2009 WAIRC 01348
DISPUTE RE DISCIPLINARY PROCESS
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED
APPLICANT
-V-
DIRECTOR GENERAL, DEPARTMENT FOR CHILD PROTECTION, GOVERNMENT OF WESTERN AUSTRALIA
RESPONDENT
CORAM ACTING SENIOR COMMISSIONER P E SCOTT
HEARD WEDNESDAY, 25 NOVEMBER 2009
DELIVERED THURSDAY, 17 DECEMBER 2009
FILE NO. PSACR 24 OF 2009
CITATION NO. 2009 WAIRC 01348

CatchWords Public Service Arbitrator - Industrial Law (WA) - Matter referred for hearing and determination pursuant to s 44 - Whether jurisdiction of Arbitrator ousted by Public Service Appeal Board - Generalia specialibus non derogentt - Jurisdiction of Arbitrator and Board - "Government officer" - Public Service Officer" - "Conditions of Service" - Disciplinary process under Public Sector Management Act 1994 - Whether employer has power to initiate or continue a disciplinary investigation against a former public service officer
Legislation Industrial Relations Act 1979, s 7(1)(a), s 80C, s 80E, s 80I(1)(a)
Public Sector Management Act 1994, s 3, s 64, s 65, s 66, s 67, Part V, Part VI, s 102
Result Jurisdiction of Public Service Appeal Board prevails - matter dismissed

Representation
APPLICANT MS C REID AND WITH HER MR W CLAYDON

RESPONDENT MR E REA AND WITH HIM MR D HUGHES


Reasons for Decision

1 This matter was the subject of a conference pursuant to s 44 of the Industrial Relations Act 1979 (the IR Act). There was no agreement reached and the matter was referred for hearing and determination in the following terms:
“The Applicant says that:

1. It is an organisation of employees authorised to represent Mr Luke van der Zanden, a former employee of the Department for Child Protection (“the Respondent”).

2. It is in dispute with the Respondent over its power to continue a breach of disciplinary process under the Public Sector Management Act 1994 (“the Act”), when Mr van der Zanden is no longer its employee.

3. Mr van der Zanden was presented with a suspected breach of discipline letter dated 20 April 2009.

4. Mr van der Zanden provided his written response addressing the allegations to the Respondent on 8 May 2009.

5. After Mr van der Zanden had submitted his response his fixed term contract of employment expired as at 4 June 2009 and was not renewed.

6. On 11 June 2009, the Respondent sent Mr van der Zanden a letter notifying him that an investigation into the suspected breaches of discipline would be commenced pursuant to s 81(2) of the Act.

7. The Respondent advised the Applicant in a letter dated 17 September 2009 that it would continue with the investigation notwithstanding the cessation of employment.

8. The Respondent has no power under the Act to pursue a disciplinary investigation of a former employee.

9. Furthermore, the Act provides a statutory mechanism for regulating disciplinary investigations of current employees only.

The Applicant seeks an order that the Respondent ceases the disciplinary process immediately and any other orders the Public Service Arbitrator deems appropriate to resolve the dispute.

The Respondent says that:

1. There is no legislative impediment to its continuing to undertake an investigation upon the cessation of employment of the officer.

2. It is desirable and appropriate to continue with the investigation and reach a conclusion regarding Mr van der Zandin’s conduct.

3. Objects to the orders sought.”

2 For the purposes of the determination of a jurisdictional issue raised by the respondent, the parties provided the following Statement of Agreed Facts:
“1. The Applicant is The Civil Service Association of Western Australia Incorporated ("the CSA").

2. The CSA is a registered organisation of employees authorised to represent Mr Luke van der Zanden.

3. The Respondent is the Director General, Department for Child Protection.

4. Mr van der Zanden was employed with the Respondent pursuant to Section 64(1)(b) of the Public Sector Management Act 1994 ("the Act") as a Residential Care Officer.

5. The Respondent presented Mr van der Zanden with a suspected breach of discipline letter dated 20 April 2009 identifying three suspected breaches of discipline.

