and statutory authorities, to authorise and regulate the investment of certain public moneys”.  In my opinion, the application of the FAA Act to the appellant also emphasises the public nature of the appellant.

103   S34 is the last section of the Murdoch University Act.

104   During submissions, there was some discussion about whether the appellant could be distinguished from the University of Notre Dame, as a private university.  The University of Notre Dame is established pursuant to the University of Notre Dame Australia Act 1989 (the University of Notre Dame Act).  S25 of that Act is in the following terms:-

“25. University is an independent body

(1) The University is not a State agency or State instrumentality or public statutory body, and, other than as provided in section 25A, no revenue or moneys are to be appropriated for the purposes of the University.

(2) The University is not a public authority, statutory authority or statutory corporation for the purposes of any written law in which any of those terms is used.

(3) Without limiting the generality of subsection (2) — 

 (a) the University is not an authority for the purposes of the Western Australian Treasury Corporation Act 1986 ;

 (b) the University is not a public authority for the purposes of Division 2 of Part 11A of the Industrial Relations Act 1979 .”

105   In my opinion, s25(3)(b) is particularly relevant.  The inclusion of the section indicates the legislature thought it necessary to make it clear that Notre Dame University was not a “public authority” under the Act.  The reason that this was necessary, in my view, is that otherwise the Notre Dame University could be found to be a public authority (as a public statutory body), because of the public functions which a university ordinarily performs.  There is no section in the Murdoch University Act equivalent to s25(3)(b) of the University of Notre Dame Act.  This seems to indicate that the legislature did not share any similar concern that the appellant might be found to be a public statutory body, when this was not the legislative intention.  It adds weight to the argument based on s80C(1)(f) of the Act that the legislative intent was for the appellant to be characterised as a public statutory body.

106   As the High Court in the Anti-Cancer Council case set out, the question of whether an entity is a public statutory body is ordinarily a question of fact.  Apart from references to the Murdoch University Act, however, in submissions by the parties, there were no evidentiary materials before the Commissioner on this issue.  There could, for example, have been evidence about the funding and activities of the appellant which are relevant to its characterisation.  In Smith v Lawrence and Others, for example, the Annual Reports of the Grains Board which described its activities were before the court.

107   Given the absence of evidence, I have considered whether the appropriate course was to remit the matter to the Commissioner for further consideration, giving the parties an opportunity to present evidence on the issue.  In the end, however, I do not think this is the appropriate course.  This is because it was up to the current respondent to establish that the Commission had jurisdiction, once this was challenged by the present appellant.  To this end, the appellant could have, but did not, put evidence before the Commission on this issue.  In my opinion, on the materials before the Commissioner, she could not have been satisfied that the Commission as constituted had jurisdiction and the application should have been dismissed on this basis.  This is because, on the material before the Commission, it could not have been satisfied that the appellant was other than a public statutory body.

108   As I have said, the presence of s80C(1)(f) in the Act, coupled with s25(3)(b) of the University of Notre Dame Act, strongly suggest the legislature intended the appellant to be a “public statutory body”.  Additionally, the objects and functions of the appellant benefit the public or a significant sector of it.  The Government has a role in appointing to the Senate and the FAA Act largely applies to the appellant.  Both of these things emphasise the public nature of the appellant.

109   Accordingly, on the materials before the Commissioner, I am of the opinion that:-

(a) The appellant is a public statutory body and therefore a “public authority” as defined in the Act.

(b) Mr Mayger was a salaried officer, employed by the appellant.

(c) Due to (a) and (b), Mr Mayger was a “government officer”, as defined in s80C(1) of the Act.

(d) Mr Mayger had a right of appeal to the Public Service Appeal Board under s80I(e) of the Act, against the decision to terminate his employment.  This constituent authority of the Commission had exclusive jurisdiction to hear and determine an application with respect to the industrial matter of Mr Mayger’s termination (see Li Liu v Public Transport Authority of the Government of Western Australia at [19]-[22]).

(e) As the Public Service Appeal Board had exclusive jurisdiction to deal with the industrial matter constituted by Mr Mayger’s termination of employment, s22A of the Act applied.

