DISPUTE RE FIXED TERM CONTRACTS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2016 WAIRC 00902

DELIVERED : WEDNESDAY, 30 NOVEMBER 2016

FILE NO. : PSACR 25 OF 2015

Applicant

AND

DIRECTOR GENERAL, HOUSING AUTHORITY

Respondent

CatchWords : Industrial Law (WA) - Jurisdiction of the Public Service Arbitrator - Whether an 'industrial matter' exists - Whether Arbitrator has power to make deeming orders - Whether orders sought vary an agreement - Whether jurisdiction is excluded - Whether orders sought are in the public interest - Whether the application is premature

Legislation : Industrial Relations Act 1979 (WA) s 7, s 44, s 80E(5), s 80E(7)

  Public Sector Management Act 1994 (WA) s 64, s 64(4)

  Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA)  

Result : Matter to be listed for hearing

Representation:

Applicant : Mr M Shipman (of counsel) and Mr W Claydon (of counsel)

Respondent : Mr R Andretich (of counsel)

Cases referred to in reasons:

Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Burswood Resort (Management) Ltd [2002] WAIRC 05952; (2002) 82 WAIG 2112

Australian Railways Union of Workers, West Australian Branch v Western Australian Government Railways Commission (1996) 76 WAIG 2880

Civil Service Association of Western Australia Incorporated v Director General, Department of Agriculture [2004] WAIRC 11714; (2004) 84 WAIG 2251

Civil Service Association of Western Australia Incorporated v Director General, Department of Justice [2004] WAIRC 12338; (2004) 84 WAIG 2877

The Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia – Western Australian Branch v Homeswest (1995) 75 WAIG 2872

Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231

The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc) [2004] WAIRC 13765; (2005) 85 WAIG 629

Electrolux Home Products Pty Ltd v The Australian Workers’ Union [2004] HCA 40; 221 CLR 309

The Minister for Education v The Civil Service Association of Western Australia (Inc) (1997) 77 WAIG 2185

Moreno v Serco (Australia) Pty Ltd (1995) 75 WAIG 3068

Re Cram; Ex parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117

RGC Mineral Sands Ltd v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch [2000] WASCA 162; (2000) 80 WAIG 2437

Waring v Workcover WA [2010] WAIRC 00914; (2010) 90 WAIG 1664

Reasons for Decision

Background

1         On 23 October 2015 the Civil Service Association of Western Australia Incorporated (CSA) filed an application for a conference under s 44 of the Industrial Relations Act 1979 (WA) (IR Act), relating to a dispute about the Housing Authority’s practice of employing public service officers on fixed term contracts.

2         The parties did not settle the matter at conferences held before Public Service Arbitrator (Arbitrator) Acting Senior Commissioner Scott.  The matter was referred for hearing and determination on 21 June 2016.  It was reallocated to my chambers on 21 June 2016 and the Memorandum of Matters Referred for Hearing and Determination (Memorandum) was amended on 14 July 2016.

3         The Housing Authority objects to me hearing and determining these matters.

4         The parties agreed to deal with the Housing Authority’s objections before any substantive hearing.  A hearing was held on 13 October 2016 and the parties filed further written submissions after the hearing. 

The Memorandum

5         The Memorandum states:

The applicant is in dispute with the respondent over the respondent’s practices in its employment of officers under fixed term contracts.  It says those practices are arbitrary and unfair.  It says that: 

1. (i) the respondent employs public service officers (the officers) on fixed term contracts for reasons not contemplated by clause 8(5) Public Service Award 1992 (Award) and clause 15 Public Service and Government Officers General Agreement 2014 (Agreement); and

(ii) in its application of cl 7.1 of the Commissioner’s Instruction No. 2 Filling a Public Sector Vacancy (CI2), the respondent has created a mischief which denies the officers the opportunity to seek permanent appointment. 

Particulars

2. The practices, amongst other things, result in the officers being engaged on rolling contracts of a short duration, which accumulate to exceed the 12 month threshold in CI2, cl 7.1(c), yet the officers are denied the opportunity of having their request for consideration to a permanent appointment assessed.