6. Mr van der Zanden responded to the three allegations in writing and provided his response to the Respondent on 8 May 2009.

7. Mr van der Zanden's fixed term contract of employment expired as at 4 June 2009. As of the expiration of Mr van der Zanden's fixed term contract Mr van der Zanden was no longer an employee of the Respondent.

8. On 11 June 2009 the Respondent sent Mr van der Zanden a letter notifying him that an investigation into the suspected breaches of discipline would be commenced pursuant to section 81(2) of the the (sic)Act.

9. On 11 September 2009 the Applicant sent the Respondent a letter stating that as Mr van der Zanden was no longer an employee of the Respondent and the Respondent had no ability to continue its investigation.

10. On 17 September 2009 the Respondent wrote to the Applicant and advised that the Respondent believed that it did have the ability to continue its investigation.

11. On 23 September 2009 the Applicant wrote to the Respondent requesting the disciplinary investigation be stayed until such time as the matter could be determined by the Public Service Arbitrator.

12. The Respondent acceded to this request.

13. The Applicant contends that the Respondent does not have the power under the Act to continue the breach of discipline process against Mr van der Zanden.

14. The Respondent contends that it does have the power under the Act to continue the breach of discipline process against Mr van der Zanden.”

The Respondent’s Case
3 The respondent raised an issue of jurisdiction, that the Public Service Arbitrator (the Arbitrator) does not have jurisdiction to determine the claim, that the dispute between the parties relates a decision of the respondent in relation to the interpretation of the disciplinary procedures contained in Part 5 - Substandard performance and disciplinary matters of the Public Sector Management Act 1994 (the PSM Act), that such an interpretation is specifically within the jurisdiction of the Public Service Appeal Board (the Board) (s 80I(1)(a) of the IR Act), and that the particular jurisdiction set out there overrides the general jurisdiction of the Arbitrator set out in s 80E of the IR Act.
4 In that regard the respondent referred to the decision of the Full Bench in Ronald Thomas Bellamy v Chairman, Public Service Board (1986) 66 WAIG 1579 where the principle underlying the generalia specialibus applied.
5 In that case, the applicant, a government officer, had applied to the Commission for relief under s 29(2)(b) of the IR Act rather than appealing to the Board, against the decision to dismiss him. The application of the generalia specialibus principle meant that because the legislature had made special provisions for government officers to make a claim relating to dismissal by reference to the Board, that those provisions prevailed over the general provisions for claims by employees of unfair dismissal under s 29(2)(b).
6 The respondent argues that the jurisdiction of the Board is to deal with the particular issue of a challenge to a decision of the respondent relating to the employing authority’s interpretation of the PSM Act concerning conditions of service of public service officers. The issue between the parties is, according to the respondent, a dispute as to the interpretation of the PSM Act as to whether the employing authority has power to pursue a disciplinary investigation of a former employee. According to the respondent that requires an interpretation of the disciplinary provisions of the PSM Act and whether it applies to former employees. The respondent says that once that issue is resolved, the dispute is resolved.
7 Mr Rea conceded that the terms of the Schedule may suggest that the dispute goes beyond the bare or bald interpretation of the employing authority’s powers under the PSM Act to include the question of merit, that is to include whether, if such an interpretation were that the employing authority may continue or instigate a disciplinary investigation against a former employee, the circumstances of the case justify the continuation or investigation of the investigation. This is reflected in the orders sought by the applicant and the respondent’s position set out in that Schedule which includes:
“2. It is desirable and appropriate to continue with the investigation and reach a conclusion regarding Mr van der Zanden’s conduct”.

