DISPUTE RE CLASSIFICATION OF UNION MEMBER

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES The Civil Service Association of Western Australia Incorporated

APPLICANT

-v-

Commissioner

Department of Corrective Services

RESPONDENT

CORAM PUBLIC SERVICE ARBITRATOR

 Commissioner S J Kenner

HEARD Wednesday, 27 October 2010, Tuesday, 2 November 2010

DELIVERED WEDNESDAY, 22 DECEMBER 2010

FILE NO. PSACR 25 OF 2010

CITATION NO. 2010 WAIRC 01243

CatchWords Industrial Law (WA) – Jurisdiction of Public Service Arbitrator in relation to Public Sector Standards – Whether Arbitrator engaging in judicial review – Whether an Approved Procedure has the status of delegated legislation – Meaning of ‘in accordance with’ in s29(1)(h)(ii) of the Public Sector Management Act 1994 – Application of Approved Procedure – Application upheld, order made – Industrial Relations Act 1979 s44(9), s80E – Public Sector Management Act 1994 s3(2)(a), s8(1), s9, s15, s21, s29, s64, s97(1) – Interpretation Act 1984 s42

Result Application upheld.  Order made.

Representation 

Applicant Ms J O’Keefe and Ms L Kennewell

Respondent Ms T Borwick and Ms M Maher

Reasons for Decision

1          This is a matter referred for hearing and determination under s 44(9) of the Industrial Relations Act 1979 (“the Act”).  The schedule to the s 44(9) referral is in the following terms:

“Schedule”

The applicant and respondent are in dispute in relation to a claim by the applicant’s member Mr Giblett, to classify Mr Giblett as a Level 7 officer commensurate with the classification of his Position No 4082 Assistant Superintendent, Prisoner Management, Casuarina Prison.

The applicant seeks an order that Mr Giblett be personally reclassified at Level 7 commensurate with the level of his substantive position being Position no 4082 Assistant Superintendent, Prisoner Management, Casuarina Prison.

The respondent objects to and opposes the applicant’s claim.  Moreover, the respondent says that the claim is beyond the jurisdiction of the Arbitrator.”

2          By way of background to the matter, the parties have prepared a statement of agreed facts which is as follows:

“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 Phillip Giblett.

3. The Respondent is the Commissioner, Department of Corrective Services ('the Respondent').

4. Mr Giblett is currently employed by the Respondent pursuant to Section 64(1) (b) of the Public Sector Management Act 1994. Mr Giblett was appointed through merit selection to the position of 4082, Assistant Superintendent Prisoner Management, Level 6, on 19 September 2005.

5. The position of 4082 was subject to a work value assessment, known as the Prison Management Work Value Review, and was reclassified to Level 7. Due to Respondent not personally reclassifying Mr Giblett with the position, he is currently held in a supernumerary Level 6 position and receiving a higher duties allowance to Level 7 for performing the duties of 4082.

6. The date of effect for positions reclassified as part of the Prison Management Work Value Review is 27 January 2009.

7. The terms and conditions of employment of Mr Giblett are governed by the Public Service Award 1992 and the Public Service General Agreement 2008.

8. The Respondent and Applicant were unable to agree on all facets of Mr Giblett's employment history and will tender separate documents.

9. On 15 September 2009 the Respondent wrote to Mr Giblett setting out reasons why the Classification Review Committee (CRC) had determined he was ineligible for a personal reclassification.

10. In October 2009 the Respondent provided an internal appeal mechanism for additional information to be considered by the CRC. Mr Giblett elected to utilise this opportunity to appeal the Respondent's decision and lodged his appeal on 20 October 2009.

11. Correspondence of 31 December 2009 to Mr Giblett advised his appeal was unsuccessful and he was provided with all information utilised to make that determination i.e. Internal Memorandum and attachments to the Classifications Unit, advice from the Classifications Unit to the CRC and the CRC Meeting Minutes.

12. On 1 February 2010 Mr Giblett submitted an application to the WAIRC, PSA 2 of 2010, disputing the Respondent's decision of his ineligibility for a personal reclassification.

13. On 5 March 2010 the Respondent attended a conference before the Public Service Arbitrator, Acting Senior Commissioner Scott. At the conference the Respondent agreed to consider through its CRC new information supplied through PSA 2 of 2010 and any supporting evidence from Mr Giblett.

14. On 27 April 2010 the Respondent wrote to Mr Giblett and advised the unanimous view of the CRC was that he was ineligible for a personal reclassification to Level 7.

15. On 4 June 2010 Mr Giblett lodged a Notice of Discontinuance and on 17 June 2010 Acting Senior Commissioner Scott dismissed PSA 2 of 2010.

