Gibson v Tasmanian Industrial Commission
[2013] TASSC 56
•2 October 2013
[2013] TASSC 56
COURT: SUPREME COURT OF TASMANIA
CITATION: Gibson v Tasmanian Industrial Commission [2013] TASSC 56
PARTIES: GIBSON, Glenn Edward
v
TASMANIAN INDUSTRIAL COMMISSION
FILE NO/S: 227/2011
DELIVERED ON: 2 October 2013
DELIVERED AT: Hobart
HEARING DATE: 2 May 2013
JUDGMENT OF: Blow CJ
CATCHWORDS:
Industrial Law – Tasmania – Industrial Commission – Appeals to Full Bench – Other matters – Application to quash Full Bench decision.
Industrial Relations Act 1984 (Tas), s72.
Craig v South Australia (1995) 184 CLR 683; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, referred to.
Aust Dig Industrial Law [1131]
REPRESENTATION:
Counsel:
Applicant: J R C Zeeman
Respondent: No appearance
Minister administering the
State Service Act 2000 P Turner
Solicitors:
Applicant: Ogilvie Jennings
Respondent: Director of Public Prosecutions
Minister administering the
State Service Act 2000 Director of Public Prosecutions
Judgment Number: [2013] TASSC 56
Number of paragraphs: 55
Serial No 56/2013
File No 227/2011
GLENN EDWARD GIBSON v TASMANIAN INDUSTRIAL COMMISSION
REASONS FOR JUDGMENT BLOW CJ
2 October 2013
The applicant has applied to the Court for a decision of the Full Bench of the Tasmanian Industrial Commission to be quashed pursuant to s72 of the Industrial Relations Act 1984 ("the Act"). He is employed in the Department of Treasury and Finance, within the Division of Liquor and Gaming, in the position of Manager, Technical and Systems Audit. Prior to 5 March 2009 his employment was governed by the Administrative and Clerical Officers Award. Under that award his position was at Level 9. As from 5 March 2009, his employment has been governed by a new award, the Tasmanian State Service Award. A decision was made within the Department that under the new award his position was to be at the level of Band 6. He contended, and continues to contend, that his position should be at the level of Band 7. The Minister administering the State Service Act 2000 contended otherwise.
The history of the industrial dispute between the applicant and the Minister can be summarised as follows:
·The applicant disputed his "translation" to Band 6 in accordance with a review process that is provided for in the new award. The outcome of that review process was that his position remained at the level of Band 6.
·On 29 April 2009 the applicant applied to the President of the Commission pursuant to s29(1) of the Act for a hearing before a Commissioner in respect of the industrial dispute.
·A hearing was conducted by Deputy President Shelley. On 19 January 2010 she delivered a decision ordering that the applicant's position be classified at Band 7 of the new award, and that the applicant be translated to Band 7 of the new award with effect from 5 March 2009.
·The Minister appealed to the Full Bench. After a hearing, the Full Bench decided on 22 November 2010 by majority (President Leary and Commissioner McAlpine, Deputy President Abey dissenting) to uphold the appeal and revoke the decision of Deputy President Shelley. That is to say, it was decided that the position was to be classified at Band 6, and that the applicant was to be translated to Band 6, with effect from 5 March 2009. That is the decision that the applicant is seeking to have quashed.
The legislation
The powers exercised by Deputy President Shelley at first instance were governed by s31(1) of the Act, which reads as follows:
"31 Orders arising from hearings
(1) Subject to this section, where the Commissioner presiding at a hearing under section 29 is of the opinion, after affording the parties at the hearing a reasonable opportunity to make any relevant submissions and considering the views expressed at the hearing, that anything should be required to be done, or that any action should be required to be taken, for the purpose of preventing or settling the industrial dispute in respect of which the hearing was convened, that Commissioner may, by order in writing, direct that that thing is to be done or that action is to be taken."
The appeal to the Full Bench was not a hearing de novo. The powers of the Full Bench were restricted by s70(1A) of the Act, which reads as follows:
"(1A) A Full Bench is not to uphold an appeal under subsection (1) unless in its opinion –
(a)the Commissioner against whose decision the appeal is made, in reaching that decision –
(i) made a legal error; or
(ii) acted on a wrong principle; or
(iii) gave weight to an irrelevant matter; or
(iv) gave insufficient weight to a relevant matter; or
(v) made a mistake as to the facts; or
(b) the decision was plainly unreasonable or unjust."
