Meldon v Public Sector Management Commission

[1995] QSC 68

IN THE SUPREME COURT

OF QUEENSLAND

No. 642 of 1994

[Meldon v. Public Sector Management Commission & Anor]

BETWEEN:

TREVOR MELDON
  Applicant

AND:

THE PUBLIC SECTOR MANAGEMENT COMMISSION
  First Respondent
AND:

MIKE KENNEDY, DELEGATE OF THE

COMMISSIONER FOR PUBLIC SECTOR EQUITY

Second Respondent

JUDGMENT  -  DERRINGTON J.

Delivered:21 April 1995

CATCHWORDS:     ADMINISTRATIVE LAW - Judicial Review - Finding of Public Sector Appeal Tribunal of absence of jurisdiction - Standard enacted as to appeals forbidding appeal in this area except in express cases - Similarity in principle of present case to express exceptions not sufficient to defeat prohibition - Tribunal finding as to absence of jurisdiction correct.

ADMINISTRATIVE LAW - Judicial Review - Refusal of Tribunal to recommend amendment of standard - Decision to refuse to recommend not reviewable in this case - No statutory provision for recommendation.

Counsel:Applicant in person

P. Dwyer for the first respondent

Solicitors:K.M. O'Shea, Crown Solicitor for the first respondent

W. Vitali, Crown Solicitor for the second respondent

Hearing Dates:  31 March 1995
IN THE SUPREME COURT

OF QUEENSLAND

No. 642 of 1994

[Meldon v. Public Sector Management Commission & Anor]

BETWEEN:

TREVOR MELDON
  Applicant

AND:

THE PUBLIC SECTOR MANAGEMENT COMMISSION
  First Respondent
AND:

MIKE KENNEDY, DELEGATE OF THE

COMMISSIONER FOR PUBLIC SECTOR EQUITY

Second Respondent

JUDGMENT  -  DERRINGTON J.

Delivered the 21st day of April 1995

The applicant sought selection as an Advanced Skill Teacher ("AST") in the Education Department and was unsuccessful.  This did not involve his appointment to a position nor promotion, though his success would have provided some financial benefit in the form of higher salary.
           He then appealed unsuccessfully to a tribunal set up under the Industrial Award which dealt with such matters, and his further appeal to the Industrial Commission from that decision was rejected for absence of jurisdiction.  He says that at the hearing it was recommended by the bench that he pursue an appeal to the Public Service Management Commission ("the Commission").
He then lodged an appeal with the Commission and a delegate, the second respondent ("the respondent"), was appointed to hear it. He held a preliminary hearing as to jurisdiction and decided that he had none because paragraph E.2.3 of the Public Sector Management Standard for Fair Treatment of Employees ("the Standard"), which dealt with the applicant's appeal rights under s.5.3 of the Public Sector Management Commission Act 1990 ("the Act"), excluded any entitlement to appeal in relation to the classification level of a position except in two specific types of cases which did not include this case. The applicant agrees that he comes within the general class referred to in the exclusion of appeals contained in that provision (which he agrees applies to him) but he claims that in his circumstances he too should be excepted from it.
           Because of the nature of the arguments of the applicant, the respondent went on to consider whether he should recommend to the Commissioner for Public Sector Equity that the matter be examined with a view to amending paragraph E.2.3 of the Standard so as to provide for a right of appeal to the Commission in a case such as this.  After making observations as to the nature and details of the two specified exceptions referred to in that paragraph, observations which the applicant claims are wrong, he refused to make any recommendation because, he said, the present appeal was not comparable with them in a certain relevant respect.
The applicant, who represented himself very ably, first challenged the refusal to make any recommendation, suggesting, it would seem, that such a recommendation would have led to an amendment to the Standard which would then have retrospectively given the Tribunal jurisdiction to hear his appeal. When the difficulties of such an argument, having regard to this court's jurisdiction, were pointed out to him, he argued in the alternative that although this class of matter was not one of the two specified exceptions to the paragraph's general exclusion of appeals of this class, its similarity to the other two in principle was such that it should be found to be included if the Standard is read "according to its tenor". He adopts that phrase because of the provision of s.4.14(2) of the Act. This will be explained later. After this outline of the issues, it is desirable to turn to the structure of the relevant part of the Act and to the Standard which was issued pursuant to it.
The provisions for appeal to which the Standard relates are contained in Part 5 of the Act. The object of that part is set out in s.5.1 which reads as follows:

"Object of Part

5.1The object of this Part is -

(a)to enhance the access of public sector employees to appeal tribunals for the redress of grievances;

(b)to preserve and declare the jurisdiction of the Industrial Commission to hear and determine matters relating to such grievances in certain cases and in general where it is in the public interest."

Attention must be directed to two features of this.  The first is that it refers to the enhancement of the access of public sector employees to appeal tribunals for the redress of grievances;  so, consistently with the concept of enhancement, it and derivative legislation should be read liberally.  The second is that it preserves the jurisdiction of the Industrial Commission to hear and determine matters relating to such grievances in certain cases.  It will be recalled that the applicant in fact first appealed to a tribunal set up under the  Industrial Commission to hear the appeal in accordance with the terms of the Industrial Award registered with the Commission.
           Section 5.2 sets up a Commissioner for Public Sector Equity who is to be one of the Commissioners of the Public Sector Management Commission.
Under s.5.3(1) an appeal lies to the Commissioner for Public Sector Equity in accordance with Part 5, but not otherwise, in respect of, among other things, "(a) every action taken or purportedly taken, or failure to take action, in compliance with or pursuant to a standard" with an irrelevant exception. The Standard is the only relevant standard within the meaning of this sub-section.
The primary right of appeal under s.5.3(1) of the Act is, by s.5.3(2)(a)(ii), limited to "a public sector employee . . . who is entitled to exercise the right of appeal under the provisions of a standard". This has the effect of permitting standards to impose internally restrictions and limitations on those appeals that relate to them. Consequently the restriction on appeals imposed by paragraph E.2.3 of the Standard is authorised by the Act.
Various sections of the Act support the object stated in s.2.13, that is, the achievement of, among other things, impartiality in the management of the public sector of Queensland. This includes the provision in s.2.14(1)(i), referred to above, that it "ensure that public sector employees obtain fair and equitable treatment".
           The machinery for achieving this consists of the issuing, under Division 4 of Part 4, of Public Sector Management Standards.  Section 4.14 reads as follows:

"4.14(1) Before issuing a standard the Commission shall present the standard to the Minister for approval.

(2) Upon the approval of a standard by the Minister and its issue by the Commission, it shall have effect according to its tenor and become binding upon the units of the public sector, bodies and persons to which or to whom it applies."

(Underlining mine.)

In this there are two features of note.  First the issuing of a standard requires prior ministerial approval.  Secondly it shall then "have effect according to its tenor and become binding upon the units of public sector . . .".  It is this reading of the Standard according to its tenor that the applicant relies on in an argument that will be considered later.  It is now convenient to turn to the Standard itself.
           As its name implies, the Standard as a whole is directed to the fair treatment of employees and Part E is dedicated to appeals.  However, by paragraph E.1.1 the appeals that are thereby permitted must be directed at and confined to "every action taken or purportedly taken, or failure to take action, in compliance with or pursuant to [the Standard itself]".  That refers to non-compliance with Part D, which reads, simply but significantly: "Employees shall be treated fairly and shall not be subjected to arbitrary or capricious acts or decisions." 
           Paragraph E.2 generally speaks of cases where employees are not entitled to appeal, and paragraph E.2.3, which is the most relevant provision, reads as follows:

"E.2.3Further provided that a public sector employee is not entitled to appeal in relation to the classification level of a position, except where the appeal concerns:

2.3.1movement from Level 2 to Level 3 within the Professional and Technical Streams in accordance with prescribed criteria for movement;

2.3.2classification as a Principal Teacher under the TAFE Teachers' Award - State or the Senior College Teachers' Award - State."