16. On 4 August 2010 the Applicant applied to the Public Service Arbitrator for a section 44 conference pursuant to sections 80E and 80G of the Industrial Relations Act 1979 (WA) advising of a dispute with the Respondent regarding the Respondent's refusal to properly classify Mr Giblett as a Level 7 officer commensurate with the classification of 4082, Assistant Superintendent Prisoner Management, at Casuarina Prison.

Contention of Parties

3         The applicant has made a number of submissions in its outline of submission as follows:

“1. The Applicant rejects the Respondent's jurisdictional arguments.

2. In particular the Applicant rejects the Respondent's arguments in relation to S 80E(7) of the Industrial Relations Act 1979 [" The IR Act"] as this matter does not pertain to a Public Sector Standard.

3. The Applicant submits that the Respondent's 'Classification Determination and Reclassification Procedures' ["the Departmental Procedures"] are inconsistent with Public Sector Commission's 'Approved Procedure 1 - Approved Classification System and Procedures ["Approved Procedure 1"]

4. The Department's Procedures state:

5.3 An employee wishing to apply for reclassification with their position must submit the following evidence with their application to the Classification Unit:

5.3.1 That they have been the substantive occupant of the position for a qualifying period of at least 12 months immediately preceding the effective date of reclassification."

5. The Public Sector Commission's 'Approved Procedure 1 - Approved Classification System and Procedures ["Approved Procedure 1"], provides that

"Whilst noting that it is the job that is reclassified not an officer, 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. A continuous period, as referred to above, may include normal and / or reasonable periods of leave (i.e.: sick leave and annual leave). "

6. The Applicant contends that the Respondent's Departmental Procedures are beyond power as Approved Procedures have the status of delegated legislation having been created under s3(2) (a) of the Public Sector Management Act 1994 [" the PSMA"].

7. Pursuant to s15 of the PSMA, the powers and duties of the Minister in relation to Approved Procedures were delegated, among other things, to the Public Sector Commission on 28 November 2008.

8. The Applicant submits that in relation to both the Departmental Procedures and the application of the Departmental Procedures, the Respondent has failed to act in accordance with s8 'General Principles of Human Resource Management' of the PSMA and s6 'Objects' of the IR Act.

9. The inconsistency between the Departmental Procedures and Approved Procedure 1 places a more onerous and restrictive requirement on employees who seek to be reclassified with their substantive position.

10. Mr Giblett's employment history, in relation to the position of Assistant Superintendent Prisoner Management, Casuarina Prison (Position Number 4082) demonstrates that:

(a) he has been in Position No 4082 and undertaking the higher level duties that warranted the reclassification of the position on numerous occasions since 17 March 2003;

(b) he performed the duties of the position for a continuous period between 10 May 2004 and 13 December 2005 which is well in excess of 12 months; and

(c) he was merit selected to the position effective 19 September 2005.

11. The Applicant submits that at all material times Mr Giblett met all the requirements of Approved Procedure 1 and will call evidence to support this contention.

12. The Applicant further submits that other employees whose positions were reclassified as a consequence of the Prison Management Work Value Review were granted personal reclassifications notwithstanding that their circumstances did not meet the requirements of the Departmental Procedures.”

4         In the respondent’s submissions, a number of issues were advanced as follows:

“1. The Respondent submits that the claim by the Applicant does not fall within the jurisdiction of Public Service Arbitrator ("the Arbitrator") as set out at s 80E of the Industrial Relations Act 1979 ("IR Act").

2. The Respondent contends that s 80E(7) of the IR Act is a restriction on the Arbitrator's jurisdiction in that the Arbitrator should not inquire into or deal with any matter under a procedure referred to in s 97(1)(a) of the PSM Act. (see Director General, Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244 per Wheeler and Le Miere JJ [35 - 44]).

3. The Respondent contends that s 80E(1) of the IR Act sets out the Arbitrator's jurisdiction which is "to enquire into and deal with any industrial matter relating to a government officer, a group of government officers or government officers generally." and in the exercise of jurisdiction the Arbitrator does not undertake a judicial review of the respondent's decision or of its decision making process (see Director General, Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244 per Wheeler and Le Miere JJ [27 - 30], and Hasluck J [167].).

4. The Respondent contends that the Arbitrator cannot issue an order in the terms sought by the applicant as the consequences of such an order would to direct the Respondent to act contrary to their obligations under s 29 and s 64 of the PSM Act (see The Minister for Education and The Director General of the Education Department of Western Australia v The Civil Service Association of Western Australian (Inc) (1997) 77 WAIG 2185 at 2187) whereby an order for the Respondent to contravene the PSM Act was quashed by the Full Bench.

5. The Respondent contends that an industrial dispute which has similar characteristics to the current application namely, the reclassification of person with a position and the interpretation of Approved Procedure One was considered and dismissed by Commissioner Wood as Arbitrator. (see The Civil Service Association of Western Australia Incorporated v The Director-General, Department of the Attorney General.  (2008) WAIRC 00872 [20, 22-27].)