Plainly that sub-section was intended to impose on the Full Bench the same restrictions that apply to appeals from the discretionary decisions of courts, as discussed in House v R (1936) 55 CLR 499 at 505.
The right to apply to this Court for the quashing of a Full Bench decision is conferred by s72 of the Act, which reads as follows:
"72 Provisions relating to finality of decisions of Full Bench
(1) Where a Full Bench makes a decision in respect of an appeal, that decision is, subject to this section, final.
(2) A person who wishes to challenge a decision of a Full Bench in respect of an appeal may apply to the Supreme Court, by motion supported by affidavit, for an order nisi calling on the Full Bench to show cause why the decision should not be quashed in whole or in part.
(3) On the return of an order nisi referred to in subsection(2), the Supreme Court may discharge the order or make it absolute with or without costs.
(4) A decision of a Full Bench in respect of an appeal shall not be challenged otherwise than under this section."
That section does not create a right of appeal. It provides a procedure whereby a person aggrieved by a decision of the Full Bench may apply to have it quashed, and prohibits any other sort of challenge to such decisions. The section was enacted long before the commencement of the Judicial Review Act 2000, s43 of which introduced a prohibition on the issue of writs of certiorari. Section 72 obviously provided a statutory remedy in lieu of certiorari. It made procedural provisions similar to those applicable to applications for prerogative writs. The section is silent as to the criteria to be applied by the Court when determining whether or not to quash a Full Bench decision.
In the light of the High Court's decision in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, it is clear that s72 must be construed as at least allowing this Court to grant orders in the nature of certiorari for jurisdictional error. Whether the jurisdiction conferred by s72 is wider than that, or wider than the old jurisdiction to grant certiorari, is not so clear. However it is very significant that s72(1) provides to the effect that a Full Bench decision is final unless this Court concludes that it should be quashed, and that s72(4) excludes the operation of other remedies, which would have included certiorari when the section was enacted.
The grounds upon which certiorari could be granted to quash a decision were summarised by the High Court in Craig v South Australia (1995) 184 CLR 683 at 175 – 176 as follows (omitting footnotes):
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."
It may be that s72 enables a Full Bench decision to be quashed on the basis of an error of law that does not appear on the face of the record. Section 72(2) requires only a "motion supported by affidavit". If the section is given a purposive construction as required by s8A of the Acts Interpretation Act 1931, there may be no reason to limit its operation, in relation to errors of law, so that a remedy is only available if such an error appears on the face of the record. For the purposes of this decision, I will assume, without deciding, that that is the effect of the section.
Subject to that assumption, there is no reason to interpret s72 as conferring on this Court an unfettered discretion to quash Full Bench decisions in situations where certiorari would not have been available if the section had not been enacted. Since it was intended that, as a general rule, Full Bench decisions were to be final, and since the effect of s72 was to provide a statutory replacement for certiorari, it must be inferred that the power to quash was to be available only in situations similar to those in which certiorari would otherwise have been available.
The nature of jurisdictional error was explained by Hayne J in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at par[163] as follows:
"There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not."
That passage was cited with approval by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at par[66].
The Full Bench is a specialist tribunal. Generally speaking, it is better placed than a court to decide questions of relevance and weight in relation to industrial matters. If it makes an error of fact or law in the exercise or purported exercise of its jurisdiction, any such error will not amount to a jurisdictional error warranting relief in the nature of certiorari unless it is so fundamental or so significant that the Full Bench's decision should be regarded as not constituting an exercise of the functions and powers conferred on it by the Act at all. Any less significant error of fact or law is non-jurisdictional, does not warrant relief in the nature of certiorari, and does not warrant a departure from the presumption of finality provided for in s72(1).
The applicant's grounds
When the Minister appealed to the Full Bench from Deputy President Shelley's decision, she relied on 15 grounds of appeal. Four of those grounds were unsuccessful, and the other eleven were successful. The majority of the Full Bench said in their reasons that grounds 2 and 15 were the principal successful grounds. The applicant has sought the quashing of the Full Bench decision on ten grounds, all but one of which assert errors by the Full Bench as to the grounds of appeal which succeeded before it. He contends that the Full Bench erred in allowing each of the eleven successful grounds of appeal.