(f) Accordingly, the Commission, as constituted at first instance, did not have jurisdiction to convene the conference and make the orders it purportedly did under s44 of the Act.

110   As a result the appeal must be allowed on this ground and the orders of the Commission set aside.

Ground 2

111   Due to the conclusions reached in ground 1(b), it is not strictly necessary to decide this ground of appeal or ground 3.  I think it appropriate, however, to shortly express my reasons for concluding that the appeal should not be allowed on either of these two grounds.

112   Ground 2 asserts that the Commissioner erred in law in that she failed to comply with the requirements of s44(11) of the Act.  The facts which the appellant argued supported this ground are set out in the particulars to the ground, quoted earlier in these reasons.  The letter referred to in the particulars was sent by the appellant on 5 September 2005.  The response was by letter from the Commissioner’s Associate dated 6 September 2005.

113   To understand the ground, I set out below s44(9)-(12) of the Act:-

“(9) Where at the conclusion of a conference held in accordance with this section any question, dispute, or disagreement in relation to an industrial matter has not been settled by agreement between all of the parties, the Commission may hear and determine that question, dispute, or disagreement and may make an order binding only the parties in relation to whom the matter has not been so settled.

(10) Subject to subsections (11) and (12), the Commission may, for the hearing and determination of a matter under subsection (9), be constituted by the Commissioner who presided over the conference.

(11) Where the Commissioner referred to in subsection (10) proposes to constitute the Commission for the purpose mentioned in that subsection, he shall, at the conclusion of the conference advise the parties thereto of his intention so to do, and, if any party thereupon objects to the Commission being so constituted for that purpose, that Commissioner shall not enter upon the hearing of the matter concerned unless — 

(a) he has discussed with the Chief Commissioner the propriety of his so doing; and

(b) the Chief Commissioner, after interviewing the objecting party, has directed him so to do.

(12) Where the Chief Commissioner does not give the direction referred to in subsection (11)(b), he may —

(a) allocate the matter in dispute for hearing and determination by the Commission constituted by a Commissioner other than the Commissioner who presided over the conference; and

(b) exercise in relation to the matter such powers of the Commission referred to in section 27(1) as he considers appropriate and are not inconsistent with the hearing and determination under paragraph (a).”

114   The facts as disclosed by the particulars to ground 2 plainly do not involve any breach of s44(11) of the Act.  The Commissioner did at the conclusion of the conference advise the parties of her intention to (later) hear and determine the matter.  The appellant did not “thereupon” object to the Commissioner doing so.  There was therefore no requirement to act in the way further contemplated by s44(11) of the Act.  Moreover, the Commissioner has not entered “upon the hearing of the matter”, as described in s44(11).  Additionally, there was no connection between the actions of the Commissioner, in not acceding to the request contained in the letter, to not continue to hear the matter, and the making of the orders which were subject to the appeal, on 30 September 2005.

115   This ground of appeal has not been established.

Ground 3

116   This ground asserted that the Commissioner erred in the exercise of her discretion to make the order dated 30 September 2005.  It was argued that the terms of the order were unreasonable and onerous to the appellant and could prejudice the appellant’s position at the substantive hearing of the application.

117   It was accepted by the appellant that before the Full Bench could allow the appeal on this ground it would need to be satisfied that an error had occurred, of the type discussed by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 505.  That is:-

“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

118   In publishing the order which was first made on 29 September 2005 the Commissioner set out in a lengthy preamble, the arguments made by the parties on whether the interim order should or should not be granted.  The contentions of the appellant were there set out.  As such I am not convinced that the Commissioner failed to take into account any materially relevant factor which was relied upon by the appellant.

119   I also do not think that the order made was unreasonable or plainly unjust as contemplated by their Honours in House v The King.  It was an order which, in my opinion, was open to be made by the Commissioner upon the materials before her.

120   It is also the case that the Commissioner was in possession of more information as to the “state of play” than is before the Full Bench.  This is because the Commissioner had participated in a private conference, purportedly under s44 of the Act, and had the opportunity to comprehend first hand the position of the parties and the industrial environment.  In my opinion, the Full Bench should be slow to intervene in the making of an interim order, in such circumstances.