8 However, ultimately, the respondent says that an examination of the statement of the applicant’s position in the Schedule clearly relates to power under the PSM Act and the statutory mechanism and not to any question of merit. The claim relates to the special jurisdiction of the Board, and this prevails over the jurisdiction of the Arbitrator.
The Applicant’s Case
9 The applicant says that the Arbitrator has jurisdiction to deal with the matter on the basis that it is an industrial matter; that this matter involves an abuse of the disciplinary process, which in this case relates to an industrial matter in the form of “conditions of employment which are to take effect after the termination of employment” (See the definition of “industrial matter’, s 7(1)(a) of the IR Act).
10 In the course of the hearing, I put to Ms Reid for the applicant whether what “the matters referred for hearing and determination requires is a bare interpretation, or an interpretation for the purpose of moving to a next stage dealing with merit”. Her response was that it was the latter. She went on to say:
Ms Reid: Commissioner, in this particular matter obviously it is to finalise this issue and I think it’s to achieve a result for this particular member.”
(Transcript p 13)
11 Following the hearing on 25 November 2009, I directed my Associate to write to the parties inviting them to make further submissions regarding s 80I(1)(a) of the IR Act. These Reasons also take account of those submissions.
Consideration and Conclusions
12 The first question to be asked is what is the matter in dispute about and what does the applicant seek? The Schedule is set out in para 1 above. The essential parts of that are that:
1. The respondent has advised the applicant that it will continue with the disciplinary investigation into Mr van der Zanden’s suspected breach of discipline, notwithstanding that his employment has ceased.
2. The applicant claims that the respondent has no power to do so.
3. “The applicant seeks an order that the respondent ceases the disciplinary process immediately and any other orders the Public Service Arbitrator deems appropriate to resolve the dispute”.
13 I have noted the terms of the Schedule and the parties’ submissions and conclude that the dispute does not simply involve a question of interpretation and a consequential declaration as to the meaning of the provisions of the PSM Act. The interpretation of the provisions of the PSM Act would be for the purpose of dealing with a matter going beyond that interpretation, to include whether the respondent, if power exists to continue the investigation, should be prevented from doing so. This would include questions of merit. It may involve the issuing of orders to require the respondent to cease the investigation.
14 The next issue is whether the jurisdiction of the Arbitrator is ousted by that of the Board on account of the principle of generalia specialibus.
15 The jurisdiction of the Arbitrator is set out in s 80E of the IR Act. The relevant parts are as follows:
“80E. Jurisdiction of Arbitrator
(1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer, a group of government officers or government officers generally.
…
(5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division.
…”

16 Division 3 of Part II of the IR Act relates to General Orders and is not relevant to this matter.
17 Subsection (6) of s 80E relates to referrals to the Full Bench and Commission in Court Session and is not relevant. Subsection (7) excludes from the Arbitrator’s jurisdiction “any matter in respect of which a procedure referred to in section 97(1)(a) of the PSM Act 1994 is, or may be, prescribed under that Act” and is also not relevant to this matter.
18 The Arbitrator’s jurisdiction is an exclusive jurisdiction to enquire into and deal with any industrial matter relating, in this case, to a government officer.
19 For the purposes of this matter, an “industrial matter” is defined in s 7 of the IR Act as:
“any matter affecting or relating or pertaining to the work, privileges, rights, or duties of employers or employees in any industry or of any employer or employee therein and, without limiting the generality of that meaning, includes any matter affecting or relating or pertaining to - 
(a) …;
(b) the hours of employment, leave of absence, sex, age, qualification, or status of employees and the mode, terms, and conditions of employment including conditions which are to take effect after the termination of employment;
…
20 As I have found earlier, the dispute between the parties involves an interpretation of the provisions of the PSM Act as to the respondent’s powers and a consequent question of merit regarding whether that power ought to have been exercised.
21 I also note that in Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244, Wheeler and Le Miere JJ said:
30 An inquiry into an industrial matter will, where that industrial matter is affected by other legislation, or where the actions of persons involved in the industrial matter are, in some respect, governed by other legislation, involve an inquiry into what was done, in that legislative context. In order to determine how to "deal with" an industrial matter, the Arbitrator must find relevant facts. If it is the case that a relevant factual finding suggests that a person has been guilty of unlawful or improper conduct, that is a finding which it is open to the Arbitrator to make, not as an end in itself, but as a step in determining how the industrial matter is to be dealt with.