The Minister contends that only ground A of this application asserts a jurisdictional error. Her counsel submitted that no jurisdictional error was made as asserted in that ground, and that the other grounds must all fail on the basis that they do not assert any error which, if established, would warrant the quashing of the Full Bench decision.
Deputy President Shelley applied the relevant provisions of the new award for the purpose of determining which band level was appropriate for the classification of the applicant's position. She based her order on a conclusion that Band 7 was the appropriate band. The Full Bench dealt with the appeal on the basis that the role of the Commission was to determine the appropriate band. All of the grounds of appeal in the Full Bench proceedings, and all of the grounds of the present application, assert errors in relation to the application of the relevant provisions in the new award.
The relevant provisions in the new award
The new award essentially required various criteria to be considered for the purpose of determining which "band" classification was appropriate for each individual job. The provisions relevant to this case are lengthy. They appear in Part III of the award, which is entitled "Classification and Related Matters". They include the following relevant provisions:
"1 CLASSIFICATION DESCRIPTORS
(a) Introduction
(i) Purpose:
The purpose of classification descriptors is to categorise the wide range of occupations and different types of work across the Tasmanian State Service into distinct work value levels, to which salaries are aligned.
The classification standards are broad and describe the core features of work at each band from seven perspectives called job components. The classification descriptors determine the appropriate classification for the duties assigned to employees.
(ii) 'Best Fit':
The job components have equal weight or effect and no description [sic] within a component has more importance than another. Some descriptors, however, are more relevant in describing different types of work than others, and therefore will have more influence in classifying that work. Naturally, not each and every descriptor applies to any individual job. These descriptors are appropriately used when particular job components and the overall theme or 'feel' of a particular band provides the 'best fit' to an employee's duties.
In using the descriptors it is important to consider particular organisational arrangements, such as the reporting relationships above and below specifically assigned duties.
(iii) Similarity of Descriptors:
The descriptors of some job components at different bands are similar because of shared requirements which mean the key differences in different work value levels lie in other features of the work.
(b) …
(c) Features
The following are the key features of the Classification Model:
…
(iii) Work is described in seven job components for each band.
The components are:
(1) Focus:
The primary purpose of work at each band, including the range of objectives and activities.
(2) Context and Framework:
The operating environment and decision-making framework for work at each band.
(3) Expertise:
The qualifications, knowledge and experience required for work at a particular band.
(4) Interpersonal Skills:
Oral and written communication skills and the ability to lead people and manage relationships.
(5) Judgement:
Critical thinking, problem solving and decision-making requirements of each band.
(6) Influence of Outcomes:
The influence and effect that work of a satisfactory standard would have on the outcomes required of each band.
(7) Responsibility for Outcomes:
The principal responsibilities of work at each band.
(iv)The General Stream descriptors define work in 4 broad levels according to the focus of the work and the framework in which it is performed. These are as follows:
(1) …
(2) Bands 4, 5 and 6
Work involves the maintenance and modification of guidelines, systems and processes according to a defined policy and regulatory operating environment. The operating environment is Agency–specific in terms of organisational design, planning, structures and interpretation of government objectives.
(3) Bands 7 and 8
Work involves the interpretation and modification of policy and regulatory settings according to operational requirements (internal – how we work) and service delivery (external - what we do) demands. A broader whole-of-Agency and/or whole-of-government perspective.
…
3 SUMMARY OF DIFFERENCES BETWEEN GENERAL STREAM BANDS
…
(f) Difference Between Band 5 and Band 6
Band 6 work applies the decision-making framework (policies, rules and regulations) in support of program or service delivery of a defined field of activity, which may involve more than one discipline. Considerable autonomy of approach in delivering outcomes and the advice and recommendations provided are regarded as definitive for that activity.
(g) Difference Between Band 6 and Band 7
Band 7 work leads a complex activity or program unit requiring the development and/or determination of the operational methodology according to the decision-making framework and service delivery requirements."
Thereafter, under the heading "General Stream Band Descriptors", the award sets out many pages of criteria concerning Bands 1 to 10 inclusive. The criteria relating to Band 6 and Band 7 are set out over several pages against the seven "job components" listed in cl 1(c)(iii), ie Focus, Context and Framework, etc.