3. The practices include but are not limited to:

(a) Not referring to the possibility of permanency in either an Expression of Interest or an external advertisement, yet continuing to award contracts to the same officer for extended periods which can result in the contractor exceeding the two year threshold in CI2, cl 7.1(c);

(b) Employing the officers beyond the two year threshold at CI2;

(c) Not conducting a competitive merit selection process for the initial appointment;

(d) Not engaging in a performance management process with the officers;

(e) Not undertaking an individual assessment of merit;

(f) Not filling a vacancy with a permanent appointment of an incumbent officer or another suitable officer when the substantive occupant has permanently vacated the position and funding remains in place for the appointment, but rather making an appointment by offering a further fixed term contract.

Contentions

4. The respondent’s practices have denied the applicant’s members a workplace right.

5. The respondent justified the practices on the basis that: 

(a) It was undergoing a review.  This was not a valid justification given the ‘review’ was ill defined and did not have any end date.  Also, many of the officers have been employed for years at a time well beyond any short or medium term of a ‘review’.  The respondent subsequently resiled from this explanation.

(b) The Government of Western Australia’s recruitment freeze until 30 June 2016, which prohibited any appointment to a permanent position in the public sector.  This justification is not valid because the respondent is not bound by the recruitment freeze, but has chosen to voluntarily abide by the policy.  The recruitment freeze is immaterial to the relief it seeks in the application. 

6. The applicant seeks orders to create a new workplace right for officers employed pursuant to cl 8(5) of the Award and cl 15 of the Agreement and CI2, cl 7.1 that:

(a) the officers listed below be deemed to have satisfied the relevant considerations in cl 7.1; and

(b) if a vacancy or similar vacancy is identified in the respondent, the respondent may exercise the CEO’s discretion and will, if it decides a permanent position is required, assess the employees described at 6(c) when contemplating making a permanent appointment; and

(c) those officers are: 

Ms Emily Dickinson

Ms Pau Lin Liew

Ms Natasha Buck

Mr Cliff Goncalves

Mr Michael Rye

Mr William Peng

Mr Christopher Lees

Ms Dianne McCambridge

Ms Andra Biondi

Ms Julie Rodriguez (Tremain).

7. That for all future fixed term contracts, the respondent comply with the following: 

(a) For any fixed term contract

(i) under six months’ duration must include a statement in the original advertisement for the contract, as to whether or not there is the prospect of appointment to a permanent position; 

(ii) which has the possibility of appointment to a permanent position must be advertised in accordance with s 64(4) of the Public Sector Management Act 1994 (WA) (the PSM Act);

(iii) must include a competitive merit selection process.

(b) Any notice of appointment to a fixed term contract must include in the terms and conditions of the contract a statement as to whether or not there is the possibility of appointment to a permanent position. 

(c) For any fixed term contract, in the event that an appointment to a permanent position does not occur within two years of the date of the original advertisement and the position is still required, the position must be re‑advertised in compliance with s 64(4) of the Public Sector Management Act 1994 (WA) at the cessation of the current contract. 

(d) Any officer on a fixed term contract, where there is the possibility of appointment to a permanent position and the contract has or contracts have exceeded 12 months in aggregate, must be subject to a performance management process before the cessation of the current contract or before two years from the date of the original advertisement, whichever is the sooner. 

(e) The respondent must conduct an individual assessment of merit of a the [sic] officer prior to a permanent appointment being made; and

(f) Such other orders as the Public Service Arbitrator thinks fit.

The respondent says that:

1. Its practices in the use of fixed term contracts of employment comply with its obligations. 

2. Its use of fixed term contracts is legitimate and consistent with the provisions of clause 8(5) of the Award and clause 15 of the Agreement.  Any inconsistencies that were highlighted have now been resolved. 

3. Allegations of non‑compliance with the provisions of the Award or Agreement are exclusively within the jurisdiction of the Industrial Magistrate.

4. A full review of fixed term contracts has been undertaken.

5. An extensive review of employment practices associated with the application of CI2 has been undertaken and as a result, its employment practices are consistent with the provisions of the PSM Act, the Commissioner's Instructions and the Award and the Agreement. 

6. The applicant’s claim of the denial of an existing workplace right and seeking a new workplace right are inconsistent.  The applicant fails to provide clarity or offer a basis for either claim.

7. The creation of a new workplace right would involve a variation to the Award and/or the Agreement which settled the industrial matters dealt with.  Clause 7.2 of the Agreement provides there would be no further claims concerning conditions of employment except as provided.  Therefore:

(a) The application is contrary to clause 7.2 of the Agreement and the respondent does not consent to a variation of the Award or Agreement to include a new workplace right.