6. The Respondent contends that the Arbitrator is prevented from enquiring into and dealing with this industrial matter on the grounds that the Notice of Application does not dispute the reclassification of the position nor does it claim that Mr Giblett has been unfairly treated. Instead, the grounds for the Application concern the decision of the Respondent to not apply the benefit of a personal reclassification which is not in keeping with the requirements of S 80E (2) (a) of the IR Act. (see Marie-Helene Mallet v Dept. of Consumer and Employment Protection (2009) WAIRC 00344 [7. 10])

7. The Respondent contends that it has complied with the overall intent and construction of the Public Sector Management Act 1994 and its subsidiary legislation of Approved Procedure One in making the decision not to provide the benefit of a personal reclassification to Mr Giblett. (see The Civil Service Association of Western Australia Incorporated and Director-General, Department for Child Protection and Minister for Commerce (2010) WAIRC 00206 [99].

8. The Respondent contends that it is not in the public interest and an inappropriate use of Public Resources to re run the same matter which was listed as PSA 2 of 2010 and discontinued. (see WA Police Union of Workers and Western Australian Police Service (2004) WAIRC 11803.)”

Jurisdiction

5         The respondent submitted that by reason of s 80E(7) of the Act, the Arbitrator has no jurisdiction to inquire into and deal with the present matter.  There is no doubt that whilst the Arbitrator’s jurisdiction is very broad, s 80E(7) is a limitation on it, such that certain matters fall outside of jurisdiction.

6         Section 80E(7) is in the following terms:

“(7) Notwithstanding subsections (1) and (6), an Arbitrator does not have jurisdiction to enquire into or deal with, or refer to the Commission in Court Session or the Full Bench, any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.”

7         In turn, s 97(1) of the Public Sector Management Act 1994 (“the PSM Act”) provides as follows:

“97. Functions of Commissioner concerning relief in respect of breach of public sector standards

(1) The functions of the Commissioner under this Part are — 

(a) to make recommendations to the Minister on the making, amendment or repeal of regulations prescribing procedures, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of public sector standards;

(b) to appoint persons for the purpose of implementing procedures referred to in paragraph (a); and

(c) to monitor the operation of procedures referred to in paragraph (a).”

8         It is plain from the language of s 80E(7) of the Act, when read together with s 97(1)(a) of the PSM Act, that the subject matter of s 80E(7), and in turn the limitation on the Arbitrator’s jurisdiction, are “matters” in relation to the breaching of public sector standards, in respect of which a procedure that may provide for an appeal, review, conciliation, arbitration, mediation or otherwise, has been prescribed.  It is the general “matter” that precludes jurisdiction of the Arbitrator, not any particular allegation of breach:  Director General Department of Justice v Civil Service Association of Western Australia Incorporated (2005) 86 WAIG 231.

9         A public sector standard is an instrument made by the Public Service Commission under s 21(1)(a) of the PSM Act.  Whilst since the decision taken by the respondent in relation to Mr Giblett the terms of s 21(1) have been amended by the Public Sector Reform Act 2010, the relevant provisions in issue have not fundamentally changed.

10      Additionally, and for the purposes of dealing with the present matter, by s 3(2) of the PSM Act prior to the recent amendments, the responsible Minister was empowered to approve in writing “any procedure or classification system”.  Approval was formerly defined in s 3 of the PSM Act as a procedure or classification system “for the time being approved under subsection (2)”.

11      By s 15 of the PSM Act, which is now repealed, the powers of the Minister in the former s 3(2) were delegated to the Public Sector Commission by instrument of delegation dated 28 November 2008.  A copy of the instrument of delegation was tab 2 in exhibit A1.

12      In my opinion, for the following reasons, in this matter the jurisdiction of the Arbitrator is not ousted by s 80E(7) of the Act.

13      The judgement of the Industrial Appeal Court in Department of Attorney General is distinguishable from the present case.  In this matter, the substantial issue is the operation and effect of what is called the “Approved Procedure 1 – Approved Classification System and Procedures” (“Approved Procedure 1”). This instrument was made by the Public Sector Commission effective 1 February 2009 pursuant to the delegation by the responsible Minister.

14      As the relevant “matter” in this case concerns the respondent’s decision to not grant a “personal reclassification” to Mr Giblett under Approved Procedure 1, and does not concern any matter of the breaching of a public sector standard, then the prohibition on the jurisdiction of the Arbitrator does not arise.

15      The next limb to the respondent’s argument as to jurisdiction or power was to the effect that the jurisdiction of the Arbitrator does not extend to a form of judicial review of the action of the respondent.  Whilst it was not clear on the respondent’s submissions how it is that the exercise of discretion by the respondent to not reclassify Mr Giblett would involve a “judicial review”, I do not disagree with the submissions made in relation to the general principles.

