2008 WAIRC 00872
DISPUTE RE RECLASSIFICATION/RESTRUCTURE OF CUSTOMER SERVICE OFFICERS
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED
APPLICANT
-V-
THE DIRECTOR-GENERAL, DEPARTMENT OF THE ATTORNEY-GENERAL
RESPONDENT
CORAM PUBLIC SERVICE ARBITRATOR
COMMISSIONER S WOOD
HEARD THURSDAY, 19 JUNE 2008
DELIVERED FRIDAY, 25 JULY 2008
FILE NO. PSACR 5 OF 2008
CITATION NO. 2008 WAIRC 00872

CatchWords Industrial Dispute – Arbitration – Reclassification of person with position – Approved Procedure 1 – Interpretation of document – Delegated legislation – Public Sector Management Act 1994 (WA) – Industrial Relations Act 1979, s.44 – Interpretation Act 1994, s.18, s.44, s.56
Result Application dismissed

Representation
APPLICANT MR S FARRELL AND MR E SCHNELL

RESPONDENT MR D MATTHEWS OF COUNSEL


Reasons for Decision

Background
1 This matter was lodged in the Commission on 4 March 2008 and came on for conference on 7 March and 28 April 2008, pursuant to s.44 of the Industrial Relations Act 1979 (“the Act”). The dispute could not be settled by conciliation and the matter was referred to hearing. The Memorandum for Hearing and Determination was signed by the Commission on 23 May 2008.
2 The Memorandum for Hearing and Determination states:
“The Applicant says:
1. The Civil Service Association (CSA) has members who are employed as Level 1 Customer Service Officers, by the Respondent in Western Australian Magistrates Courts & Tribunals.
2. On 4th December, a circular, titled Circular 1 of 2007 was issued by Michael Johnson, the Respondent’s Director Magistrates Courts & Tribunals to Regional Managers & Clerk of Courts advising them that internal funding had been allocated to support the reclassification of all Level 1 Customer Service Officer positions at regional and metropolitan registries of the Magistrates Court.
3. This circular was then reissued on the same day titled Circular No:1A of 2007 – Correction and Clarification in which all reference to reclassification was changed to restructure.
4. The Respondent indicates in this circular that an application for exemption from external advertising had been made. This application was later partially approved, the positions in the regional areas are exempted from external advertising, however, the positions in the metropolitan area are not. The Respondent intends to fill all positions by a merit selection process.
5. Approved Procedure 1 – Approved Classification System and Procedures states in its final paragraph:
CEOs or other relevant employing authorities may approve the reclassification of the substantive occupant of a job, subject to compliance with Clause 8(1)(b) and (c) of the PSM Act, and provided that the officer has been in the position and undertaking the higher level duties that warranted reclassification of the position, for a continuous period of 12 months.
6. Approved Procedure 1 has the status of delegated legislation. This status comes from s.29(1)(h)(ii) of the Public Sector Management Act 1994
7. Approved Procedure 1 applies and that provided if an employee complies with the requirements in Approved Procedure 1, then the Respondent is required to substantively appoint the employee into the new Level 2 position.
Order sought:
The Applicant seeks an order that all persons employed in positions in Level 1 Customer Service Officer positions that are reclassified to Level 2 Customer Service Officer positions be personally reclassified to Level 2 provided that they comply with the provisions of Approved Procedure 1.
The Respondent says:
1. Circular 1 of 2007, dated 4 December 2007, said that, "internal funding has been allocated in this financial year to this sub-program by Court and Tribunal Services to support the reclassification of all Level 1 Customer Service Officer positions at regional and metropolitan registries of the Magistrates Court", but went on to say immediately thereafter that, "at the Perth registry certain positions only have been identified for reclassification", and that, "three positions in the Coroner's Court have similarly been reclassified".
2. Circular 1 of 2007 stated that, "new JDF's and new positions have been created", for 56 Magistrates Court positions and three Coroner's Court positions.
3. Circular 1A of 2007 was issued later that same day and was a "correction and clarification" of Circular 1 of 2007. Circular 1A of 2007 made it clear that the positions referred to in Circular 1 of 2007 were not being reclassified and these positions were in fact new positions.
4. Section 3(2)(a) Public Sector Management Act 1994 provides that the Minister may, in writing, approve, subject to such conditions as he or she thinks fit to impose, any procedure or classification system.