121   In my opinion, this ground of appeal has not been established.

Conclusion

122   Due to the conclusions made with respect to ground 1(b) above, the appeal must be allowed and the orders of the Commissioner at first instance set aside.

SENIOR COMMISSIONER GREGOR:

123   I have had the benefit of reading the Decisions of both the Acting President and Commissioner Smith.  I do not disagree with the conclusions that they have reached.

124   I have reached the conclusion that the appeal has to be upheld very much for the reasons that the Acting President sets out in his Reasons for Decision.  That is, the Appellant is a public statutory body and therefore a public authority as defined.  The Applicant was a Salaried Officer and by virtue of being a Government Officer as defined in s80C of the Act has a right of appeal under s80I(1) to the Public Service Appeal Board which has the exclusive jurisdiction to deal with such an application.  As a result the appeal must be allowed on that ground and I therefore join my colleagues in allowing the appeal and setting aside the orders made at first instance.

COMMISSIONER SMITH:

125    The relevant facts of this matter are set out in the reasons of the Acting President.

Ground 1(a)

126    The appellant argues the Commissioner erred in law in not finding that s170LZ of the WR Act operated to exclude the jurisdiction of the Commission under the Act.  Section 170LZ(1), (3) and (4) of the WR Act provides:

“(1) Subject to this section, a certified agreement prevails over terms and conditions of employment specified in a State law, State award or State employment agreement, to the extent of any inconsistency.

(3) If a State law provides protection for an employee against harsh, unjust or unreasonable termination of employment (however described in the law), subsection (1) is not intended to affect the provisions of that law that provide the protection, so far as those provisions are able to operate concurrently with the certified agreement.

(4) To the extent of any inconsistency, a certified agreement displaces prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.”

127    In support of its argument the appellant contends that an agreement the Murdoch University (General Staff) Enterprise agreement 2004 [PR954565] (“the certified agreement”) which is an agreement certified by the Australian Industrial Relations Commission (“the Australian Commission”) cannot operate concurrently with the provisions of the Act.  In particular, they argue that the terms of the certified agreement evince an intention to cover the field of “reinstatement” and that whilst the terms of the certified agreement do not deal with reinstatement, they say the field is covered by clause 18 of the certified agreement which provides for termination of an employee’s employment with or without notice.  The appellant also says that insofar as clause 13 of the certified agreement only confers jurisdiction to hear disputes between the appellant and employees covered by the certified agreement by the Australian Commission, clauses 12 and 13 have no application to this matter as the person in relation to whom the interim reinstatement order relates was not an employee of the appellant prior to the interim order being made.  For the reasons set out in the Acting President’s reasons for decision, plainly that submission in law is correct.

128    However, I do not agree with the submission that whether the provisions of the Act, in particular s44 of the Act, can operate concurrently with the certified agreement turns on whether the certified agreement purports to cover the field.  The certified agreement is not a law of the Commonwealth but its force is derived from a law of the Commonwealth, the WR Act.  However, inconsistency between the Act and the certified agreement has the same effect as inconsistency between a law of the Commonwealth and a law of the State (see Clyde Engineering Company Limited v Cowburn (1926) 37 CLR 466).  The appellant’s argument that the certified agreement covers the field, fundamentally fails as s170LZ(3) expresses an intention not to cover the field.  In R v Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545 the High Court considered a statutory provision that was similar in terms to s170LZ(3) of the WR Act.  In that matter, the High Court considered whether s40 of the Consumer Credit Act 1972 (SA) was inconsistent with Part V of the Trade Practices Act 1974 (Cth).  In that case both the State and Commonwealth laws provided for conditions to be implied in consumer sales contracts but there were differences in detail between the State and Commonwealth conditions.  Section 75 of the Trade Practices Act provided that Part V was “not intended to exclude or limit the concurrent operation of any law of a State or Territory”.  Mason J with whom Barwick CJ, Gibbs and Stephen JJ agreed, observed at page 563:

“… a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provisions with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation.  Here again the Commonwealth law does not of its own force give State law a valid operation.  All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.”

