Citation : [2013] WAIRC 01049 File No. : PSAC 41 of 2013 CatchWords : Industrial law (WA) - appeal against decision of the Commission - application for interim order pursuant to s 44 of the Industrial Relations Act 1979 (WA) - public interest - compulsory conference - discretion to intervene in an investigation under s 81 of the Public Sector Management Act 1994 (WA) considered - preconditions for exercise of power to make interim order not met - leave to appeal not granted 168 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Legislation : Industrial Relations Act 1979 (WA) s 7(1), s 26, s 26(1)(a), s 26(2), s 26(3), s 44, s 44(6), s 44(6)(ba), s 44(6)(ba)(i), s 44(6)(ba)(ii), s 44(6)(ba)(iii), s 44(12)(a), s 44(12a), s 49(2a) Public Sector Management Act 1994 (WA) Part 5, s 80, s 80A, s 81, s 81(1), s 81(1)(a), s 82A(3), s 82A(3)(b), s 82(1)(a) Residential Tenancies Act 1987 (WA) s 5(2)(d), s 12, s 12A, s 12A(1), s 15, s 15(1), s 15(2), s 15(2)(a), s 15(2)(b), s 15(2)(c), s 15(2)(d), s 15(2)(e), s 15(4), s 27A, s 32, s 59C, s 71, s 71(2)(a), s 71(2)(b), s 82 Government Employees' Housing Act 1964 (WA) Result : Appeal dismissed Representation: Counsel: Appellant : Mr M E Shipman and with him Mr K Rukunga Respondent : Mr S Thackrah and with him Ms M Elderfield Case(s) referred to in reasons: Burswood Resort (Management) Ltd v ALHMWU [2003] WAIRC 09550; (2003) 83 WAIG 3314 Civil Service Association of Western Australia v Director General of the Department for Community Development [2002] WASCA 241 Commissioner for Fair Trading v Voulon [2006] WASC 261 Deng v Managh (2013) WADC 58 Director General, Department of Education v State School Teachers' Union of WA Inc [2011] WAIRC 58; (2011) 91 WAIG 2307 Director General, Department of Education v United Voice WA [2013] WASCA 287 Grassby v R (1989) 168 CLR 1 House v The King (1936) 55 CLR 499 Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2005] WAIRC 03358; (2005) 86 WAIG 247 Re Burton; Ex Parte Rowell [2006] WASC 277 Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873 Williams v Spautz (1992) 174 CLR 509 Case(s) also cited: Aboriginal Legal Service of Western Australia Incorporated v Lawrence [2007] WAIRC 00435 Burswood Resort (Management) Ltd v The Australian Liquor, Hospitality and Miscellaneous Workers' Union, Western Australian Branch [2000] WASCA 386 Civil Service Association of Western Australia Inc v Shean, Chief Executive Officer, Disabilities Services Commission [2005] WAIRC 02043 Coal and Allied Operations Pty Ltd v Australia Industrial Relations Commission (2000) 203 CLR 194 Confederation of Western Australian Industry (Inc) v Federated Miscellaneous Workers Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1990) 70 WAIG 1281 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 H A Warner Pty Ltd v Williams (1946) 73 CLR 421 Martin v State Housing Commission (Unreported, WASC, Library No. 980122, 18 March 1998 MRTA of WA Inc v Tsakisiris (2007) 87 WAIG 2795 Norbis v Norbis (1986) 161 CLR 513 S v Director-General, Department of Racing, Gaming and Liquor [2012] WAIRC 00700 Schaefer v Housing Authority [2011] WASC 222 The Department of Education and Training v Weygers [2009[ WAIRC 00041 The Registrar v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1904 Reasons for Decision SMITH AP: Background 1 The Civil Service Association of Western Australia Incorporated (the CSA) seeks the leave of the Full Bench to appeal against a decision made by the Public Service Arbitrator (the Arbitrator) on 4 December 2013 dismissing an application for an interim order ([2013] WAIRC 01049). The decision was made following the convening of a compulsory conference pursuant to s 44 of the Industrial Relations Act 1979 (WA) (the Act) on 26 November 2013 consequent upon the filing of a notice of application by the CSA on 5 November 2013. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 169 2 The application for a s 44 conference was made because Ms Emma Hazelton who is a member of the CSA, and a public service officer employed by the Director General, Department of Housing (the employer), had been served with a notice under s 80 of the Public Sector Management Act 1994 (WA) (the PSM Act) which alleged that she had committed a number of acts which may constitute a breach of discipline. Attached to the application was a copy of a notice dated 7 October 2013 in which the following allegations were made: 1) You sublet your Government Regional Officers' Housing (GROH) residence at 6 Finch Street, Karratha to Ms Louisa Belotti between August 2012 and April 2013. 2) You breached the provisions of your Tenancy Agreement, the Residential Tenancies Act 1987 and the GROH Subletting Policy by soliciting payments from Ms Belotti for rent and other considerations. 3) You profited from subletting your GROH tenancy by receiving rent and other payments from Ms Belotti which were in excess of the sum total that you were required to pay the Department under your employee subsidised tenancy arrangements. 4) You concealed this arrangement from the Department by falsely advising that you had not received financial payments from Ms Belotti in respect of her occupancy at 6 Finch Street, Karratha, when this was raised with you by your supervisor in May 2013. 