As it has been indicated, it is common ground that the applicant's original application to the Department related to "the classification level of a position" within the meaning of paragraph E.2.3.
           The grounds of his appeal to the Commission were as follows:

"The Department of Education is disadvantaging me unfairly by:

(a)administering a selection process that does not comply with the PSMC Standard or any standard;

(b)administering an appeals process that, without proper authority, denies appeal access to the PSMC;

(c)refusing to adjust its processes to accommodate the special nature of Brisbane School of Distance Education;

(d)persisting in all of the above and thus supporting the decision by the B.S.D.E. AST selection panel which decisions deny me the AST classification I deserve on the basis of merit."

It will be noted that only the first refers to a standard.  That has not been identified for present purposes but it is not argued for the respondents that there is any point in that omission.   More importantly, in order to come within the general scope of the appeal provisions contained in the Standard, it and the other grounds must rely upon an alleged failure to take action in compliance with Part D of the Standard relating to fairness, for by paragraph E.1.1, referred to above, it is only a failure to comply with this standard that gives rise to an appeal.  The applicant would not complain with this reasoning, but there is a further limitation within which his grounds must come in order to be justiciable.
           The provisions following paragraph E.1, all relating to appeals and in some cases imposing prohibitions or limitations, are obviously designed to modify the general right to appeal, as expressed in paragraph E.1.1, and indeed paragraph E.2 has the subheading: "Entitlement to exercise right of appeal."  This means that paragraph E.2.3 is effective to exclude a right to appeal if it is against the applicant.
The right of appeal is not extended beyond this by s.5.3(1)(a) of the Act and its Regulations because that section, which alone is relevant, is self-limiting to cases of non-compliance with the Standard; and, as it has been shown above, s.5.3(2)(a)(ii) permits of this self-imposed limitation within the Standard. The applicant accepts this too, but it is necessary to understand how the Commission's jurisdiction is controlled by paragraph E.2.3.
All of this means that the applicant's success here must depend on his being able to show that his appeal to the Commission comes within its jurisdiction as defined by that paragraph because that is how it is defined by law. More specifically there is no right of appeal under the Act or the Standard (or any standard) against the Commission's action in setting the terms of a standard. For this reason the last three grounds of the applicant's appeal to the Commission have no jurisdictional foundation, for there is simply no statutory provision to which they could be related. However it would be sufficient to the present application if the first ground contains a justiciable point within the respondent's jurisdiction. For this it must be permitted by the Standard.
This is the real issue. His argument that if it is not within such jurisdiction, the Commission has an obligation under the Act to provide him with a right of appeal under the Standard and has failed to do so, is simply not a matter to do with his appeal It may be a matter which he may take up with the Commission, but his application to this court complains of the decision of the delegate on the appeal. That does no more than find that he has no right of appeal, at least under the provisions of this legislation, and so it is not a proper vehicle for this aspect of his complaint.
           Before departing from this feature, it is perhaps desirable to make one further observation upon the validity of the substance of his argument concerning the Commission's duty, even though that is not reviewable here.  The question of his right to appeal to the Industrial Commission is open and not one to be decided here;  but it is relevant to note that if there is such a right, then the Commission could not possibly be said to be in default of its obligations under this Act to provide equity to him simply because it did not set up a further or alternative machinery of appeal under this Act.  Indeed the applicant fairly conceded that he could not expect two independent lines of appeal.  Further, even if he did not have the right of appeal to the Industrial Commission, it cannot be said that as a matter of policy and equity he has established that he should be given a right of appeal to the Commission.  Therefore, even if his complaint on this point had been within the purview of this court, it is doubtful whether he would have proved his merits.
This is a digression from the real point here, which is whether the respondent's decision is reviewable in relation to the first ground of the appeal, that is, in effect, whether in refusing his original application the Commission failed to act properly in respect of a matter that is appealable under the Standard despite paragraph E.2.13 thereof. This then is properly confined to the decision of the respondent, who was bound to apply the terms of the Act and the Standard, as they stand.
As it will have been observed from the provisions of that paragraph, the applicant is not entitled to appeal in relation to a field that would generally include the subject matter of his complaint except where the appeal concerns the two specific classes of case referred to in that paragraph. The applicant's most direct argument is that the nature of his appeal comes "within the tenor" (as used in s.4.14(2) of the Act) of the exceptions. He attempts to do this by comparing the subject matter of his original application with that referred to in the exceptions.
           He appears to be justified in drawing some analogy between them.  In its submissions to the respondent, the Department said:

"(b)AST1 positions are similar to Principal Teacher positions under the TAFE  Award and advancement from PO2 to PO3 and TO2 to TO3 under the Public Service and Employees of Government Departments (other than public servants) Award.  Appeals in relation to non-appointment to these similar positions are not by way of appointment appeals but are Fair Treatment Appeals provided for by s.E.2.3 of the Fair Treatment Standard."

The applicant however takes issue with the latter part of the next submission by the Department which the respondent adopted.  The full submission said:

"(c)The Fair Treatment Standard does not provide a right of appeal in relation to AST selections which may be an omission on the PSMC's part or may be because there is an appeal body established under the Teachers' Award - State for AST appeals but no similar bodies for TAFE or PO and TO positions."

The applicant's denial is correct to the extent that in respect of one of the comparable cases there is provision for the lodgment of an objection by an employee who has a grievance against the decision;  and in the other there is a more formal but limited right of appeal.  In the former the nature of the appeal is limited to discussion and an attempt at dispute resolution by agreement between the person aggrieved and the appropriate officer of the Department.  To this extent it is not an appeal to an appeal body similar to that to which the applicant has already had access in this case under the award.  In the second, the appeal lies against the "recommendation" of the selection body, but this would seem to be a distinction of no significance, for the recommendation must have considerable effect if a right of appeal against it is provided.  However, that appeal also is limited to a submission in writing to the Chief Executive, so that again there appears to be no appeal process of the nature of that enjoyed by the applicant in respect of his appeal under the award.
           In summary on this point, it would seem that to that extent the respondent was technically in error in saying that the Fair Treatment Appeal as allowed for by the exceptions in paragraph E.2.3 of the Standard "is the only appeal mechanism that is available to public sector employees in relation to" the matters referred to in those exceptions.
           However having regard to the substance of his consideration and reasoning, the real differences between the limited appeals open to the classes of case referred to in the exceptions and the course of appeal open to the applicant under the award, it is not possible to make any assumption that the respondent's conclusion must necessarily have been incorrect;  and the judicial review procedure is not appropriate to resolve this point.  It is not intended simply to review such decisions on the merits.
           However, even if he were wrong in a significant respect, again that would not afford a reason to review his decision in this court in respect of his finding that he had no jurisdiction to hear the appeal.  His reliance upon that reasoning related only to the question of his recommendation as to a review of the Standard by the Commission and not to his primary decision on jurisdiction.  Its only possible relevance to jurisdiction would have appeared if it had constituted an operative factor in his interpretation of paragraph E.2.3 of the Standard in respect of that question, that is, whether any similarity of the applicant's position to those referred to in the exceptions caused the former to come within the exceptions.  It is not possible to see how any error of this kind could have a bearing on that question because the express exceptions are so clearly defined, and no similar exception is made in respect of similar cases.
           The words used simply cannot accommodate such a meaning as the applicant proposes, and this is so even if the word "tenor" is given its wider connotation as the general sense or meaning of the passage rather than its more restrictive meaning which is usually applied in a legal context.  It does not extend the meaning to what might have been, but was not, said.  The use of specific and precisely defined exceptions to a general exclusion cannot permit of the addition of other matters simply because they may be broadly similar.  Therefore, any error of the respondent on this point cannot go to the issue of his jurisdiction, and so it is not reviewable as such.
           The applicant appears to be correct where he points out that when the Standard was drafted, it was not possible to include the position in which he finds himself among the exceptions, for the possibility of his position came into existence only after that time.  That certainly means that in drafting the Standard the Commission did not have the opportunity of turning its mind to this situation;  but that does not mean that the reading of the Standard should be adjusted to incorporate the new development when its words simply do not permit that.  If the applicant is right that the matter should be included in these exceptions, then an amendment would be called for, but neither the respondent nor this court could proceed as though it had been effected.  His primary premise, that it was not intended to include his position among the exceptions because it did not exist, emphasises the real point, which is that it was not included among them.