129    After considering the operation of the State and Commonwealth laws the Court concluded in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (op cit) the Commonwealth law evinced an intention not to cover the field and there was no inconsistency between the two laws as no direct inconsistency arose. 

130    In City of Mandurah v Hull (op cit), the Industrial Appeal Court considered that the effect of s152(1A) of the WR Act, the terms of which were substantially identical to s170LZ(3) of the WR Act.  Anderson J with whom Kennedy J agreed, observed that Mason J in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (op cit) pointed out at 563 that it is:

“… well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provisions upon the same topic, making it impossible for both laws to be obeyed.”

131    Anderson J in City of Mandurah v Hull (op cit) held that s152(1A) of the WR Act evinced an intention not to cover the field and said that in determining whether s29 of the Act was inconsistent with the Federal award:

“It therefore remains to consider whether there is a direct inconsistency or collision between the provisions of the award and s 29 of the WA State Act such that they cannot operate concurrently.”

132    In Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 259 to 261 Mason J observed direct inconsistency:

“... is a description which has always been applied to cases in which it is impossible to obey both laws (R. v. Licensing Court of Brisbane; Ex parte Daniell (53); Blackley v. Devondale Cream (Vic.) Pty. Ltd. (54)).  It is also a description which has been applied to cases in which the Commonwealth law grants a permission or a right and the State law prohibits that which is permitted or prohibits the exercise of the right (Colvin v. Bradley Brothers Pty. Ltd. (55)).  Cases of this kind have sometimes been treated as a separate head of inconsistency (O’Sullivan v. Noarlunga Meat Ltd. (56)), though even when so treated they have generally been related to the ‘cover the field’ test (O’Sullivan v. Noarlunga Meat Ltd. (57); Swift Australian Co. (Pty.) Ltd. v. Boyd Parkinson (58)), apparently on the ground that direct inconsistency is confined to a situation in which simultaneous obedience to both laws is impossible.

As the various tests which have been applied by the Court are all designed to elucidate the issue of inconsistency it is not surprising that they are interrelated and that in a given case more than one test is capable of being applied so as to establish inconsistency.  Especially is this so when it is the giving of a permission or the grant of a right by Commonwealth law that is the foundation of a claim of inconsistency.  If, according to the true construction of the Commonwealth law, the right is absolute, then it inevitably follows that the right is intended to prevail to the exclusion of any other law.  A State law which takes away the right is inconsistent because it is in conflict with the absolute right and because the Commonwealth law relevantly occupies the field.  So also with a Commonwealth law that grants a permission by way of positive authority.  The Commonwealth legislative intention which sustains the conclusion that the permission is granted by way of positive authority also sustains the conclusion that the positive authority was to take effect to the exclusion of any other law.  Again it produces inconsistency on both grounds : cf. Airlines of New South Wales Pty. Ltd. v. New South Wales (59), where the permission for which Commonwealth law provided was neither absolute nor comprehensive.

Inconsistency between a Commonwealth award or an agreement having the force of an award and a State law involves special considerations.  They were discussed in Robinson (T. A.) and Sons Pty. Ltd. v. Haylor (60), and they explain the presence of s. 65 in the Act.  In truth the case which Ansett makes is one of inconsistency between the Act and the State Act, s. 109 giving paramountcy to the Act with the result that the State Act cannot operate if, pursuant to the Act, the Commission has exercised its power to the exclusion of the provisions made by State law on the topic.  The issue therefore turns upon the interpretation of the agreement and, despite the emphasis given to the claim of direct inconsistency, the question is whether the provisions of the agreement were intended to operate, subject to, or in disregard of, the general law.”

133    In construing an award or a certified agreement the principle must be borne in mind that every award is made against a background of the general law of each State governing the relationship of master and servant (R v Clarkson; Ex parte General Motors-Holden’s Pty Ltd (1976) 134 CLR 56 at 77 per Jacobs J).

134    In this matter a union member had been dismissed by the appellant for misconduct.  The respondent made an application under s44 of the Act for an interim re-instatement order.  In making the order the Commission acted under s44(6)(bb)(i) of the Act.  The issue in this matter to be determined by this Full Bench is whether there is a direct inconsistency or collision between s44 of the Act and clause 18(1), (5) and (6) of the certified agreement.  Clause 18(1), (5) and (6) of the certified agreement provides:

“18.1 Full and Part Time Employees

(a) Except as provided in this cluse, an employee’s contract of service may be terminated by either party giving 4 weeks’ notice in writing or by the payment or forfeiture, as the case may be, of 4 weeks’ salary.