3 The notice also stated that if substantiated these actions may be in contravention of: y Section 80(c) of the Act, by committing an act of misconduct when you acted contrary to the public interest by: - corruptly taking advantage of your employment and employer subsidised GROH tenancy to seek a benefit for yourself, namely by subletting your GROH residence in breach of your Tenancy Agreement. - corruptly taking advantage of your employment and employer subsidised GROH tenancy to seek a benefit for yourself, namely by accepting financial payments for 'other considerations' as defined by the GROH Subletting Policy. - fraudulently taking advantage of your employment by profiteering from your employer subsidised GROH tenancy, namely by charging rent in excess of the sum total that you were required to pay to the Department. - breaching the trust placed in you as a public service officer by misusing Departmental resources for personal gain and profiteer from an illegitimate financial arrangement. - dishonestly concealing this arrangement by providing false information to the Department. y Section 80(b)(i) of the Act, by failing to observe section 9(b) of the Act. Specifically, it is considered that by misleading the Department, soliciting personal gain and profiteering from your employee subsidised GROH tenancy, you have contravened an obligation to 'act with integrity.…. and be scrupulous in the use of official information, equipment and facilities'. y Section 80(b)(i) of the Act, by contravening any provision of the Act applicable to an employee, namely section 9(a)(iii) of the Act which requires an employee to comply with the Department's Code of Conduct. Specifically, it is considered that your actions contravened a requirement to: - act ethically and with integrity in the public interest and not for personal gain; and - use the resources of the State in a responsible and accountable manner. y Section 80(b)(ii) of the Act, by failing to comply with the Western Australian Public Sector Code of Ethics requirement to exercise personal integrity and accountability in performing your functions as a public officer. 4 The notice informed Ms Hazelton that should it be found that she had committed a breach of discipline under s 82A(3)(b) of the PSM Act, the Department may take disciplinary action which may result in one or more penalties being imposed, and/or improvement action being required or no further action. 5 The notice also advised Ms Hazelton that pursuant to s 82(1)(a) of the PSM Act, she was suspended from duty on full pay until further notice. 6 By letter dated 29 October 2013, the CSA wrote to the employer on behalf of Ms Hazelton, challenging the alleged factual circumstances set out in the notice and challenging the employer's power to treat the matter as a breach of discipline. In the letter the CSA stated that the allegations were based on three fallacies: 1. A misreading of the provisions of the Public Sector Management Act 1994[PSM Act], sections 80, and 9(b) in particular, and a concomitant misreading of the definition of misconduct in the Corruption and Crime Commission Act 2003 [CCC Act], section 4; 2. Creating a nexus between allegations of a breach of tenancy obligations, which is the sole preserve of the Residential Tenancies Act 1987, with misconduct as defined by the PSM Act and the CCC Act [This nexus is not legally possible]; and 3. A consideration of malicious misinformation emanating from Karratha persons. There was no sublease. 7 In relation to point 3, the CSA stated in the letter the allegation related to a family friend who stayed with Ms Hazelton from August 2012 until April 2013 and did not pay rent. 170 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Matters pleaded in the application for a s 44 conference 8 In the application the CSA made submissions that: (a) the Arbitrator has power to intervene in disputes over the application of disciplinary proceedings in the PSM Act if the allegations are baseless; (b) as the allegations touch upon the rights of landlord and tenant, any dispute is within the exclusive jurisdiction of the Magistrates Court. Pursuant to s 12A of the Residential Tenancies Act 1987 (RT Act) there is no other avenue to deal with the dispute. 9 The CSA sought the following orders: (a) an interim order that the investigation ceases pending resolution by conciliation and arbitration; and (b) a final order that the allegations are baseless. 10 Attached to the application, was a copy of the lease agreement which is made between Ms Hazelton and the Department of Housing. The Public Service Arbitrator's reasons for decision 11 At the compulsory conference each party stated contentions of 'fact' upon which they relied and made a number of submissions. These were recorded in the Arbitrator's reasons for decision given on 4 December 2013 as follows ([2013] WAIRC 01048): At the compulsory conference, the Association asserted that the allegations made by the Department against Ms Hazelton were baseless. It was contended that Ms Hazelton permitted a close friend of long standing, to reside with her between December 2012 and April 2013, to assist her friend at a time of difficulty. The Association contended that Ms Hazelton's friend was never a tenant and there was no subletting of her property. Whilst it was acknowledged that