(b) The applicant seeks to amend or vary an industrial instrument and/or Commissioner's Instruction, which are outside of the respondent’s scope of authority and sphere of influence. 

(c) The respondent is not the appropriate respondent to a claim for the amendment or variation of CI2.  The making of the Commissioner's Instruction involves the exercise of a statutory function by the Public Sector Commissioner.

8. Where the applicant seeks orders that the employees named be automatically deemed to have met the relevant criteria for permanent appointment as set out in part 7.1 of CI2, the employees named and likely to be affected by the orders sought either do not satisfy the provisions of s 64(4) of the PSM Act or meet the criteria of part 7.1 of CI2, or have either;

- gained permanent appointment by way of part 3.1 and 3.2 of CI2;

- have [sic] been offered permanent employment and have declined the offer; or

- meet [sic] the criteria for consideration for permanent appointment but there are no suitable available vacancies.

9. It opposes the orders sought to the extent that any such orders would by effect, place the respondent in a position of non-compliance with the PSM Act and the Commissioner's Instructions.

10. Appointment under section s 64 of the PSM Act is subject to compliance with relevant Commissioner's Instructions and cannot be deemed collectively.  An appointment based upon deemed compliance when in fact there is noncompliance would be invalid.

11. Where the orders sought would affect terminology contained in its position advertisements and extend to the contractual terms contained in its fixed term contracts of employment:

(a) The orders sought do not constitute an industrial matter as defined by s 7 of the Industrial Relations Act 1979;

(b) In any event, the respondent objects to being constrained by way of the wording that is included in position advertisements.  The wording of position advertisements should be determined on a case by case in accordance with the circumstance and nature of the vacancy; 

(c) Pursuant to s 64 of the PSM Act and CI2, employing authorities have the right to determine when a vacancy is to be filled and by what mode of employment.  The decision on how to advertise a vacancy rests with the employing authority and should not be interfered with; and

(d) A fixed term appointment does not carry with it any presumption of or right to a permanent appointment and as such, no reference to the possibility or not of permanency should be required to be included in a fixed term contract of employment.  An employee accepting an offer of fixed term employment is taken to have agreed that the arrangement will naturally expire according to its terms.

12. The application proceeds upon the misconception that part 7 of the Commissioner's Instruction provides an employee right.  Rather, it is intended to simply inform the content of the requirement of s 64(4) of the PSM Act in that, a fixed term officer cannot apply for a permanent appointment ‘unless the vacancy has first been advertised in accordance with the Commissioner's Instructions’.

13. The respondent seeks that the matter be dismissed.

The Housing Authority’s submissions

6         The Housing Authority filed three sets of written submissions and made oral submissions at the hearing.  It objects to me hearing and determining these matters for the following reasons.

Deeming

7         The Housing Authority argues that the Arbitrator has no power to make orders deeming certain employees have satisfied the requirements in clause 7 of the Commissioner’s Instruction No. 2 (CI2).

8         The Housing Authority says the CSA seeks findings of facts contrary to what they are or may be, rather than a review of any decision by the Housing Authority within the jurisdiction of the Arbitrator.

9         Courts and tribunals must make findings of facts based on the evidence before them, subject to strict exceptions.

10      The Housing Authority says the power to determine a matter other than on the facts as found on the evidence is limited and requires a statutory power.  This most often is provided by a specific provision which deems certain facts to exist and entitles the adjudicator to proceed accordingly, for example s 3(4) of the IR Act.

11      I understand the Housing Authority’s submission to be that, absent any express power to deem, the Arbitrator has no capacity to change the facts to be other than what they are, or to order that something is lawful which is otherwise unlawful.

12      It says there is no specific or general power in the IR Act or the Public Sector Management Act 1994 (WA) (PSM Act) that gives the Arbitrator the power to make deeming orders, so the application should be dismissed.

13      The Housing Authority says an appointment which does not comply with CI2 does not comply with s 64 of the PSM Act and therefore cannot be lawfully made.  The Arbitrator cannot make something lawful which is unlawful.  Further, the Arbitrator cannot constrain the discretion conferred on the Housing Authority under s 64 of the PSM Act.  To constrain the discretion would be to deny the discretion.

14      The Housing Authority submits that any appointment made under s 64 of the PSM Act must comply with the conditions of s 64 of the PSM Act, which include Commissioner’s Instructions and orders. 