31 Where, as is presently the case, the way in which officers in the public service deal with each other is the subject of principles and requirements contained in legislation such as the PSM Act, it will often be desirable for the Arbitrator to consider whether the behaviour of individuals involved in the industrial matter has been in conformity with those principles and requirements. Again, findings of that kind would not be made as an end in themselves, but would be made in order to determine how, in the broad statutory context, it would be appropriate to deal with the industrial matter.

32 It will on occasion, as part of that process, be necessary for the Arbitrator to undertake a consideration of the relevant statutes, so as to ascertain how they apply to the facts as found. That exercise is undertaken, not in order authoritatively to declare the meaning of the statutory provision, but again as a step in the process of ascertaining what is required, in the statutory context, to deal with the industrial matter.

22 The power of the Arbitrator to provide a remedy is set out in s 80E(1), “to enquire into and deal with” the industrial matter. Further s 80E(5) provides for the employer’s decision to be “reviewed, nullified, modified or varied by the Arbitrator in the course of the exercise of” jurisdiction. Therefore the Arbitrator has very wide powers to deal with the industrial matter for the purpose of its resolution. In any event, it is the respondent’s contention that the Arbitrator would have jurisdiction but for it being ousted because the jurisdiction of the Board is more particular to this matter.
23 The jurisdiction of the Board is set out in s 80I of the IR Act to include:
“80I. Appeals
(1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine - 
(a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994 , and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers;
…
and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e).”
24 Section 52 of the PSM Act provides that issues relating to the appointment and other matters associated with chief executive officers are not industrial matters. This is not relevant to the matters being considered. Subsection (3) of s 80I excludes from the Board’s jurisdiction an appeal from a government officer against a decision made under regulations referred to in s 94 of the PSM Act. Neither party suggested that this matter relates to such an appeal and is therefore not relevant.
25 I note the terms of s 80I(1)(a) are that the Board has power to hear and determine “an appeal by any public service officer against any decision of employing authority in relation to an interpretation of any provision of the (PSM Act) concerning conditions of service … of public service officers”.
26 The provision does not simply provide for an appeal against the employing authority’s interpretation of a provision of the PSM Act. Rather, it provides for an appeal “against any decision … in relation to an interpretation of any provision of the Public Sector Management Act … concerning the conditions of service … of public service officers”. (emphasis added) It is therefore not a bare or bald interpretation referred to in the decision of the Commission in Crewe and Sons Pty Ltd v AMWSU (1989) 69 WAIG 2624. It can be clearly distinguished from an interpretation envisaged by s 46 of the IR Act as it relates to the Commission’s general jurisdiction. It involves an appeal against the employer’s decision. That decision relates to an interpretation of the PSM Act concerning conditions of employment of public service officers.
27 An examination of the PSM Act shows that the term “conditions of service” is not defined. However, one might look at, for example, Div 3 - Public Service Officers other than Executive Officers, in particular s 64 - s 67 which deal with appointments; transfers within and between departments and organisations; secondments and vacation of office. Part V - Substandard performance and disciplinary matters deals with a range of conditions of service which include rights to procedural fairness and rights of appeal in the substandard performance and disciplinary processes. Part VI - Redeployment and redundancy provisions also sets out some provisions of the PSM Act dealing with conditions of service. Other miscellaneous conditions include s 102 - Employees not to engage in activities unconnected with their functions. These then might be the flavour of conditions of service for public service officers about which an employing authority may make a decision relating to an interpretation of the PSM Act.
28 The jurisdiction of the Board includes the power to adjust all such matters (s 80I(1) of the IR Act). In this case the adjustment would be to the decision of the employing authority in relation to the interpretation of any provision of the PSM Act concerning conditions of service of public service officers.
29 Therefore the jurisdiction of the Board provides for the adjustment of the employer’s decision in relation to the interpretation of a provision of the PSM Act concerning, in this case, what can be described as a condition of service, that is, whether the conditions of service include the capacity of the employer to instigate or continue to investigate a suspected breach of discipline when the employment has ended. Therefore, the subject of the application also falls within the jurisdiction of the Board.
30 The next question is whether one jurisdiction prevails over the other by reference to the generalia specialibus principle, that is has the legislature made special provisions which deal with the matter in dispute as opposed to provisions which apply generally?
31 The Arbitrator’s jurisdiction is to deal with industrial matters generally as they relate to government officers. Examples of industrial matters are given including conditions which are to take effect after termination of employment.
32 “Government officer” is defined in s 80C of the IR Act in the following terms:
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;”