Ms Hazelton received some monies from her friend, Ms Hazelton denied it was in the nature of rent, rather reflected some money for household expenses and some other monies in respect of a private loan. Moreover, the Association contended that the fact that Ms Hazelton had her friend staying with her over the relevant period was well known at the Departmental office in Karratha. In particular, the Association contended that as Ms Hazelton was a tenant of the Department under a written tenancy agreement, then any allegation as to subletting of the premises was a matter properly dealt with under the residential tenancies legislation. It was acknowledged that by cl 17 of the tenancy agreement, Ms Hazelton is not permitted to sublet the premises or assign her interests under the agreement. In short, the Association contended that the allegation of Ms Hazelton subletting her premises, had nothing to do with the employment relationship and is exclusively a residential tenancies matter. Accordingly, the Association contended that the Department had no capacity to undertake an investigation or proceed with a disciplinary matter against Ms Hazelton on the facts. The Department contended that the allegations against Ms Hazelton can properly form the basis of misconduct allegations under s 80(c) of the PSM Act. It was submitted by the Department that there is no prohibition on it proceeding to deal with the matter as it could pursue the matter as either a residential tenancy issue or an employment issue. It has elected to proceed under the PSM Act. The present stage of the matter involves an investigation to determine the facts. The Department contended it is only once the investigation process has been completed, that there can be some further consideration by the Department as to the factual basis for the allegations. Until that time, the Department submitted that it would be inappropriate to take any steps to cease the disciplinary process ([4] - [6]). 12 After the Arbitrator found that he had wide powers to make interim orders as will, in his opinion, satisfy the requirements of s 44(6)(ba) of the Act, he found: (a) The CSA effectively seeks the cessation of the disciplinary action on the footing that the matter involves the exclusive jurisdiction of the Magistrates Court in relation to a dispute solely dependent on a landlord and tenant relationship. (b) Whether or not the relationships of employer and employee on the one hand, and landlord and tenant on the other, are exclusive and independent, as contended by the CSA, may well be a matter which requires to be determined. On the other hand, the allegations themselves, without reaching any concluded view on the issue, may well be said to be capable of supporting allegations of misconduct under s 80 of the PSM Act. (c) It is not necessary at this point to reach a concluded view on any of these issues. At this stage of the proceedings, interim relief is sought by the CSA, to effectively terminate the disciplinary process. If such an order is made, it will not be, in effect, an interim order as contended by the CSA. It will, in effect, be a final order, terminating the disciplinary process in its entirety. Such an order would not be made pending further conciliation or arbitration between the parties. Nor could such an order enable conciliation or arbitration to resolve the matter in question, or lead to an encouragement of the parties to exchange or divulge attitudes or information which would assist in the resolution of the matter in question. In that sense, an interim order as sought would not, and indeed could not, satisfy the requirements of s 44(6)(ba) of the Act. (d) It would be open for Ms Hazelton and the CSA to agitate the issues raised in the application for interim relief, at the conclusion of the disciplinary process, and subject to its outcome, having regard to s 80A and s 82A(3) of the PSM Act. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 171 Grounds of appeal 13 Ground 1 of the appeal contends that the Arbitrator made an error of law when he dismissed the application because the application sought final but unspecified orders. The particulars are set out in the CSA's submissions as to why it says the Arbitrator erred. 14 Ground 2 of the appeal contends that the Arbitrator erred in law in finding that the interim relief sought by the CSA was to effectively terminate the disciplinary proceedings. CSA's submissions 15 The CSA accepts that the Arbitrator cannot issue final orders out of a compulsory conference. This appeal focusses on the power of the Arbitrator to issue interim orders out of a compulsory conference and the power to correct claims for relief under s 26 of the Act. The CSA submits the Arbitrator misconstrued the nature of the CSA's claim for interim relief in order to achieve a particular outcome. An interim order to suspend the investigation pending conciliation and arbitration was a legitimate outcome. If there was an issue with the wording of the interim order sought by the CSA, it could have been reformulated by virtue of s 26(1)(a) of the Act. 16 The CSA contends when the allegations made against Ms Hazelton are analysed it can be seen that these allegations are predicted on the existence of a sublease, and its existence, along with related issues