15      An order by the Arbitrator must be consonant with the other conditions and instruments that apply to appointment.  Any order cannot detract from or be contrary to the requirements of s 64 of the PSM Act.

16      The Housing Authority notes Sharkey P’s observation in The Minister for Education v The Civil Service Association of Western Australia (Inc) (1997) 77 WAIG 2185 (Education v CSA) that ‘[t]here was no power in the Commission to make an order directing the appellants to act contrary to their obligations under s.64 of the PSM Act, and it was not therefore in accordance with equity, good conscience and the substantial merits of the case to do so’ (2187).

17      The Housing Authority says Education v CSA cannot be distinguished on the basis that, in that case, the Director General gave undertakings to appoint employees.  The case provides a general construction of the effect of s 64 of the PSM Act and the other instruments that condition the power of appointment.

18      The Housing Authority also cites Waring v Workcover WA [2010] WAIRC 00914; (2010) 90 WAIG 1664 (Waring) as authority for the invalidity of appointments which do not comply with the terms of an award, agreement or Commissioner’s Instruction. 

19      The CSA is asking the Arbitrator to authorise the Housing Authority to act unlawfully and contrary to Parliament’s intent.

Review or variation of CI2

20      The Housing Authority says the Arbitrator has no power to condition, vary or fetter the discretion conferred on the Housing Authority by s 64 of the PSM Act because the making of CI2 is a statutory function and it cannot be reviewed or varied by the Arbitrator.

Variation of agreement

21      The Housing Authority says the CSA seeks orders which would vary the Public Service and Government Officers General Agreement 2014 (General Agreement). 

22      The orders would vary the General Agreement because they would give fixed-term employees a right to be considered for appointment to a permanent position when they would not otherwise have that right.

23      The Arbitrator has very limited powers to vary the General Agreement and those powers are not relevant to these circumstances. 

24      The Housing Authority says its capacity to appoint and the conditions relating to appointment of fixed-term employees are comprehensively dealt with in the Public Service Award 1992 (Award) and the General Agreement.  Those conditions remain fixed for the life of the General Agreement: Australian Liquor, Hospitality and Miscellaneous Workers Union, Western Australian Branch v Burswood Resort (Management) Ltd [2002] WAIRC 05952; (2002) 82 WAIG 2112 (Burswood Resort).

25      The Award and General Agreement deal with the mode of appointment and conditions of appointment, which includes conversion from fixed-term to permanent employment.

26      The CSA seeks to create a new workplace right for fixed-term employees by providing them with the ability to apply for permanency when they would not otherwise be able to do that.

27      Subclause 7.2 of the General Agreement provides that ‘[t]he parties to this General Agreement undertake that for the term of this General Agreement there will be no further claims on matters contained in this General Agreement except where specifically provided for’.  The matters in the Memorandum are further claims because they seek a right where otherwise there would not be one: Burswood Resort.  This application is a claim about a matter in the General Agreement.

No industrial matter

28      The Housing Authority says the second part of the orders sought by the CSA do not relate to an industrial matter and therefore the Arbitrator has no jurisdiction.

29      The orders seek to regulate the Housing Authority’s practice of calling for expressions of interest or advertising vacancies.  They require the inclusion of an express term in a fixed-term contract of employment about the possibility of future permanent employment. 

30      The Housing Authority concedes that the definition of an ‘industrial matter’ is very broad.

31      Initially the Housing Authority submitted that an industrial matter required the existence of an employment relationship.  Given that an employment relationship does not exist when expressions of interest are called for, there cannot be an industrial matter and therefore no jurisdiction of the Arbitrator to inquire into and deal with the matter: The Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia – Western Australian Branch v Homeswest (1995) 75 WAIG 2872.

32      In its third written submissions, the Housing Authority conceded that RGC Mineral Sands Ltd v Construction, Mining, Energy, Timberyards, Sawmills, Woodworkers Union of Australia WA Branch [2000] WASCA 162; (2000) 80 WAIG 2437 [79] (RGC Mineral Sands Ltd) is authority for the proposition that there may be circumstances where an industrial matter can arise where there is no immediate or directly contemplated employment relationship.  However, the Housing Authority maintains that there is no industrial matter in this case.

33      The Housing Authority says that until an employment relationship is established, the Arbitrator has no power under the IR Act to dictate the terms under which public sector agencies advertise and offer employment to applicants for public sector agencies: Electrolux Home Products Pty Ltd v The Australian Workers’ Union [2004] HCA 40; 221 CLR 309 (Electrolux).  The way in which the employment relationship is formed is a matter for the employer.