(b) if the employee is over 45 years old and has more than 2 years’ continuous service with the University, the University must provide an additional week’s notice.

18.5 The University may dismiss an employee, including a fixed term employee, without notice for serious misconduct which justifies instant dismissal.

18.6 An employee, other than a casual employee, whose contract of service is terminated shall be advised in writing of the reasons.”

135    Section 44(6)(ba) and (bb)(i) and (ii) of the Act provides:

“(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may —

(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission —

(i) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter;

(ii) enable conciliation or arbitration to resolve the matter in question; or

(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question;

(bb) with respect to industrial matters —

(i) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act; and

(ii) without limiting paragraph (ba) or subparagraph (i), in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;” 

136    Section 44(6)(bb)(i) of the Act empowers the Commission to make any order which the Commission is otherwise authorised to make under the Act.  Under s23A(3) of the Act the Commission is empowered to order an employer to reinstate an employee on claims of unfair dismissal.  Section 23A(1) to (6) and (12) of the Act provide:

“(1) The Commission may make an order under this section if the Commission determines that the dismissal of an employee was harsh, oppressive or unfair.

(2) In determining whether the dismissal of an employee was harsh, oppressive or unfair the Commission shall have regard to whether the employee —

(a) at the time of the dismissal, was employed for a period of probation agreed between the employer and employee in writing or otherwise; and

(b) had been so employed for a period of less than 3 months.

(3) The Commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.

(4) If the Commission considers that reinstatement would be impracticable, the Commission may order the employer to re‑employ the employee in another position that the Commission considers —

(a) the employer has available; and

(b) is suitable.

(5) The Commission may, in addition to making an order under subsection (3) or (4), make either or both of the following orders —

(a) an order it considers necessary to maintain the continuity of the employee’s employment;

(b) an order to the employer to pay to the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal.

(6) If, and only if, the Commission considers reinstatement or re‑employment would be impracticable, the Commission may, subject to subsections (7) and (8), order the employer to pay to the employee an amount of compensation for loss or injury caused by the dismissal.

…

(12) The Commission may make any ancillary or incidental order that the Commission thinks necessary for giving effect to any order made under this section.”

137    In my opinion clause 18.1(a) and (b) of the certified agreement are procedural.  Mason J in Ansett Transport Industries (Operations) Pty Ltd v Wardley (op cit) at 260 made a similar observation in relation to notice provisions in the Airline Pilots Agreement 1978 which provided for different periods of notice to be given depending upon length of service.  In this matter clause 18.1(a) and (b) of the certified agreement do not provide for an unfettered right of dismissal on any grounds and assume the right of dismissal under the general law.  The same can be said about clause 18.5 of the certified agreement.  Whilst clause 18.5 provides that the appellant may dismiss an employee without notice for serious misconduct, that right is not unfettered or absolute as the right to dismiss for “misconduct” is qualified by the words “serious misconduct which justifies instant dismissal’.  The terms of the certified agreement do not define such conduct, the certified agreement simply assumes the right of summary dismissal for which the general law provides.  That right at common law has been modified by Western Australian law, in that, an employer must not harshly, oppressively or unfairly dismiss an employee.  For these reasons, it is my opinion, that there is no direct inconsistency between the certified agreement and the provisions of the Act.  The provisions of the Act do not deny, or vary a right, power or privilege conferred on the appellant or the respondent’s member by the certified agreement.

138    In my respectful opinion, the decision of the Supreme Court in The Queen v The Industrial Court of South Australia; Ex parte General Motors-Holdens Pty Ltd (op cit) can be distinguished.  In the matter before the South Australian Supreme Court, the Court held s15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA) was directly inconsistent with clause 6 of the General Motors-Holden’s Pty Limited (Part 1) General Award 1974.