33 The Board’s jurisdiction is in respect of an appeal against a decision of the employer in relation to an interpretation of the PSM Act concerning conditions of employment of public service officers. Although the Schedule and the Statement of Agreed Facts do not explicitly record whether Mr van der Zanden was a public service officer, point 4 of the Statement of Agreed Facts refers to his appointment pursuant to s 64(1)(b) of the PSM Act. This relates to the appointment of public service officers. Therefore I conclude that Mr van der Zanden was a public service officer.
34 Public service officer is defined in s 3 of the PSM Act as being “executive officer, permanent officer or term officer employed in the Public Service under Part 3”.
35 When considering to whom the respective jurisdictions of the Arbitrator and the Board apply, the Board’s jurisdiction in s 80I(1)(a) is more limited - that is to “public service officers”, who are a subset of “government officers”, whereas the Arbitrator’s jurisdiction is broader, dealing as it does with “government officers”.
36 In relation to the subject matter, the Board’s jurisdiction covers the dispute as to the employer’s decision in relation to an interpretation of the PSM Act concerning conditions of service of public service officers. This is more narrowly focussed on the issue in dispute than a dispute about an industrial matter in respect of conditions which are to take effect after termination of employment. This is because the dispute is about the particular decision of the respondent, which relies on an interpretation of the provisions of the PSM Act. That provision relates to a condition of service, being the disciplinary process.
37 The Full Bench in Bellamy (op cit) referred to the rule in generalia specialibus non derogent and quoted from a number of authorities as follows:
“… In Refrigerated Express Lines (A/Asia) Pty Ltd v. Australian Meat and Live-Stock Corporation and Others (1979-80) 29 ALR 33, Deane J. at 347 referred to the rule in the following terms:-
As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. “The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative …” [per Romilly MR: Pretty v. Solly (1859) 26 Beav 606 at 610]. Repugnancy can be present in cases where there is no direct contradictions between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.
It was earlier pointed out in these reasons that the intention that the special provisions should prevail is indicated by inclusion in the general provision of the words “Subject to this Act”.
There is a reference in Pearce (supra) to a particular application of the principle underlying the generalia specialibus approach where there is a grant of power in general terms and specific terms. It relates to Anthony Hordern and Sons Ltd v. Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 in which, in the majority judgment, it was observed:-
Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when section 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing. When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
Pearce also refers to an excerpt from the judgment of Megarry J. in No. 20 Cannon St Ltd v. Singer and Friedlander Ltd (1974) Ch 229 at 235:-
… the proper principle to apply if an enactment contains two similar prohibitions, one wide and the other applying only to a limited class of case wholly within the wide prohibition, is to treat the wide prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not.”
38 Taking account of these authorities I conclude that the legislature intended there to be a special and particular tribunal whose purpose was to deal with a claim of the nature as the matter referred for hearing and determination. The legislature provided, within the IR Act, the Board, to deal with the decisions of employers of public service officers relating to the interpretation of the PSM Act concerning the power of the employer in the disciplinary process set out in that Act.
39 Therefore I conclude that while the Arbitrator has jurisdiction which is broad and encompasses the issue in dispute, the Board’s jurisdiction is more specific and specialised. The jurisdiction of the Board must prevail.