Ground A
This ground reads as follows:
"AThe Full Bench of the Tasmanian Industrial Commission ('the Commission') erred in law within the meaning of Section 71 of the Act in that the Commission determined that the role of the Commission was to consider a reclassification of the Applicant rather than a translation of the Applicant's position."
The role of Deputy President Shelley was to make an order, if appropriate, for the purpose of preventing or settling the industrial dispute: s31(1). Because the dispute was limited to the question whether Band 6 or Band 7 was more appropriate, it was open to her either to affirm the departmental decision that the applicant's position was to be at the level of Band 6, or to make an order to the effect that it was to be at the level of Band 7.
The role of the Full Bench was to consider whether any ground of appeal within the scope of s70(1A) had been made out and, if so, to decide whether to confirm, revoke or vary Deputy President Shelley's decision, whether to substitute a decision of its own, or whether to direct Deputy President Shelley, or another member of the Commission, to take some sort of further action: s71(13). Because of s31(1), the Full Bench proceedings had to be directed towards the objective of making an order for the purpose of settling the industrial dispute concerning the band level to which the applicant's position was translated.
In order to determine whether the order of Deputy President Shelley should be affirmed or some other course taken, it was necessary for the Full Bench to consider what classification – Band 6 or Band 7 – was appropriate for the applicant's position. Any determination about translation from the old award to the new award involved considering the appropriate classification for the position of the employee in question. Clause 1(a)(i) of Appendix 1 to the new award defined "translation" as referring to "the process of moving from the previous classification structure under the … Administrative and Clerical Employees Award … to the new classification structure under this award". Clause 3(e)(iii) of that Appendix entitled an employee, if dissatisfied with the result of an internal review of a translation decision, to "seek review of the classification band to the Tasmanian Industrial Commission". That is what this applicant did.
Thus, in order to determine the appeal from Deputy President Shelley's decision, the Full Bench needed to consider the appropriate band classification for the applicant's position. That is what it did. It did not err in law by doing so. The appropriate band classification had to be considered for the purpose of determining the most appropriate outcome of the translation process. This ground must fail.
Grounds B and C
These grounds read as follows:
"B The Commission erred by upholding grounds 2 and 9 of the appeal by determining that Deputy President Shelley had relied on work or matters outside the Statement of Duties
C The Commission erred by upholding grounds 4 and 5 of the appeal by determining that Deputy President Shelley gave weight to an irrelevant matter by placing reliance on the Statement of Ms Fitzgerald."
These grounds assert that, in a number of respects, the Full Bench erred by treating matters as irrelevant when in fact they were relevant. If the Full Bench made any such errors, they were errors as to matters of detail, and not the sorts of errors that would warrant relief in the nature of certiorari, or a departure from the finality requirement of s72(1). If there were any errors as asserted in these grounds, they were not so fundamental as to result in the Full Bench decision not being a valid exercise of its statutory decision-making power. That is to say, any such errors could not have amounted to jurisdictional errors. These grounds must both fail.
Ground D
Ground D of the application reads as follows:
"D The Commission erred by upholding ground 6 of the appeal by determining that Deputy President Shelley gave insufficient weight to evidence supporting the view that the Applicant's role was of narrow focus when compared with the descriptors required of band 7."
Section 70(1A)(a)(iv) empowered the Full Bench to determine that the learned Deputy President gave insufficient weight to a relevant matter. Clause 1(c)(iv)(3) of Part III of the new award contains a provision, in which there is no verb, to the effect that Band 7 work involves a "broader whole-of-Agency and/or whole-of-government perspective". No doubt the word "broader" referred to a comparison with work at Band 6 level and below. This ground relates to some of the evidence relevant to the assessment of the extent of the breadth of the perspective required for the applicant's position. The assessment of the weight to be attached to that evidence was not a matter of such importance that an erroneous assessment would amount to jurisdictional error or otherwise warrant the granting of relief in the nature of certiorari or a departure from the finality requirement of s72(1). It is the sort of assessment as to which minds might differ, and as to which the Full Bench must have the last say. This ground must fail.
Ground E
Ground E of the application reads as follows:
"E The Commission erred by upholding ground 8 of the appeal by determining that Deputy President Shelley made a mistake as to fact in respect to Mr Gibson leading a specialised program."