which are within the exclusive jurisdiction of the Magistrates Court pursuant to s 12A of the RT Act. 17 The CSA sought an interim order to cease the investigation as a temporary measure pending the resolution of the substantive matter after the jurisdiction of the RT Act was resolved. Such an order was within the power of the Arbitrator. The CSA sought the interim order to suspend the investigation whilst the question of whether the employer had the ability to proceed with a disciplinary inquiry under s 80 of the PSM Act was referred for hearing and determination under s 44(12)(a) of the Act. The basis of the claim to be referred is a determination whether the CSA's contention that the provisions of the RT Act prohibit the employer from proceeding with the investigation, as matters covered by the RT Act cannot be part of disciplinary proceedings brought by an employer under the PSM Act (the substantive matter), is correct. Part of the substantive matter is whether a lease arrangement between an employer and employee can be the subject matter of a disciplinary inquiry brought under s 80 of the PSM Act. Another part of the substantive matter is the contention the employer's action is ultra vires because of the operation of s 12A of the RT Act. 18 The CSA concedes that an order that the allegations are baseless would be a final order. Such an order could only be made if the Arbitrator determined after a hearing that the jurisdiction of the employer was ousted by the exclusive jurisdiction created under the RT Act. 19 At no stage did the CSA seek to terminate the disciplinary proceedings. It was put to the Arbitrator that the application for a final order was in the alternative. 20 Whilst the CSA says that the giving of directions or orders under s 44(6) and s 26(2) of the Act involves the exercise of discretion, under s 26(3) of the Act, there is an obligation imposed upon the Arbitrator to afford the parties an opportunity of being heard. 21 If there was any doubt about the CSA's position, the Arbitrator should have exercised his power under s 26(2) or s 26(3) of the Act. There were two choices: (a) to sever the application for an interim order from the final order which could be done under s 26(1)(a) on the basis that the Arbitrator was not restricted to the specific claim; or (b) to seek clarification from the CSA as to whether it was seeking to terminate the disciplinary process in its entirety. 22 The essence of the second ground of appeal is that the Arbitrator, by finding that the interim relief sought was to effectively terminate the disciplinary proceedings, did not characterise the application correctly. There was a claim for an interim order that the investigation ceases pending resolution of the substantive matter by conciliation and arbitration. The CSA wanted the matter as to whether the RT Act ousted the jurisdiction of the employer to pursue disciplinary action under the PSM Act to be referred for hearing and determination. Until that issue was heard and determined, the CSA sought an interim order to suspend the investigation pending resolution by conciliation and arbitration. 23 The CSA says the preconditions for the making of an interim order under s 44(6)(ba)(i) and s 44(6)(ba)(ii) were met. In particular, the order sought would have prevented a deterioration of industrial relations in respect of the matter in question until conciliation and arbitration had resolved that matter. Also an interim order to suspend the investigation would have encouraged the parties to exchange or divulge attitudes or information which would assist in the resolution of the matter in question. The reason why the CSA says these preconditions were met was because there was an injustice being visited on the CSA's member, Ms Hazelton, and there was a jurisdictional bar upon the disciplinary matter which the CSA sought to have arbitrated. 24 The facts relevant to determining the substantive issue are: (a) All of the allegations are predicated on the existence of a sublease or otherwise and that Ms Hazelton profited from the sublease. These allegations arise from an alleged breach of a lease which is within the exclusive jurisdiction of the Magistrates Court under the RT Act. (i) Section 12A of the RT Act provides as follows: (1) The Magistrates Court has exclusive jurisdiction to hear and determine a prescribed dispute and such disputes are not justiciable by any other court or tribunal. 172 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. (2) A prescribed dispute is a minor case for the purposes of Part 4 of the Magistrates Court (Civil Proceedings) Act 2004 and the jurisdiction conferred by subsection (1) is to be exercised accordingly. (ii) '[P]rescribed dispute' is defined in s 12 of the RT Act to mean: any matter that may be the subject of an application under this Act, other than an application made under this Act that is, or involves, a claim for an amount over the prescribed amount, but includes an application made under clause 8 of Schedule 1, irrespective of the amount claimed. (b) Ms Hazelton has a discrete lease with the employer. There is no evidence of a written sublease between Ms Hazelton and Ms Belotti. (c) The protocol of the employer is that they follow a prescribed form of lease and if a sublease exists it