Jurisdiction is excluded under s 80E(7)

34      In its first written submissions the Housing Authority submitted that Commissioner’s Instruction No. 1 and the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA) (PSM Regulations) exclude these matters from the Arbitrator’s jurisdiction under s 80E(7) of the IR Act: Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244; (2005) 86 WAIG 231 (Jones).

35      At the hearing, the Housing Authority conceded that the PSM Regulations do not provide a procedure for the employees specified in the Memorandum (specified employees), and therefore do not exclude the Arbitrator’s jurisdiction, because there has not been any decision that could be reviewed. 

36      The Housing Authority agreed that s 80E(7) of the IR Act does not apply to these matters.

Public interest

37      The Housing Authority says it is not in the public interest for the Arbitrator to make the orders sought because the Arbitrator should not facilitate the making of an unlawful appointment or the avoidance of the requirements under s 64 of the PSM Act.

38      The requirements of s 64 of the PSM Act limit and condition the power to appoint, they do not create a workplace right.

Application is premature

39      The Housing Authority says the CSA seeks the Arbitrator’s intervention prematurely.  It could only be after the Housing Authority has posted advertisements with a view to making an appointment, if at all, that it would be open to the Arbitrator to intervene.

Orders seek to condition the exercise of legitimate managerial prerogative

40      The Housing Authority says that the manner in which the Housing Authority calls for expressions of interest and makes an offer of employment are an exercise of legitimate management prerogative.  It should not be conditioned and these matters should not be considered industrial matters.

The CSA’s submissions

41      The CSA filed two sets of written submissions and made oral submissions at the hearing.

42      It says an industrial matter exists and the Arbitrator has the power to make the orders the CSA seeks.

Orders are within power

43      The CSA says the Arbitrator has broad powers under s 80E(5) of the IR Act to review, nullify, modify or vary the Housing Authority’s exercise of power.  These powers are broader than the Commission’s general jurisdiction under Part II of the IR Act.

44      The CSA argues that the orders it seeks do not remove the Housing Authority’s discretion under s 64 of the PSM Act.

45      The CSA says it does not seek the outcomes sought in Education v CSA and Waring and those decisions are distinguishable. 

46      Further, it says s 64 of the PSM Act can be conditioned by an order of the Arbitrator.

47      The CSA agrees that a fixed-term employee must fulfil the requirements in clause 7.1 of CI2 to be contemplated for permanent employment.  It says if the Arbitrator deems it to be so, then the fixed-term officer will have fulfilled those requirements. 

48      The CSA says the orders would merely lead to the specified employees being eligible for appointment, should the CEO choose to exercise his discretion. 

49      The CSA does not seek orders that require the CEO to appoint the specified employees as permanent employees or orders that convert the specified employees from fixed-term employees to permanent employees.

50      It argues that under s 80E(5) of the IR Act, the Arbitrator can vary the Housing Authority’s decision, for example a decision to act in a way that has meant that the requirements under clause 7.1 of CI2 have not been met.

51      The CSA asks that I vary the outcome of the Housing Authority’s actions and decisions.  I understand the CSA’s submission to be that this could be achieved in a number of ways.  Deeming is one way. 

52      The CSA submits that no decisions of the Industrial Appeal Court or Full Bench of this Commission prohibit the Arbitrator from making deeming orders.  The Housing Authority has not produced any authority to contradict this argument.

53      The CSA refers to several decisions where Commissioners and Arbitrators have made orders deeming certain things to have occurred. 

54      In Moreno v Serco (Australia) Pty Ltd (1995) 75 WAIG 3068, 3070, which involved an application brought under s 29(1)(b) of the IR Act, Gifford C ordered that an employee be re-employed as an ongoing casual, rather than on an ‘as required’ basis.  In doing so, Gifford C considered whether a deeming clause in an award was a prerequisite to Mr Moreno being able to be classified as a permanent full-time employee.

55      In Australian Railways Union of Workers, West Australian Branch v Western Australian Government Railways Commission (1996) 76 WAIG 2880 Scott C made orders deeming that industrial action did not constitute a break in the continuity of higher duties payments.