In some circumstances, a mistake of fact will amount to a jurisdictional error that warrants the granting of relief in the nature of certiorari. Sometimes legislation confers powers on a decision-maker only if a particular fact exists. See, for example, Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135. However the jurisdiction of the Full Bench did not depend on the existence of any such jurisdictional fact. If an administrative decision-maker makes a mistake as to a non-jurisdictional fact, that mistake will ordinarily not amount to jurisdictional error. However there can be circumstances in which such an erroneous finding of fact does amount to or reveal jurisdictional error.
In Craig v South Australia (above) at 179, Brennan, Deane, Toohey, Gaudron and McHugh JJ said:
"If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
In cl 4 of Part III of the new award the criteria relating to the job component called "Focus" refer to "a defined field of activity" in respect of Band 6, but to "Work within a specialised program or engaged [sic] in complex activities within a functional area" in respect of Band 7. As to this distinction, the majority of the Full Bench concluded that the learned Deputy President had "misunderstood the evidence and confused a number of concepts".
If the majority thereby made a mistake of fact, it does not follow that any such erroneous finding was the result of an error of law, nor that it was so significant as to affect the validity of the Full Bench's exercise of its statutory power. This was not an issue of great importance. Any such error could not amount to a jurisdictional error, and would not warrant the granting of relief in the nature of certiorari, or a departure from the requirement of finality imposed by s72(1).
Ground F
Ground F of the application reads as follows:
"F The Commission erred by upholding ground 10 of the appeal by determining that the conclusions of Deputy President Shelley in respect to delegations did not reflect the evidence."
There was evidence before the learned Deputy President that the applicant held a number of delegations pursuant to the Gaming Control Act 1993. She received evidence as to the level of responsibility assumed by the applicant in exercising delegated powers pursuant to that Act. In ground 10 of her appeal to the Full Bench, the Minister contended that the learned Deputy President gave insufficient weight to certain evidence relating to the exercise of delegated power. After reviewing the evidence in relation to this issue, the majority said the following:
"[111] We are not sure that the Deputy President has made a finding on the delegations issue. In her decision she has expressed a number of opinions and provided speculation about a number of issues which makes it unclear as to what are findings and what are mere commentary or opinion.
[112] Nevertheless we are of the view that the Deputy President erred inasmuch as her commentary in regard to the delegations did not reflect the evidence. It would seem that she has concluded that the level of skill, responsibility, expertise and knowledge necessary to carry out those delegations is relevant but it is not clear what weight, if any, she has placed on that comment or on what basis she has come to such conclusion in light of the whole of the evidence presented. That part of her decision seems more commentary and opinion rather than being a finding based on the evidence.
[113] Accordingly we uphold appeal ground 10 as the Deputy President has erred in that her conclusion does not reflect the evidence in respect to the delegations."
It appears from these paragraphs that, in substance, the majority concluded that the learned Deputy President had attached insufficient weight to the evidence relating to the exercise of delegated powers. That was not an issue of great importance. If that conclusion was erroneous, there is no basis for concluding that it involved jurisdictional error, nor that it warranted the granting of relief in the nature of certiorari, nor that it warranted departing from the presumption of finality provided for in s72(1). This ground must fail.
Ground G
Ground G of the application, as amended, reads as follows:
"G The Commission erred by upholding ground 11 of the appeal by determining that Deputy President Shelley gave weight to irrelevant matters and/or made a mistake of fact relating to the complexity of the work."
In their reasons relating to ground 11 of the appeal to the Full Bench, the majority did not make a finding that the learned Deputy President had made a mistake of fact. On my reading of their reasons, they upheld ground 11 on the basis that the learned Deputy President had attached undue weight to evidence that the applicant occasionally deals with complex issues. At par[120] of their reasons, they said:
"It is our view that an occasional requirement to deal with complex issues is not a sufficient basis on which to determine that the position is under classified."
This ground concerns a very minor point. If the Full Bench erred as asserted, there is no reason to think that any such error amounted to jurisdictional error, nor that it warranted the granting of relief in the nature of certiorari, nor that it warranted departing from the presumption of finality provided for in s72(1).
Ground H
Ground H of the application reads as follows:
"H The Commission erred by upholding ground 12 of the appeal by determining that Deputy President Shelley made a mistake of fact in determining that the technical nature of the work aligned to band 7."