139    Clause 6(c)(i) in particular of the award in that matter provided:

“Employment shall be terminated by a week’s notice on either side given at any time during the week or by the payment or forfeiture of a week’s wages as the case may be.  Such notice may be given at any time but shall expire at the ordinary finishing time of a working day or shift.  Notice given before the commencement of a day’s work or shift shall be deemed to have been given at the end of the previous day’s work or shift and notice given during a day’s work or shift shall be deemed to be given at the end of that day’s work or shift.  This shall not affect the right of the Company to dismiss an employee without notice for malingering, inefficiency, neglect of duty or misconduct and in such cases wages shall be paid up to the time of dismissal only.”

140    Section 15(1)(e) of the Industrial Conciliation and Arbitration Act 1972 (SA) conferred on the Industrial Court of South Australia jurisdiction to hear and determine whether a dismissal was harsh, unjust or unreasonable and, if it thinks fit, direct an employer to re-employ an employee in their former position.  Walters and Wells JJ in a joint judgment observed at 599:

“The relationship of an Award to the common law and to statute law is neatly summarized by Webb in his Industrial Relations and the Contract of Employment (1974) where, at page 21, he writes:

‘The significance of the common law can be recognised if contracts of employment are seen to be stratified.  First there is a foundation strata being the common law.  Superimposed on this are State acts, regulations and State industrial determinations; in places such State law cuts through and replaces the common law foundational strata.  Above this again are Commonwealth Acts, regulations and awards of the Arbitration Commission.  Federal law cuts through State law in places, sometimes at the point where State law has already cut through common law, sometimes direct into common law.’ “

141    Walters and Wells JJ after considering this passage concluded at 599 to 560 that clause 6 of the Award was prescriptive.  In particular, clause 6 selected:

“… certain specific aspects of the contract of employment, presumably those that were the subject of controversy, and lay down positive rules to set that controversy at rest and to regulate future cases within their ambit.  Sub-clause (c) is headed “Termination of Employment” and paragraph (i) of that sub-clause begins with the assertion, to which parties to the Award are deemed to subscribe, that employment shall be terminated by a week’s notice on either side given at any time during the week, or by the payment or forfeiture of a week’s wages, as the case may be.  Then follow two sentences which govern the machinery of giving notice.  Hard upon those two sentences appears the important saving clause:  “This shall not affect the right of the Company to dismiss an employee without notice for malingering, inefficiency, neglect of duty or misconduct and in such cases wages shall be paid up to the time of dismissal only.”  The clause thus falls within the general description of such clauses given by Webb (op. cit. at page 62) who writes:

‘(ii) TERMINATION BY PAYMENT IN LIEU OF NOTICE.  The norm established by Australian industrial awards is that the contract of employment of weekly hired personnel may only be lawfully terminated by either party giving one week’s notice to the other or by the employer making payment of a week’s wages in lieu of notice to the employee, or by the employee forfeiting a week’s wages in lieu of notice.  In addition it is common practice for awards to recognise the common law right of an employer to sever the contract summarily where the conduct of the employee concerned is incompatible with the continued existence of the contract.’

In our judgement, clause 6, in general and sub-clause (c), paragraph (i), in particular, confers on both employer and employee the power to terminate the employment upon the fulfilment of certain conditions precedent.  Once the power is duly and lawfully exercised, and the appropriate time (if any) expires, the termination becomes immediately and completely effective no matter what were the surrounding circumstances in which the power was exercised.  The termination contemplated by the Award is neither provisional nor subject to a condition subsequent in defeasance; it is final and absolute as between the parties.  Whether a fresh relationship of master and servant is subsequently created is, so far as the control effected by the Award goes, a matter for the parties; the previously existing relationship has been destroyed, and no means is contemplated by the Award for resurrecting it.”

142    In this matter the relevant terms of the certified agreement do not prescribe the conditions of termination.  In particular, the circumstances which justify dismissal for misconduct are not prescribed but are left to the general law.  For these reasons this ground of appeal fails.

Grounds 1(b), 1(c), 2 and 3

143    For the reasons given by the Acting President, I agree that the appeal should lie in the public interest and the appeal be upheld on ground 1(b) and that grounds 2 and 3 have not been made out.