56      In Civil Service Association of Western Australia Incorporated v Director General, Department of Agriculture [2004] WAIRC 11714; (2004) 84 WAIG 2251 Arbitrator Beech SC made orders deeming that an employee was on annual leave for the period it took to address a particular issue and agree the solution to it.  The balance of the period during which the employee was in fact on annual leave was deemed to be leave with pay because Beech SC considered that there was no reason why the employee should have been absent from the workplace for the length of time that he was in fact absent.

57      In Civil Service Association of Western Australia Incorporated v Director General, Department of Justice [2004] WAIRC 12338; (2004) 84 WAIG 2877 Beech C made an order deeming that an employee was on paid sick leave for a period during which he had exhausted his entitlement to paid sick leave.  The Full Bench upheld an appeal against this decision in The Director General of the Department of Justice v The Civil Service Association of Western Australia (Inc) [2004] WAIRC 13765; (2005) 85 WAIG 629 (DoJ v CSA) because the exercise of an equitable power could not override an agency’s obligation to recover money paid out of the Consolidated Fund without parliamentary authority and therefore the payment made was unlawful and ultra vires.  The CSA says the Full Bench did not impugn the Commission’s power to make deeming orders generally.

58      The CSA refers to a range of clauses in 13 agreements that relate to deeming.

59      The CSA says that the Arbitrator could also order certain things to done, for example that a performance appraisal be done or that a notice be issued.  The CSA submits that the Arbitrator has the power to make these orders. 

60      If I consider that I do not have the power to deem that the requirements of clause 7.1 of CI2 are met, the CSA asks that it be permitted to amend its application to seek orders that ensure that the requirements of clause 7.1 of CI2 are met retrospectively. 

No variation

61      The CSA says it does not seek to vary the Award or General Agreement.  This application is contained to clause 7.1 of CI2.

62      These matters are not further claims and the no further claims clause of the General Agreement does not apply.

63      The no further claims clause is limited to matters that were the subject of negotiations during the bargaining period and were settled by the making of the General Agreement.  It is simply a prohibition on claims about wages and hours. 

64      The CSA argues that the no further claims clause must be construed narrowly, otherwise any employment conditions imposed by an employer during the term of an agreement would fall foul of the clause and such a result would be absurd.

Industrial matter

65      The CSA says the definition of ‘industrial matter’ in s 7 of the IR Act is very broad.

66      The matters set out in the Memorandum are industrial matters.

67      The CSA argues that it is not necessary that there be any employment relationship for an industrial matter to exist: DoJ v CSA [32] (Full Bench).  The Industrial Appeal Court in RGC Mineral Sands Ltd held at [80] that the existence of an employment relationship was not necessary to give the Commission jurisdiction. 

68      Parker J concluded that the Commission had jurisdiction to deal with a claim about prospective employees if there was no obvious statutory impediment to hearing the matter. What is relevant is that there is an industrial matter.  There is no need for a dispute concerning an industrial matter: RGC Mineral Sands Ltd [58] (Parker J). 

69      The CSA says Electrolux is not persuasive because it is not relevant to the definition of industrial matter under the IR Act.  Electrolux considered the Workplace Relations Act 1996 (Cth) and whether there was an industrial dispute, being a dispute about matters pertaining to the employment relationship.

Jurisdiction is not excluded under s 80E(7)

70      The CSA says there is no relevant procedure available to the specified employees under the PSM Regulations.

71      The Arbitrator’s jurisdiction is only excluded under s 80E(7) of the IR Act where a standard actually exists: Jones [45]-[46].

72      The PSM Regulations do not apply to the specified employees because the PSM Regulations are only relevant where a person has made an unsuccessful application.  This group of employees is excluded from making an application at all.

Consideration

Industrial matter

73      I must decide whether an industrial matter within the definition of s 7 of the IR Act exists.

74      Given its federal context, Electrolux is not relevant to these matters.

75      It is open to me to find, and I do, that the application discloses an industrial matter, even if much of what is proposed by way of orders may prove to be beyond the scope of that industrial matter and the jurisdiction and power of the Arbitrator: RGC Mineral Sands Ltd [92].

76      The matters set out in the Memorandum fall within the broad definition of industrial matter in s 7 of the IR Act:

industrial matter means 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) the wages, salaries, allowances, or other remuneration of employees or the prices to be paid in respect of their employment;

(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;

(c) the employment of children or young persons, or of any person or class of persons, in any industry, or the dismissal of or refusal to employ any person or class of persons therein;

(ca) the relationship between employers and employees;

…

77      To the extent that the Housing Authority says that the manner in which it calls for expressions of interest and makes an offer of employment are an exercise of legitimate management prerogative which should not be conditioned and is not an industrial matter, I think the Housing Authority conflates issues. 