16      As was concluded by the Court in Director General Department of Justice by Wheeler and Le Meire JJ at 234-236 and by Hasluck J at 246, the Arbitrator’s jurisdiction does not extend to bare declarations of right or powers in the nature of judicial review.  The powers of an Arbitrator in dealing with an industrial matter are dealt with in s 80E(5) of the Act and extend to the review, nullification, modification or variation of a decision of an employer.

17      This is not to say of course, that in dealing with an industrial matter under s 80E(1) of the Act, the Arbitrator may not form a view as to whether the conduct or action of an employer or employee, is unlawful or otherwise affected by legal error, in deciding the appropriate remedy under s 80E(5).  If the Arbitrator adopts this approach in the current matter that does not mean the Arbitrator is engaging in judicial review in the accepted sense.

18      I therefore see no barrier to the Arbitrator’s jurisdiction or power in this matter on such a ground.

19      The respondent also contends that the grant of an order as sought by the applicant will have the effect of requiring the respondent to act contrary to its obligations under ss 29 and 64 of the PSM Act.  In this regard the respondent relies on a decision of the Full Bench of the Commission in The Minister of Education and the Director General of the Education Department of Western Australia v The Civil Service Association of Western Australia (Inc) (1997) 77 WAIG 2185.

20      In Minister for Education the issue arising on the appeal was the exercise of the Arbitrator’s power to order the employer to appoint employees engaged on temporary contracts, as permanent appointments, despite the terms of s 64(1) of the PSM Act.  Section 64(1) enables an employing authority to appoint persons as public service officers, subject to approved procedures.

21      It was held by the Full Bench that the Arbitrator’s order in that case, had the effect of compelling the employer to act contrary to its obligations under s 64 of the PSM Act and was an invalid exercise of power.

22      That is not the effect of the proposed order in this case.  The applicant does not seek the appointment of Mr Giblett contrary to the terms of s 64(1) of the PSM Act.  On the contrary, the applicant seeks an order, as I apprehend it, that the respondent comply with Approved Procedure 1, in granting Mr Giblett a personal reclassification.

23      I do not therefore consider the matter decided in Minister for Education as being applicable to the circumstances of the present case.

Approved Procedure 1 and Consistency

24      A central plank of the applicant’s case was that the respondent’s procedures for dealing with reclassification of positions and personal reclassifications are inconsistent with the terms of Approved Procedure 1. To this extent, the applicant submitted that the respondent’s procedures are invalid, by reason of the terms of Approved Procedure 1 having the status of delegated legislation.

25      The relevant parts of Approved Procedure 1 for present purposes are the “Introduction, Objective, and Reclassification of the Substantive Holder of a Reclassified Job”.  They provide as follows:

26      The respondent has adopted a Policy and Procedure in relation to reclassification set out in tabs 4 and 5 of exhibit A1.  The Policy of the respondent refers to the principles of the PSM Act and Approved Procedure 1 and in particular, “without limiting and subject to meeting all of the requirements of Approved Procedure 1.”
 

27      The relevant part of the respondent’s Procedures is cl 5 dealing with “reclassification of the person with the position”.  It relevantly provides as follows:

“5. Applications of Reclassification of the Person with the Position

5.1. The Department's policy is that, without limiting the operation of Approved Procedure 1, reclassified positions must be filled through open merit selection after being cleared through the internal and external redeployment process in the majority of cases.

5.2. In exceptional circumstances, a business area may wish to forgo the merit selection process and submit an application for an employee to be reclassified with the position.

5.3. An employee wishing to apply for reclassification with their position must submit the following evidence with their application to the Classification Unit

5.3.1. that they have been the substantive occupant of the position for a qualifying period of at least 12 months immediately preceding the effective date of reclassification

5.3.2. that they have been continuously in the role during the qualifying period

5.3.3. that they have undertaken the increased work value duties that warranted the reclassification of the position during the qualifying period.  The applying officer's manager will be required to certify that this requirement has been satisfied

5.3.4. that they attained their current substantive classification through merit selection

5.3.5. that they have performed the duties which led to the reclassification of the position in a consistent and satisfactory manner and

5.3.6. that they have not been the subject of a sub standard performance process.

5.4. The Classification Unit will perform an assessment of the application, and forward the application, with their recommendation, to the CRC for final assessment.

5.5. The CRC will assess the application, and forward the application with the CRC recommendation to the Commissioner for consideration.

5.6. Upon approval by the Commissioner, the application is returned to the Classification Unit for registration on the database and referral to appropriate officers within the HR Service Centre, Department of the Attorney General (HR Service Centre) for processing.”