5. Approved Procedure 3, "Permanent Appointments (Public Service Officers)", provides that, "where a vacant Public Service Office is to be substantively filled, other than by movement of a person without promotion, permanent appointment to that office shall only occur following advertisement of the vacancy in the Public Service Notices (unless otherwise approved by the Ministry of the Premier and Cabinet) and compliance with the Recruitment, Section and Appointment Standard."
6. In relation to regional positions the approval to fill those positions without their advertisement in the Public Service Notices has been granted. No such approval has been granted in relation to metropolitan positions.
7. The Respondent says in these circumstances it is bound to advertise these positions in the Public Service Notices.
8. The positions are not being reclassified and Approved Procedure 1 has no application. Even if Approved Procedure 1 did apply, the part of the Approved Procedure relied upon by the Applicants clearly gives a discretion to the Chief Executive Officer rather than making a requirement of him.
Order sought:
The application be dismissed.”
3 Whilst the Memorandum might suggest otherwise, at hearing the dispute between the parties narrowed to essentially one of interpretation of Approved Procedure 1 [Exhibit A1]. Approved Procedure 1 reads as follows:
“Approved Classification System and Procedures
Introduction: This Approved Procedure relates to the functions of chief executive officers (CEOs) or other employing authorities as provided for in sections 29(1)(h)(ii), 36(1)(c), 41(a)(1),44(3)(b), 53(3)(a) and 64(2)(a) of the Public Sector Management Act 1994 (PSM Act).
This Approved Procedure applies to those agencies forming part of the Public Service as defined in Part 3 section 34(a)-(c) of the PSM Act.
Objective: To provide for classification determination systems and procedures which are in accordance with the principles set out in sections 7 and 8 of the PSM Act.
Definitions
Broadbanding: A system of job classification that recognises the broad underlying similarities in work value that exist between jobs.
Job classification: The assigned classification level allocated to a job according to the relative worth of that job in comparison with like positions.
Job evaluation: The process of systematically and objectively assessing jobs to determine to what extent critical factors, such as skills, knowledge, competencies etc, are required, and considering those factors provided in this procedure, so that a job is appropriately classified.
Job evaluation tool: BI/PERS is the approved job evaluation tool.
Approved System and Procedures
Authority of CEOs or other relevant employing authorities:
In exercising their functions under section 29(1)(h)(ii) and section 36(1)(c) of the PSM Act, CEOs or other relevant employing authorities have the authority to determine the classification of jobs up to and including Level 8.
Authority of the Department of the Premier and Cabinet:
SES jobs and/or non-SES jobs above Level 8, must be treated in accordance with the procedure for the classification of SES jobs (Approved Procedure 2).
Broadbanded classification system:
The broadbanded classification system, incorporating Levels 1 to 9 and Class 1 to 4, is the approved classification system for the Public Service and must be retained unless an agency operates another classification system approved under section 3(2) of the PSM Act.

The classification system used by the Salaries and Allowances Tribunal (SAT) for the holders of offices in the Special Division of the Public Service is approved for use for CEO positions that have been removed from the SAT’s jurisdiction, provided the SAT determined classification at the time of removal is not varied.
Work value:
The classification of a job must be based on work value.
Factors in determining classification:
Determination of the classification of a job shall have regard to the following factors:
• the value of the work performed;
• the responsibilities and skills required:
• comparisons of the work requirements of the job with jobs (internal and external) having similar duties, responsibility and skill requirements;
• the structural relationships of the jobs; and
• the indicative results of the approved job evaluation tool
Industrial and workplace agreements:
Industrial agreements and workplace agreements may provide for the supplementation or variation of the remuneration received by an officer, but cannot change the determined classification of a job.
Reclassification of jobs:
The classification of an existing job shall be altered only when the changed value of the work performed warrants the establishment of a new classification.
Reclassification of the substantive holder of a reclassified job:
CEOs or other relevant employing authorities may approve the reclassification of the substantive occupant of a job, subject to compliance with Clause 8(1)(b) and (c) of the PSM Act, and provided the officer has been in the position and undertaking the higher level duties that warranted reclassification of the position, for a continuous period of 12 months.”
4 It is the last paragraph of Approved Procedure 1, and in particular the use of the word “may” in the context of the document, and the Public Sector Management Act 1994 (PSMA) as a whole that are of particular significance in the submissions of the parties.