78      That is part of the substance of the matter.  It may go to whether or not I should deal with a matter, not whether an industrial matter exists or whether I have the power to make orders: RGC Mineral Sands Ltd [65] (Parker J, with whom Kennedy J agreed), citing Re Cram; Ex parte NSW Colliery Proprietors Association Ltd (1987) 163 CLR 117, 133 – 137. 

Power to make orders

79      I agree that I do not have the power to order that the Housing Authority appoint the fixed-term employees as permanent employees.  However, the CSA is not asking me to do that.

80      I am not persuaded by the Housing Authority that I should dismiss these matters because I cannot review or vary the making of CI2.  In hearing these matters, I do not consider I would review or vary the making of CI2.  Rather, I would inquire into and deal with an industrial matter.

81      Deeming orders need not involve making findings of facts contrary to what they are.

82      Clearly I have the power to order that certain things be done if I decide to adjust the Housing Authority’s decision. 

83      The Housing Authority has not persuaded me that I do not have the power to make the deeming orders sought by the CSA.  Of course, whether I would decide to make deeming orders would depend on hearing the substantive matter.

84      Whether the deeming orders sought by the CSA would mean that a permanent appointment of one of the specified employees under s 64 of the PSM Act would be lawful is another matter.  I accept that an appointment under s 64 of the PSM Act must comply with s 64 of the PSM Act, the Commissioner’s Instructions and any order of the Arbitrator.

85      As I have found at [76], an industrial matter exists.  It does not depend on there being an employment relationship. 

86      I would need to hear the substantive matter before I could decide whether or not to order the second part of the orders sought by the CSA. 

87      I am not persuaded that I do not have the power to make an order that could deal with the industrial matter.  Of course I would need to consider the making of any specific order once I have heard the substantive matter.

Variation

88      I agree that I do not have the power to vary the General Agreement in the circumstances.  However, I do not consider that the orders sought would vary the General Agreement. 

89      In my view, the orders would not necessarily give fixed-term employees a right to be considered for appointment to a permanent position when they would not otherwise have that right. 

90      The Housing Authority and CSA agreed at the hearing that fixed-term employees can apply for permanent positions at any time. 

91      The effect of the orders may be that the criteria of clause 7.1 of CI2 is met in relation to the specified employees.  A consequence of this may be that the specified employees would then not be excluded from being considered for permanent appointment.  On its face, that does not necessarily amount to having a right to be considered for appointment.  It also does not vary the General Agreement.

92      I do not agree with the CSA that the no further claims clause only excludes claims in relation to wages and hours, or that it only relates to claims made in the bargaining process. 

93      The no further claims clause excludes ‘claims on matters contained in [the] General Agreement except where specifically provided for’. 

94      The question is whether the matters in the Memorandum are matters contained in the General Agreement.  Conversion is not mentioned in the General Agreement but modes of appointment and the conditions of employment for fixed-term employees are in the General Agreement.

95      I agree with the CSA that the no further claims clause should not be construed broadly.  If it were, many ancillary matters, including those introduced by an employer during the life of the General Agreement, would fall foul of the clause.

96      On its face, the application seeks to correct what the CSA says is an unfair practice.

97      These matters are about the Housing Authority’s practice of appointing and treating fixed-term employees.  Disputes about the exercise of discretion about matters the subject of an agreement are not necessarily further claims.  I am not inclined to think this is a further claim.

Jurisdiction is not excluded under s 80E(7)

98      Jurisdiction is not excluded under s 80E(7) of the IR Act because the PSM Regulations do not provide a procedure for the specified employees.  The Housing Authority rightly conceded as much.

Public interest

99      I am not persuaded that the orders sought are contrary to the public interest. 

100   The orders sought would not require the Housing Authority to appoint employees. 

101   The Housing Authority exercises discretion under s 64 of the PSM Act in relation to making appointments.

Application is not premature

102   This application is not premature.  An industrial matter exists and the CSA is entitled to seek the Arbitrator’s assistance in relation to the matter. 

103   Whether the orders the CSA seeks are orders I would make will no doubt be the focus of the substantive hearing.

Conclusion

104   The objections are not upheld.  I will hear and determine the matters in the Memorandum.