28      As noted in the applicant’s outline of submission above, the contention put is that the respondent’s Policy and Procedure puts an impermissible gloss on Approved Procedure 1, to the extent that it requires the employee seeking a personal reclassification to have been the substantive occupant of the reclassified position for a period of 12 months “immediately preceding” the effective date of reclassification.  It is also contended that the requirement that the person be “in the position” does not mean the substantive position, but can include periods of acting in a position.

29      It is also the case, as a matter of interpretation, that the terms of Approved Procedure 1 and the respondent’s Policy and Procedures, must be considered in the context of the relevant provisions of the PSM Act, in particular ss 8(1)(b) and (c) which require human resources management principles to be applied free of nepotism, patronage, arbitrary or capricious acts and consistently.

30      The PSM Act in s 9 also, somewhat curiously, requires public sector bodies and employers to comply with their obligations under the Act and these laws.  One would have thought this to naturally follow, given all citizens of the State are subject to laws validly made by the sovereign Parliament.  This provision, along with some of the terms of s 8 of the PSM Act, were considered and commented on in Director General Department of Justice, above.

31      A central limb to the applicant’s attack on the respondent’s Policy and Procedure, is that Approved Procedure 1 “is a procedure” approved under the terms of s 3(2)(a) of the PSM Act (now repealed) by the Public Sector Commission as a delegate of the responsible Minister, and has the status of delegated legislation.

32      The question as to whether a particular instrument seemingly made or given lawful effect under an Act is delegated or subordinate legislation is not entirely straight forward.

33      As a matter of general principle, delegated legislation is a convenient general description for a legislative instrument made by a body which (or a person to whom) the power to legislate has been delegated.  This description necessarily involves two things:  first, a form of delegation; and second, instruments that can be described as “legislation” or as being “legislative” in effect: Pearce and Argument “Delegated Legislation in Australia” Second Ed para 1.1.

34      The definition of “subsidiary legislation” in s 5 of the Interpretation Act 1984 is in similar terms.

35      Whether an instrument is properly described as “legislative” usually involves a consideration of whether the instrument sets out general rules as to conduct or the exercise of powers, or whether it deals within the application of such rules to particular circumstances: Commonwealth v Grunseit (1943) 67 CLR 58, Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260; Lattitude Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 110 ALR 209.

36      Noticeably, by s 41 of the Interpretation Act, in cases where a written law authorises the making of subsidiary legislation, all such subsidiary legislation is to be published in the Gazette and, subject to s 42 of the Interpretation Act, comes into effect on the date of publication or some later day as in the instrument.   There was no suggestion that Approved Procedure 1 was gazetted.

37      By s 42 of the Interpretation Act, subsidiary legislation in the form of regulations, (which includes rules, local laws and by-laws), are to be laid before each House of the State Parliament and are subject to a disallowance motion.

38      By s 21(1) of the PSM Act, the Public Sector Commissioner may make public sector standards and codes of ethics.  By s 21(3) each public sector standard and code of ethics is to be published in the Gazette.  Additionally, by s 21(7) of the PSM Act, s 42 of the Interpretation Act applies to a public sector standard and a code of ethics, as if they were regulations for the purposes of that section.

39      Thus, the only instruments made under the PSM Act that seem to be subject to Part VI of the Interpretation Act dealing with subsidiary legislation, are public sector standards and code of ethics. Approved procedures or classification systems, approved under the former s 3(2) of the PSM Act, are not so classified, on a plain reading of the PSM Act and the Interpretation Act.

40      In view of this, the question therefore is can Approved Procedure 1 be properly accorded the status of delegated legislation?  In my opinion, given the foregoing, this may be open to question. There are however, functional categories of subsidiary legislation in the form of “administrative quasi-legislation”, constituted as notes, codes of conduct, guidelines and administrative instructions made for the purposes of the administration of statutory schema.  Such delegated legislation is often not subject to Parliamentary scrutiny:  Pearce and Argument para 1.12-1.17.  Approved Procedure 1 may fall into this category.

41      Regardless as to whether the true character of Approved Procedure 1 can be regarded as legislative, by s 29(1)(h)(ii) of the PSM Act (as it was), a chief executive officer or chief employee was obliged to comply with it in relation to matters of classification and remuneration of employees of a department or organisation constituted under the PSM Act.

42      This means that it is to the terms of Approved Procedure 1 that attention must be paid, for the purposes of determining the process to apply in classifying a position and considering the exercise of discretion to grant a personal reclassification to an employee.  This is because the obligation under the PSM Act, is to apply the terms of Approved Procedure 1, as made under the former s 3(2)(a) of the PSM Act.

43      It is to be noted that the respondent’s Policy in relation to reclassification of a person within a position, is largely reflective of the relevant provisions of Approved Procedure 1.