Submissions
5 Mr Farrell for the applicant union referred to s.29(1)(e), (g) and (h)(ii) of the PSMA as giving the Director-General certain powers in relation to the recruitment, deployment, organisation and classification of employees and the department. He referred also to s.8(1)(b) and (c) of the PSMA as requiring such powers to be exercised without nepotism or patronage, and that employees are to be treated fairly and consistently and not be subjected to arbitrary or capricious acts.
6 He submitted that by virtue of s.29(1)(h)(ii) and s.3(2)(a) of the PSMA, Approved Procedure 1 had the status of delegated legislation. He then referred to the last paragraph of Approved Procedure 1, namely:
“CEOs or other relevant employing authorities may approve the reclassification of the substantive occupant of a job, subject to compliance with Clause 8(1)(b) and (c) of the PSM Act, and provided the officer has been in the position and undertaking the higher level duties that warranted reclassification of the position, for a continuous period of 12 months.”
7 He submitted that the exercise of interpretation is as expressed by the Full Bench in Kenji Auto Parts Pty Ltd t/a SSS Auto Parts (WA) v Fisk (2007) 87 WAIG 328 (paragraph 38) :
“This exercise involves a consideration of the words used in the section, and the Act as a whole, to endeavour to ascertain the intention of the legislature.”
8 Therefore Approved Procedure 1 needs to be read in the context of the whole of the PSMA. He submitted:
“In addition, section 18 of the Interpretation Act 1994 states that in the interpretation of a provision of a written law a construction that would promote the purpose or object underlying the written law, whether that purpose or object is expressly stated in the written law or not, shall be preferred to a construction that would not promote that purpose or object.” (T5),
and further:
“Section 44(1) of the Interpretation Act 1994 states that words and expression used in subsidiary legislation, such as Approved Procedure 1, shall have the same respective meanings as in the written law under which the subsidiary legislation is made. Section 56 of the Interpretation Act 1994 states that where in a written law the word "May" is used in conferring a power, such words shall be interpreted to imply that the power so conferred may be exercised or not at discretion.” (T5)
9 The applicant submitted that the word “may” therefore in the relevant paragraph of Approved Procedure 1 confers a discretion on the decision maker whether or not to reclassify the substantive holder of a position with the position, however, this discretion is not unfettered. The existence of s.8(1)(b) and (c) of the PSMA means that Parliament intended there to be consistency throughout the Public Service. There may be cases of poor performance or discipline where it is not appropriate to reclassify the substantive holder with the position. This would be an appropriate use of the discretionary power. If the Chief Executive Officer’s discretion was unfettered then a situation could arise where one department would reclassify the substantive holders and another department would not. Such a situation is not what Parliament intended and would contravene s.8(1)(b) and (c) of the PSMA.
10 Mr Farrell submitted that the Classification Determination and Reclassification Policy [Exhibit A2] applies. Clause 9 specifies the principles of human resource management outlined in the PSMA. Clause 24 was referred to and states:
“24. Substantive occupants of reclassified positions may apply for the reclassified position (“reclassification of the person with the position”) subject to meeting all requirements of PSMA Approved Procedure 1, and the following restrictions:
· an applicant can only be reclassified one level at a time;
· the applicant can only be reclassified if they attained their current substantive classification level through merit selection;
· the applicant must have performed the duties which led to the reclassification of the position in a consistent and excellent manner; and
· the applicant must not be the subject of a sub standard performance review.”
In this instance, the requirements have been met. To not reclassify the persons with the positions would be an arbitrary and capricious act and would contravene the policy and the PSMA.
11 Mr Matthews for the respondent submitted that essentially the argument is one of interpretation. The word “may” imports a discretion for the CEO, if certain preconditions are met, in relation to the reclassification of a holder of a position with that position. Approved Procedure 1 applies and the discretion of the CEO is not unfettered. The exercise of discretion may ultimately be reviewed, but “may” in the last paragraph of Approved Procedure 1 means “may”.
12 Section 56 of the Interpretation Act provides that where “may” appears in a written law it is taken to confer a discretion. Approved Procedure 1 is an instrument under a written law and hence s.56 applies to it. Mr Matthews submitted that:
“a court can only find that "May" does not mean may if there is some compelling contrary indication either from the ... from a consideration of the instrument as a whole.