The learned Deputy President reviewed the evidence as to the level of technical expertise required in the applicant's position and concluded, at par[142] of her reasons, that "he does deal with highly technical and occasionally complex issues in an area requiring specialist expertise".
In cl 4 of Part III of the new award, one of the criteria for Band 7 in respect of the job component called "Expertise" reads:
"High level specialised expertise in the relevant discipline and associated field of activity gained through extensive experience."
At par[144] of her reasons, the learned Deputy President made a finding that "the Manager TASA's role requires high level specialist expertise".
In the Full Bench decision, the majority disagreed with the two findings I have referred to, and upheld ground 12, which asserted that "The Deputy President made a mistake of fact in determining that the technical nature of the work was that of band 7".
This was a finding of fact as to a matter of detail. If it was erroneous, there is no reason to think that it amounted to jurisdictional error, nor that it warranted the granting of relief in the nature of certiorari, nor a departure from the presumption of finality provided for in s72(1). This ground must fail.
Ground I
Ground I of the application reads as follows:
"I The Commission erred by upholding ground 13 of the appeal by determining that Deputy President Shelley made a mistake of fact in determining that managerial duties were within band 7."
The majority in the Full Bench took the view, at par[133] of their reasons, that the managerial duties associated with the applicant's position were "a requirement of both band level 6 and band level 7". They upheld ground 13 of the Full Bench appeal, which asserted that the learned Deputy President had "made a mistake as to fact in determining that managerial duties were band 7".
Once again, the applicant is contending that the majority of the Full Bench made an erroneous finding of fact on a matter of detail that involved a value judgment. Once again, there is no reason why any such error should be regarded as a jurisdictional error, as warranting the granting of relief in the nature of certiorari, or as warranting a departure from the presumption of finality that s72(1) provides for. This ground must fail.
Ground J
Ground J of the application reads as follows:
"J The Commission erred by upholding ground 15 of the appeal by determining that Deputy President Shelley gave insufficient weight to 'best fit'."
The duties that are, at least in theory, required to be performed by the holder of the applicant's position are set out in a document called a statement of duties. The State Service Act makes no provision for statements of duties, but the government no doubt has the power to prescribe the duties in relation to a State Service employee's position by creating such a document. No doubt there are sometimes disparities between the duties set out in such a document and the work actually performed by the incumbent of the position to which it relates.
The learned Deputy President and the majority of the Full Bench took different views as to the weight to be attached to the applicant's statement of duties, as distinct from the work that he was actually doing. Neither the learned Deputy President nor the majority of the Full Bench lost sight of the "best fit" provisions in cl 1(a)(ii) of Part III of the new award, which is set out above.
Ground 15 of the appeal to the Full Bench asserted that the learned Deputy President "gave insufficient weight to the 'best fit' determinant in the classification of the duties as provided in the Tasmanian State Service Award". The majority of the Full Bench decided to uphold that ground. However their reasons disclose that, in substance, they did so on the basis that she attached insufficient weight to the applicant's statement of duties. That is clear from par[146] of their reasons, where they said the following:
"[146] We are of the view that the Deputy President has misunderstood the task before her and has on a number of occasions erroneously inferred or stated that the exercise was about determining the appropriate band level for Mr Gibson based on his skills and the level of responsibility of the work performed by him. In fact the exercise before the Deputy President should have been an assessment of the SOD [statement of duties] and a determination of what was the appropriate band level for that SOD."
The error asserted by ground J of the application, despite the wording of that ground, is in substance one of attaching insufficient weight to a particular document. There is no basis for concluding that attaching insufficient weight to a particular document can amount to a jurisdictional error, or warrant granting relief in the nature of certiorari, or warrant a departure from the presumption of finality provided for by s72(1). This ground must also fail.
Conclusion
A decision of the Full Bench could be quashed on the basis of unreasonableness under s72 in accordance with Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, if it were a decision that no reasonable decision-maker could have made and therefore not a valid exercise of the decision-making power. It was not argued that any of the asserted errors of the majority of the Full Bench, alone or in combination, warranted such a conclusion.
All of the grounds relied upon by the applicant failed. None of the asserted errors of the majority of the Full Bench, if made, would warrant the quashing of the Full Bench decision. I have therefore decided to dismiss the application.
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