44      However, an examination of the respondent’s Procedure in relation to this issue, as set out above, reflects a departure from the terms of Approved Procedure 1, in requiring an applicant for a personal reclassification to have been in the reclassified position and performing the higher duties for a period of at least 12 months “immediately preceding the effective date of reclassification”.  The employee is also required to establish that they were continuously in the position within that 12 month period.

45      In my view, there are several difficulties with the respondent’s Procedure relevant to the disposition of the present proceedings.

46      First, contrary to the terms of Approved Procedure 1, which a chief executive officer was obliged by s 29(1)(h)(ii) of the PSM Act to comply with, the respondent’s Procedure requires an applicant for personal reclassification, to have been performing the higher duties for the 12 months immediately preceding the effective date of the reclassification. Nowhere in the terms of Approved Procedure 1, on its ordinary and natural meaning, is reference made to such a 12 month period or to a date of reclassification.  Whilst there was some reference by the respondent to advice proved to it by the responsible government agency about the intent of Approved Procedure 1, it is to its text that one must turn to ascertain its meaning.

47      It seems to me that the date of reclassification is an administrative matter, by which through the internal processes of a department, a decision is made to reclassify a position.  However, under the terms of Approved Procedure 1 it concerns itself with an officer having been “undertaking the higher level duties that warranted the reclassification of the position, for a continuous period of 12 months”.

48      As a matter of construction, from the plain language of its terms, what is an essential ingredient of Approved Procedure 1, is an assessment of the period of time over which the higher duties requirements of a position have been in place and secondly, within that period, an applicant for reclassification has been continuously (subject to leave taken) performing those duties for a least 12 months.

49      In my view, any departure from this requirement, is inconsistent with the terms of Approved Procedure 1 and inconsistent with the requirements imposed by the former s 29(1)(h)(ii) of the PSM Act.

50      Of course, assuming for present purposes that Approved Procedure 1 has the status of delegated legislation, as being a form of “quasi-legislation”, then the conclusion that the terms of the respondent’s Procedure is contrary to, and outside the permissible scope of Approved Procedure 1, for the purposes of assessing personal reclassification claims, is reinforced.

51      Given that the terms of Approved Procedure 1 in relation to personnel reclassifications plainly involve the exercise of discretion by a CEO of a department or organisation, the onus is on the applicant to establish that the exercise of the discretion, in this case, should be overturned.

52      With all of the foregoing in mind, I now turn to consider the evidence.

The Evidence

53      The principal witness for the applicant was Mr Giblett.  Much of Mr Giblett’s employment history was not contentious and was set out at tabs 5 and 6 of exhibit A1.

54      Mr Giblett commenced with the respondent in July 1990 as a prison officer.  In March 2003, Mr Giblett was appointed as Acting Superintendent Prisons Incidents at Level 6.  He continued to act in these senior positions until he was substantively appointed to the position of Assistant Superintendent Prisoner Management in September 2005.  From that time, Mr Giblett has undertaken other roles for various periods of time including Assistant Superintendent Special Units, and Assistant Superintendent Prisoner Management (Training), where Mr Giblett was on a selection panel for the appointment of Senior Prison Officer positions across the State.

55      Late in 2006, Mr Giblett was appointed to a Project Co-ordinator position to work on female adult custodial issues.  From January 2007 to January 2009 Mr Giblett occupied a secondment position in human resources.  From January 2009, he returned to his substantive role as Assistant Superintendent Prisoner Management at Casuarina, but in a supernumerary position, pending resolution of reclassification appeals.

56      It was not in issue that Mr Giblett has performed very well in all positions he has occupied.  This good performance in the Assistant Superintendent position was confirmed in the testimony of Ms Lehman, a former Deputy Superintendent, and Mr Lawler, the Deputy Superintendent at Casuarina Prison.

57      Evidence from Mr Giblett and Ms Lehman was to the effect that whilst the effective date of the reclassification of the Assistant Superintendent’s position was January 2009, Mr Giblett has performed the higher duties associated with the role since early 2003, when he first commenced in an acting capacity.  Additionally, the evidence of Ms Lehman and Mr Lawler, and also Mr Giblett himself, was that the various JDF’s for the position, as set out at tab 15 in exhibit A1, has not changed fundamentally since in particular, about 2004-2005.  Rather, the changes have been gradual over time, and the JDFs have reflected a refinement of the responsibilities of the position.

58      In summary, it was Mr Giblett’s evidence that since mid 2004 to December 2005, he had been acting in the Assistant Superintendent’s position and performing the higher duties associated with the position.  He was then merit selected into the position effective 19 September 2005.  Accordingly, it was Mr Giblett’s evidence that he had been performing those duties and responsibilities for at least some 19 continuous months to that point.