………
If you go to a consideration of the instrument as a whole, sir, this only reinforces the drafter meant to use "May" in its sense of importing a discretion, and the reason I say that, if you go to the terms of the document; Approved Procedure 1 that is, sir, exhibit A1 in these proceedings, where the drafter has intended to impose an obligation, the drafter has used the words traditionally associated with the imposition of an obligation; that is, must and shall.” (T8)
13 Mr Matthews then took the Commission to various parts of Approved Procedure 1 where the words “must” or “shall” are used. He contrasted that to the use of the word “may” in the relevant paragraph and in another paragraph. Hence the drafter was aware of the implications of the terms “must”, “shall” or “may” and “has deliberately used them to have their traditional well-known but different meanings”.
14 As for the purpose of Approved Procedure 1, Mr Matthews submitted that the instrument is about the classification/reclassification of positions. The document is not strictly about filling of positions but the whole theme of the PSMA is about open merit-based selection processes. This is a theme throughout the PSMA but one does not need to go further than s.8 of the PSMA. Approved Procedure 1, next to the sub-heading “Objective”, provides that the classification systems and procedures are in accordance with the principles set out in ss.7 and 8 of the PSMA. He submitted:
“It would be anathema to those principles in the public sector legislation if the approved procedure is to provide that a person must be reclassified with a position simply because that person has been doing the job for 12 months.” (T10)
15 Mr Matthews submitted that performance issues may be a consideration for the CEO as could be a desire to test the market for the best qualified people. As for paragraph 24 of the Department’s classification determination and reclassification policy, this simply makes provision for circumstances that must be met before an occupant may apply for a classified position. However, reclassification is up to the CEO at the end of the day, in accordance with the last paragraph in Approved procedure 1. In conclusion, Mr Matthews submitted:
“the application indicated that the Applicant's case was there was a requirement upon the CEO to appoint people where the circumstances in that last paragraph had been met. It now seems to be an argument that there are fetters upon the application exercise of discretion. So much is accepted, sir, but if the argument is going further and saying that you, sir, ought involve yourself in the exercise of that discretion, all I would say, sir, is that is not the application and there is no evidence whatsoever, with respect, upon which you could usefully or sensibly involve yourself in the exercise of the CEO's discretion.” (T10)
16 In reply Mr Farrell for the applicant submitted:
“there has been no shift in the position of the Applicant in this application.
…
We are simply saying that the Approved Procedure 1 is there, the paragraph at the end enables the Director-General to use her discretion, in this particular case, to reclassify the people with the position, and if you look at the purpose of not only that Approved Procedure 1 but the act in whole, is that that discretion, the discretion not to, is basically fettered on extreme circumstances. Anything else would contravene what we say is the purpose of the act to provide consistency, equity, probity in the public sector.” (T11)
The meaning of Approved Procedure 1
17 At hearing the parties were not apart on the status of Approved Procedure 1. They were in dispute over the meaning or interpretation of the document. Essentially the answer to the question then posed in this dispute is to be found, as the respondent has submitted correctly, within the terms of that particular document. That is, if the drafter had meant “may” should be “must”, then the drafter would have said “must”. The drafter has used “must” and “shall” where the drafter has seen it appropriate to do so. The drafter has used “may” where the drafter has seen it appropriate to do so. Mr Matthews pointed to a number of such instances in the document and, in my view, was correct in doing so.
18 The task of interpretation was enunciated simply and clearly by the Industrial Appeal Court in BHP Billiton Iron Ore Pty Ltd v The Australian Workers’ Union Western Australian Branch, Industrial Union of Workers & Ors 86 WAIG 2696 as follows::
“<p>23</p> The principles governing the interpretation of awards are not really in dispute. They are the same as are applied in courts of law for construction of statutes. That is, the words of the award are to be understood in their ordinary sense, in the context in which they appear.
<p>24</p> If there is no unambiguous ordinary meaning, or if the words, so read, would appear to lead to an absurd result, then there are a variety of interpretative techniques which may be used. Extrinsic evidence may be resorted to, but only where the words themselves are not clear. Further, evidence of the actual intention of the parties is not admissible, and it is not the task of the Commission, or of the Court, to rewrite the award under the guise of interpreting it.” (my emphasis)
19 That matter concerned the interpretation, under s.46 of the Act, of an award of the Commission. However, whilst this dispute does not involve an application under s.46 or an award, the essential task here is the same. The parties do not argue any ambiguity of meaning. They both say, as per s.56 of the Interpretation Act 1994, the term “may” is a term denoting discretion. The CEO may or may not choose to use the power.
