The Commissioner of Police v The Civil Service Association of Western Australia Incorporated
[2002] WASCA 19
•1 FEBRUARY 2002
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT
CITATION: THE COMMISSIONER OF POLICE -v- THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED [2002] WASCA 19
CORAM: ANDERSON J (Presiding Judge)
SCOTT J
McKECHNIE J
HEARD: 1 FEBRUARY 2002
DELIVERED : 1 FEBRUARY 2002
FILE NO/S: IAC 9 of 2001
BETWEEN: THE COMMISSIONER OF POLICE
Appellant
AND
THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED
Respondent
Catchwords:
Industrial relations - Public Service Arbitrator - Jurisdiction - Application on behalf of public service officer in temporary deployment
Legislation:
Industrial Relations Act 1979 (WA), s 80D, s 80E
Public Sector Management Act 1994 (WA), s 64, s 97(1)(a)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr D J Matthews
Respondent: Ms M M in de Braekt & Mr M Amati
Solicitors:
Appellant: State Crown Solicitor
Respondent: The Civil Service Association of Western Australia Incorporated
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Managing Director of the South Metropolitan College of TAFE v The Civil Service Association of Western Australia Incorporated (1999) 80 WAIG 7
Swan Television and Radio Broadcasters Ltd trading as STW Channel Nine Perth v Satie (1999) 79 WAIG 1863
ANDERSON J (Presiding Judge): This is an appeal by the Commissioner of Police from a judgment of the Full Bench of the Industrial Relations Commission, dismissing an appeal against part of a decision of the Public Service Arbitrator made pursuant to s 80E of the Industrial Relations Act 1979 (WA).
The decision appealed from was a decision by the Public Service Arbitrator that the Arbitrator had jurisdiction to deal with the matter presented for the Arbitrator's consideration by the respondent to this appeal, The Civil Service Association of Western Australia Incorporated.
Briefly, the facts are that the respondent applied to the Arbitrator alleging unfair treatment of one of its members arising from the appellant's intention to restructure or rearrange positions within its bike education unit, road safety section. I will call it a restructure for convenience, although that might not be an entirely apt description of what happened within this particular unit.
The restructure has had the effect that a member of the respondent, Mr Stephen Brown, has lost his position as bike education area manager. This was a position which Mr Brown had obtained under a process of temporary deployment. Mr Brown had been deployed in the position for a considerable time - it would seem, from the papers, 5 and a half years or thereabouts - albeit on a temporary basis.
Under this deployment, he was paid at a higher level than the clerical officer level 1 salary which was his substantive position.
He had reached level 3 in the deployed position by the time of the restructure; that is, the position of bike education area manager. The abolition or transfer of the position of bike education area manager, or the movement of that position to a different area, meant that Mr Brown would have to revert to his clerical officer level 1 salary with consequent personal hardship.
Mr Brown is a public service officer appointed under s 64 of the Public Sector Management Act 1994 (WA). The question is whether the industrial matter arising from what was perceived to be the unfair effect on Mr Brown of the restructure was a matter within the jurisdiction of the Public Service Arbitrator appointed under s 80D of the Industrial Relations Act.
The appellant contended before the Arbitrator that the Arbitrator did not have jurisdiction in the matter. That contention was rejected and the Full Bench upheld the Arbitrator's decision. It is on that point that the appellant now appeals to this Court. The case turns on the proper construction of s 80E(7) of the Industrial Relations Act which provides:
"Notwithstanding subsections (1) and (6), an arbitrator does not have jurisdiction to enquire into or deal with … "
and I omit irrelevant words -
"any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is or may be prescribed under that Act."
The section referred to, that is, s 97(1)(a) of the Public Sector Management Act, provides:
"(1) The functions of the Commissioner under this Part are —
(a)to make recommendations to the Minister on the making, amendment or repeal of regulations prescribing procedures … for employees and other persons to obtain relief in respect of the breaching of public sector standards;"
The decision of the Arbitrator and of the Full Bench was to the effect that the matter the subject of the application to the Arbitrator was not a matter in which relief was being sought in respect of the breaching of public sector standards. In my opinion, this is plainly correct on the face of it, which is all that we can go on. There is no allegation that I can see of any breach of public sector standards in the application which was before the Arbitrator.
The respondent does not complain in that application that in carrying out the restructure in the way that it did, having the effect that it did, there was any failure by the appellant to comply with the compliance requirements of any public sector standard relating to temporary deployment or to any other relevant subject.
The respondent's case for remediation of the perceived unfairness, that is the unfairness to Mr Brown, does not depend, so far as I can tell, on demonstrating that there was a breach of compliance requirements. There is no suggestion on the face of the application that there will be any issue about unfairness in the deployment procedures or anything of the kind.
The decision in question seems to me to be simply a decision to restructure the bike education unit. More specifically, it was a decision to abolish or remove an office within the unit. I am not persuaded that that is a decision about temporary deployment of public service officers. That the office which was abolished or removed happened to be occupied by a person temporarily deployed to the office, cannot affect the essential character of the decision. A decision to restructure by abolishing or removing an office or by changing the character of the office so that the present occupant of it is no longer qualified to occupy the office does not become a decision about temporary deployment merely because the occupant of the affected office happens to be acting and not permanent.
This case appears to be really about the disappointment of an expectation by an officer as to salary levels and about whether there was a legitimate expectation that the officer would continue to be paid at level 3 or at some level above level 1. I am not persuaded that the case does or will raise an issue about compliance or non‑compliance with the public sector standards as to temporary deployment. They are my reasons for reaching the conclusion that this appeal should be dismissed.
SCOTT J: I agree with the reasons of the presiding Judge and I would add this, which I think is already apparent from the debate we have had today: this is yet another illustration of a case where a preliminary jurisdictional issue has progressed all the way through the industrial appeal process, from its initiation through to the Industrial Appeal Court, without any evidence being called or any substratum of fact having been established before the case arrived here.
I think in many respects that is regrettable, for no other reason than it means that Mr Brown has been left effectively without a remedy in the sense that he has not known what his final position will be during the period that it has taken for this issue to get to the Industrial Appeal Court. From here, it will need to go back for a further hearing.
That, in my view, is not what the Industrial Relations Act is all about, or the Public Sector Management Act for that matter, both of which are designed to bring to an end, speedily and effectively, these sorts of disputes. I think it is regrettable that these proceedings have taken this course.
That is all I wish to add to the reasons of the presiding Judge. I agree with his Honour's reasons and with his conclusion that this appeal should be dismissed.
McKECHNIE J: For the reasons given by the presiding Judge, I agree also that this appeal should be dismissed. I desire to associate myself with the additional comments by Scott J.
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