59      Thereafter, on Mr Giblett’s testimony, in the other positions to which he was seconded in the period from about the end of 2005 to the middle of 2009, he was in positions that had either a direct or indirect linkage to the responsibilities of his substantive office of Assistant Superintendent Prisoner Management.

60      Additionally, it was Mr Giblett’s evidence that there had been a longstanding custom and practice that senior officers seconded from prison management to head office in Perth would not be subject to disadvantage.

61      In relation to the exercise of the discretion given to a CEO under Approved Procedure 1, evidence was led from Mr Johnson, the current Superintendent at the Greenough Regional Prison, who has been in that position since 1998.

62      The position occupied by Mr Johnson was also affected by the work value review resulting in the reclassification of Assistant Superintendents and Superintendent positions.  He testified that by reason of an extended period of absence from his position, he was deemed ineligible to be the subject of a personal reclassification under the respondent’s Procedures.  Mr Johnston lodged an internal appeal which was refused.  He ultimately sought the exercise of discretion by the respondent’s CEO Mr Ian Johnson, who granted him a personal reclassification.

63      Reference was also made to another case of personal reclassification involving Mr Smith, the Assistant Superintendent Prisoner Management for the Bunbury Regional Prison, who, while not satisfying the 12 month eligibility criteria, also obtained a personal reclassification.

64      The process undertaken in relation to the Prison Management Work Value Review, and the specific situation with Mr Giblett, was dealt with in the testimony of Ms Maher, a Senior Human Resources Officer within the respondent.

65      Ms Maher testified that the respondent operated in accordance with the terms of the PSM Act, and adopted the elements of Approved Procedure 1 into the respondent’s Policy and Procedures regarding the classification and reclassification process.  This was done in conjunction with advice from the Public Sector Commission.

66      As to the specific situation of the Assistant Superintendent Prisoner Management positions, Ms Maher outlined the starting point for the work value review was July 1998, the last time the position was assessed for work value. As a consequence of this process, there were a number of changes in work value that were assessed as warranting a reclassification of the position from Level 6 to Level 7.  In summary, those changes were:

(a)                       Increased involvement in the strategic leadership, planning and direction of the Prison;

(b)                       Increased requirement to report on, monitor and review operational compliance through a recently created internal governance division and legislatively enacted external governance provisions;

(c)                       Reporting on benchmark and performance indicators relevant to prisoner management through service level agreements between the Department and the Prison (service level agreements were later withdrawn and replaced with a different reporting system);

(d)                       Increased prisoner numbers and its inherent requirement for day-to-day consideration, decision making and management as it relates to prisoner and staff safety and well being, including the specific issues of accommodation, prisoner-staff interaction, risk, availability of constructive activity and prisoner services;

(e)                       Heightened community sensitivity to the management of Prisons, linked to the serious incidents which lead to the Mahoney Inquiry, creating a greater need to positively represent the strategic objectives of the Prison and Department to external groups for the purpose of building community confidence;

(f)                        Management of prisoner grievances which has been impacted through an increased awareness by prisoners and their families of their rights and an increased availability of complaint mechanisms.  The resultant requirement has been to develop formal communications addressing complaints raised, resolve conflicts and instigate remedial action such as alteration to local operational policy and procedures;

(g)                       Introduction and enhancement of systems to monitor prisoners and associated risks;

(h)                       Introduction and enhancement of an array of strategies concerning prisoner management, for example, suicide prevention, anti-bullying, unit management, sexual predators and culturally appropriate services to the over represented Aboriginal population; and

(i)                         Changed reporting relationships and positions controlled.

67      As a consequence of these conclusions, the effective date of the reclassification was 27 January 2009, the time at which a management initiated request was made to the classification unit.

Consideration

68      From the foregoing analysis, and for the following reasons, in my view, there are substantial departures in the respondent’s Procedures from Approved Procedure 1, in relation to the process of personal reclassification.

69      The principles in relation to the interpretation of instruments are well settled.  The process of interpretation, on the strength of recent High Court authority, is essentially text based, whilst having due regard to the context and purposes of the particular provisions: “The Intolerable Wrestle: Developments in Statutory Interpretation" Hon JJ Spigelman AC (2010) 84 ALJ 822 (See the cases cited therein).  For present purposes, the focus is on the text of the requirements of Approved Procedure 1 in relation to reclassifications of employees within a position.

70      There can be no doubt from its plain language that the capacity of an employee to be granted a personal reclassification is discretionary, by the use of the word “may”.

71      The exercise of that discretion is subject to the conditions as set out in the clause itself. The first of these conditions is that the employee concerned be the substantive occupant of a job.  That is, that the person has been merit selected for the position.  The second condition, is compliance with s 8(1)(b) and (c) of the PSM Act, which have been referred to above.  The third condition is that the employee has been “in the position”. The fourth is that the person has “undertaken the higher level duties … for a continuous period of 12 months”.  This latter condition includes any reasonable periods of leave.