20 In my view, it is the case that if the drafter had intended that the provision relating to ‘Reclassification of the substantive holder of a reclassified job’ in Approved Procedure 1 to be other than discretionary, then the drafter could have substituted the word “must” or “shall” and the meaning of the document would have changed and would be perfectly understandable, without any other alteration to the paragraph. The other matters in the paragraph which condition the exercise of power, namely compliance with s.8(1)(b) and (c) of the PSMA and 12 months continuous occupation, could remain unaltered. Indeed whether the word “may” or “must” was used, if the drafter had the intention to condition the exercise of the power by the CEO further, then those conditions could have been made explicit as part of that paragraph. That is the simple and straightforward answer to this dispute.
21 The applicant then takes the Commission to s.8 of the PSMA and s.18 of the Interpretation Act 1994. Section 7 of the PSMA was also referred to. The provisions read as follows:
“7. General principles of public administration and management
The principles of public administration and management to be observed in and in relation to the Public Sector are that — 
(a) the Public Sector is to be administered in a manner which emphasises the importance of service to the community;
(b) the Public Sector is to be so structured and organised as to achieve and maintain operational responsiveness and flexibility, thus enabling it to adapt quickly and effectively to changes in government policies and priorities;
(c) public sector bodies are to be so structured and administered as to enable decisions to be made, and action taken, without excessive formality and with a minimum of delay;
(d) administrative responsibilities are to be clearly defined and authority is to be delegated sufficiently to ensure that those to whom responsibilities are assigned have adequate authority to deal expeditiously with questions that arise in the course of discharging those responsibilities;
(e) public sector bodies should have as their goal a continued improvement in the efficiency and effectiveness of their performance and should be administered with that goal always in view;
(f) resources are to be deployed so as to ensure their most efficient and effective use;
(g) proper standards of financial management and accounting are to be maintained at all times; and
(h) proper standards are to be maintained at all times in the creation, management, maintenance and retention of records.”
“(8)(1) The principles of human resource management that are to be observed in and in relation to the Public Sector are that — 
(a) all selection processes are to be directed towards, and based on, a proper assessment of merit and equity;
(b) no power with regard to human resource management is to be exercised on the basis of nepotism or patronage;
(c) employees are to be treated fairly and consistently and are not to be subjected to arbitrary or capricious administrative acts;”
and:
“18. Purpose or object of written law, use of in interpretation
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.”
22 Hence Approved Procedure 1 is placed in a wider legislative context. The respondent does not disagree with this proposition as the discretion of the CEO cannot be exercised unfettered. The applicant referred to Kenji Auto Parts (op cit) to establish that the wording in Approved Procedure 1 must be read in the context of the PSMA, and to Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355. In Project Blue Sky the Full Federal Court at paragraphs [69] to [71] stated:
“69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (45). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (46). In Commissioner for Railways (NSW) v Agalianos (47), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (48).
70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (49). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (50). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" (51). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision (52). In The Commonwealth v Baume (53) Griffith CJ cited R v Berchet (54) to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.”
23 It should be noted that the quote from Project Blue Sky was in the context of a case of ‘conflicting statutory provisions should be reconciled so far as is possible’. This is the heading for the paragraphs quoted. In other words the meaning of parts of a statute are to be construed within the context of that statute, acknowledging any subordinate provisions.
24 Nevertheless, it is appropriate to view the meaning of Approved Procedure 1 within the context of the PSMA. This is common ground amongst the parties; they simply refer to differing provisions of the Act. The Hon Acting President when dealing with an issue of interpretation in the Full Bench appeal in Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward and John Martin Wall 88 WAIG 155 stated:
“107. In my supplementary reasons in Kenji Auto Parts Pty Ltd t/a SSS Auto Parts (WA) v Fisk (2007) 87 WAIG 328 (agreed with by Smith SC and Scott C) I referred to this issue at paragraph [38]. As there stated, statutory construction involves a consideration and analysis of the meaning of the words used in a section in the context of the legislation and legislative scheme as a whole, to try to discern the intention of the legislature (Project Blue Sky Inc and Others v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [69]; and Wilson v Anderson and Others (2002) 213 CLR 401 at paragraph [8]).
108. Additionally, in Attorney General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485, Kirby J at [113] emphasised that attention must be first focussed “upon the crucial language of the relevant provisions before other aids to construction are considered”. ”
25 I have discussed already the crucial language of the document, Approved Procedure 1. In terms of the PSMA, the applicant relies in particular on s.8(1)(b) and (c). The argument is that the CEO cannot exercise his/her discretion on the basis of nepotism or patronage, or in a manner that is arbitrary or capricious. The respondent emphasised that the whole scheme of the PSMA supports open merit based selections, and that the notion of mandatory reclassification on the basis of 12 months occupancy in a position would be contrary to principles espoused by ss.7 and 8 of the PSMA.