           In addition, as it has been observed in the discussion above, the distinction between the nature and quality of the primary appeal machinery provided in the present circumstances and that in the exceptions is sufficient to disestablish any assumption of such similarity as to justify its use in the exercise of construing the Standard.  That question is to be determined by the Commission and even if it were to decide that a change was justified, any amendment to the Standard would require the Minister's prior approval.  Even more relevantly, it would not be retrospective.
           This all demonstrates that the matter lies really in another dimension, and not in the field where the respondent was required to act as he did, and where he would be answerable here for failing to do so.
           The applicant's original ground in applying to this court is equally flawed.  His attack upon the respondent's refusal to recommend to the Commission the inclusion of these circumstances among the exceptions overlooks the position that the respondent had no power to make a recommendation that had any authority or force.  His authority as a delegate to the Commissioner was limited to the hearing of the appeal and, in doing that, to consider the issue of jurisdiction insofar as it controlled his actions. 
His appointment was duly made under s.5.6(7) of the Act, and while, under s.5.8, he was vested with "all the powers and authorities of the Commission", they were limited to the purpose of the exercise of the appeal jurisdiction. In that jurisdiction, the Commission is not given power to amend the Standard, or even to recommend an amendment; so in turn the respondent had no such power.
His action in considering a recommendation, while no doubt valuable in providing a view which was reached after hearing argument upon the point, and intended to be helpful, was completely gratuitous and outside his delegated authority. It is correct, as the applicant argues, that his refusal to make a recommendation was within the definition of "making of a decision" and "failure to make a decision" as defined by s.5 of the Judicial Review Act, because it comes within the meaning of "doing or refusing to do anything else" as referred to in item (g) of that section. But such a decision must have some status before it can be regarded as coming within the description of decisions that are reviewable by this court under s.20 of the Judicial Review Act, and the refusal to make a recommendation has no such status.
           The reason is that by that section only "a decision to which this Act applies" is reviewable, and that phrase is defined by s.4, where relevant, to mean "a decision of an administrative character made . . . or required to be made under an enactment (whether or not in the exercise of a discretion)".  As the recommendation, or failure to make it, was not made or required to be made under any enactment, it cannot come within this description. 
           For the same reason, s.6, which specifically refers to recommendations, does not apply to it.  That section reads:

"6.       If provision is made by an enactment for the making of a report or recommendation before a decision is made, the making of the report or recommendation is itself taken, for the purposes of this Act, to be the making of a decision."

There is no provision in the Act on any standard for the making of such recommendation. This emphasises the point.
           The application is therefore refused.  However, on the question of costs the legislation is unclear, and the view of the respondent on one matter which may have had some relevance in the eye of the applicant was in error on its face, although that may have not been so in the way in which he intended it.  Finally, the applicant's application was stimulated by a suggestion made when the Industrial Court refused to entertain his appeal.  For these reasons, he should not be required to pay the costs of the respondents, and so no order as to costs will be made.

Order
           Application dismissed.

No order as to costs.