72      To the extent that the respondent’s Procedures impose greater restrictions upon an employee accessing a personal reclassification than the provisions as set out in Approved Procedure 1, then in my opinion, they need to be read down.  This is consistent with the scheme of provisions of the PSM Act, in particular at the material time, s 29(1)(h)(ii) requiring a CEO to deal with classification and remuneration issues “in accordance with” classification systems and procedures approved by the Minister under the provisions of the former s 3(2)(a) of the PSM Act.

73      Whilst such phrases need to be interpreted in context, as a general proposition, an obligation on a decision maker to act “in accordance with” a particular thing, does not permit a departure from it, and in some contexts, may require stringent adherence: Collins v Repatriation Commission  (1994) 33 ALD 557; Re LA (1993) 41 FCR 151.

74      In the present circumstances, to permit a substantial departure from the terms of Approved Procedure 1 may constitute an injustice and be contrary to the principles of human resource management that the respondent is, by s 8 of the PSM Act, required to apply.

75      In this case Mr Giblett was at the material time and is the substantive occupant of the position of Assistant Superintendent, Prisoner Management at Casuarina Prison. In my opinion, it is imposing a gloss on the terms of Approved Procedure 1, in accordance with its plain language, to require a person seeking a personal reclassification, to establish they have been the substantive occupant of the position for the required period.  This is inconsistent with the language of the provisions which only require the person to have been “in the position”.   On its ordinary and natural meaning the clause does not say “in the substantive position” or “the substantive occupant of the position” in relation to the undertaking of the higher level duties. 

76      I see no reason in principle, consistent with the language of the clauses as a whole, to exclude a person from consideration of personal reclassification, merely because they may have been acting “in a position”, in this particular case, for some years, performing the higher level duties. This is as long as the employee, at the time of seeking a personal reclassification, “is the substantive occupant of the position”.   Plainly, persons who have only acted in a position are not entitled to seek a personal reclassification.  This approach to interpretation gives rise to no absurdity or repugnancy within the provision as a whole.

77      To adopt the more restrictive approach could mean that a person who has been acting in a position effectively for some years and performing higher level duties, and who, a few months prior to a position reclassification, is substantively appointed to a position, would be denied the opportunity for consideration of a personal reclassification.  This has the potential to be unfair.

78      In this case, Mr Giblett has been “in the position” of Assistant Superintendent, Prisoner Management, in an acting capacity, over the continuous period from at least May 2004 to December 2005.  Given all of the evidence, in relation to the various JDF’s, the work undertaken by Mr Giblett, and the evidence of Ms Maher that the work value review took place from 1998, I am satisfied that Mr Giblett has, over this period, undertaken the higher level duties that warranted the reclassification of the position.

79      As for the evidence of the work undertaken by Mr Giblett in other positions, such as that relating to the selection panel for appointment of senior officers, the work done in relation to female custodial issues; and the project work in human resources, I am not persuaded that this can be taken into account for the purposes of Approved Procedure 1.  To do so would be inconsistent with the very case put by the applicant itself, to the effect that the Procedures of the respondent cannot be inconsistent within Approved Procedure 1.

80      By this I mean that on its proper interpretation, Approved Procedure 1, in referring to “in the position”, means either acting in or being the substantive occupant of the position that has been reclassified.  The terms of the clause does not permit, in my view, a person to be in another “position”, albeit performing some duties analogous to the reclassified position, and having that “allied” work taken into account.  To do so, would be, again, to substantially depart from the terms of Approved Procedure 1, a course which was impermissible under the then s 29(1)(h)(ii) of the PSM Act.

81      However, the foregoing conclusion does not necessarily mean the applicant is entitled to succeed in its application.  The applicant still needs to establish on balance that the exercise of the discretion should be in Mr Giblett’s favour, consistent with s 8(1)(b) and (c) of the PSM Act, such that in accordance with s 26(1)(a) of the Act, the Arbitrator should intervene.

82      As to the issue of fairness and consistency, I have regard to the evidence in relation to Mr Johnson and Mr Smith, both of whom received personal reclassifications despite not meeting the requirements of the respondent’s Policy and Procedures.  In both of those cases, the uncontested evidence is that both of those senior officers did not meet the respondent’s criterion of being in their respective positions for 12 months immediately preceding the reclassification effective date. 

83      In all of the circumstances of the present case, I consider that it would be unfair to deny Mr Giblett the benefit of a personal classification from Level 6 to Level 7.  In my opinion, not only does Mr Giblett meet the requirements of Approved Procedure 1, the evidence is that on his return to the Assistant Superintendent, Prisoner Management position at Casuarina, he has resumed the responsibilities of that position without any loss of skills and has performed well in the role.

84      Accordingly there will be an order in the applicant’s favour.