26 The difficulty I have is that the applicant has brought forward no evidence to suggest that the CEO has acted in a manner that can be characterised as nepotism, patronage, arbitrary or capricious. Such evidence would spark broader considerations for the Commission in accordance with s.26 of the Act. The applicant simply seeks to constrain the exercise of the discretion to matters concerning disciplinary or performance matters. The applicant submits simply that if one CEO reclassified and one CEO did not reclassify then this would offend s.8. If it were this simple, then the drafter in Approved Procedure 1 could have used the word “must” instead of “may” and included relevant conditions in relation to discipline or poor performance. The fact that one CEO may choose to exercise the discretion to reclassify and one may not, is a consequence of the discretion granted. Without further evidence such a difference in practice could not be said to be arbitrary or capricious, or characterised in any other way.
27 I would add that the provisions in ss.7 and 8 of the PSMA should be read with some caution as far as placing a clear and binding requirement to act in a certain way. The Industrial Appeal Court in Director General Department of Justice -v- Civil Service Association of Western Australia Incorporated 86 WAIG 231 discussed, among other similar sections, ss.7 and 8 of the PSMA. I include the relevant parts of the majority judgement in full for completeness. Wheeler J and Le Miere J @ 236-237stated:
“<p>37</p> Sections 7 to 9 inclusive provide respectively for the "principles of public administration and management" to be observed in relation to the public sector, the "principles of human resource management" that are to be observed in relation to the public sector, and "the principles of conduct" that are to be observed by all public sector bodies and employees. A number of the grounds of appeal raise the question of the extent to which these provisions are intended to be expressive of more than mere pious hope, and the question of what, if any, consequences the legislature contemplated might flow from a failure to comply with those principles.
<p>38</p> It was conceded by the appellant that there are indications in the PSM Act that ss 7  9 are intended to have some binding force and effect. For example, s 30 provides that the Chief Executive Officer of a department or organisation "shall comply" with the principles set out in s 7, s 8 and s 9. Were it not for provisions of that kind, one might readily have assumed that the legislature intended that the only sanction for failure to comply with those principles would be adverse consideration and report by the Commissioner for Public Sector Standards, whose functions we shortly describe.
<p>39</p> It is certainly the case that ss 7  9 appear to display confusion concerning the function of legislation. Legislation is, of course, generally understood in the community as providing binding and enforceable rules of conduct, usually with some form of sanction or relief available where there has been a failure to comply. A reading of ss 7  9 suggests that those instructing Parliamentary Counsel had something else in mind. For example, the principles set out in s 9 commence with the "principle" that employees "(a) are to comply with the provisions of - (i) this Act and any other Act governing their conduct". It is startling, to say the least, that it was thought necessary to pass a law which states that persons to whom the law applies are to comply not only with it, but with other laws which also apply to them. It is of the essence of laws that persons are required to comply with them, where they apply to those persons. At the other extreme, s 9 also provides that all public sector bodies and employees "(c) are to exercise proper courtesy, consideration and sensitivity in their dealings with members of the public and employees". While it is, of course, extremely desirable that public sector employees (and indeed all members of the community) exercise courtesy and sensitivity in their dealings with others, it is also somewhat startling to see something as nebulous as a requirement of "sensitivity" enshrined as a legislative requirement.
<p>40</p> Whatever force they might otherwise have, however, ss 7  9 are of considerable importance in relation to the functions of the Commissioner for Public Sector Standards.
………
<p>42</p> Whatever else ss 7  9 may require, they at least appear to prescribe considerations to which the Commissioner must have regard when establishing public sector standards.
………
<p>55</p> If the Full Bench's reasoning were correct on this point, s 80E(7) on one view would never have any work to do, since the "matter" before the Arbitrator will always be an "industrial matter" as defined by the Act, being, in effect, a matter affecting or pertaining to the work of employees, rather than a matter relating directly to breach of a public sector standard. Since ss 7 - 9 of the PSM Act are so broad in their scope, it would invariably be possible to frame a claim so as to allege breach of those principles, rather than to rely directly on breach of a public sector standard.”
28 For the above reasons the application will be dismissed.