would be a document in the form of a sublease. If there is a dispute about the existence or non-existence of a sublease, the RT Act is the jurisdiction under which one would resolve that dispute. All of the employer's allegations are premised on the existence of a sublease. These allegations are exaggerated and involve an attempt to extend the operation of the PSM Act beyond its scope as contemplated by Parliament. They are ultra vires. (d) Pursuant to s 27A of the RT Act, all tenancies are to be recorded in writing. Section 5(2)(d) of the RT Act excludes from the operation of the RT Act circumstances where the tenant is a boarder of a lodger. A lodger is someone who does not have exclusive possession of premises: Commissioner for Fair Trading v Voulon [2006] WASC 261. (e) The allegations of profiteering come within the scope of s 32 of the RT Act. The RT Act is a complete code for regulating any matter relating to a landlord and tenant relationship. If the RT Act is a code, then it follows that the PSM Act cannot be used to deal with disputes relating to government housing leases. Further, the employer has no authority to regulate government lease conditions by the use of policy. The terms and conditions must be set out in the lease. Any other changes may only be effected by regulation, not policy: see Director General, Department of Education v United Voice WA [2013] WASCA 287. The policy offends the prohibition on contracting out under the provisions of s 82 of the RT Act. Section 82 of the RT Act provides as follows: (1) Except as provided under this Act — (a) any agreement or arrangement that is inconsistent with a provision of this Act or purports to exclude, modify or restrict the operation of this Act is to that extent void and of no effect; and (b) any purported waiver of a right conferred by or under this Act is void and of no effect. (2) A person must not enter into any agreement or arrangement with intent either directly or indirectly to defeat, evade or prevent the operation of this Act. Penalty: a fine of $10 000. (f) The employer's position in effect is that Ms Hazelton has a service occupancy, rather than a leasehold. Thus, the employer can initiate a breach of discipline. This reasoning is wrong in fact and in law. The tenancy agreement and the employment contract are discrete documents. Clearly on the facts, Ms Hazelton had two relationships distinct from each other. The lease was not granted to her for the more effectual performance of her work. The lease was granted for recompense of her services. She had independent occupation of the premises. There is in effect a statutory barrier placed on the exclusive jurisdiction of the Magistrates Court to determine tenancy disputes. The barrier prevents any disciplinary inquiry under s 80 of the PSM Act. The most an investigator can do is identify a document that takes the form of a lease but the investigator cannot establish whether a sublease exists or not. In these circumstances, the employer does not have reasonable grounds to initiate a breach of discipline. (g) The jurisdictional bar prohibits an investigator from determining whether a sublease was in existence between Ms Hazelton and Ms Belotti. All the investigator can do is determine whether there is a document in existence which takes the form of a sublease. 25 On 29 January 2014, the CSA filed a submission in writing addressing why it contends that the matters set out in the notice to Ms Hazelton constitute a 'prescribed dispute' within the meaning of the RT Act. In its written submission it makes the following submissions: (a) A prescribed dispute means any matter that may be the subject of an application under the RT Act. By application of s 12A the Magistrates Court has exclusive jurisdiction to hear and determine that matter, if that matter may be the subject of an application under the Act: Re Burton; Ex Parte Rowell [2006] WASC 277. (b) In Deng v Managh (2013) WADC 58, Derrick J stated that matters that could be subject of an application under the RTA were prescribed disputes as defined by s 12 of the RT Act. It follows that the dispute between the CSA and the employer, subject to the dispute between the parties being a matter that 'could be the subject of an application' would therefore meet the test of a 'prescribed dispute' within the meaning of the RT Act. (c) Further by application of s 15(1) and s 15(4) of the RT Act, a breach of a residential tenancy is a matter that can be the subject of an application and thus meets the test of a prescribed dispute being a matter which can be the subject of an application under the RT Act. (d) If the dispute regarding the lease could be the subject of an application under the RT Act by satisfying the test in s 12 of the RT Act, the Magistrates Court has exclusive jurisdiction to hear and determine such a matter. Section 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 173 12A of the RT Act further mandates a prescribed dispute is not justiciable or should not be heard by any other court or tribunal other than the Magistrates Court. (e) It is settled the Magistrates Court as constituted in this jurisdiction has been found to be a competent court for the purposes of hearing a prescribed dispute. (f) The employer has conceded there was a breach of the residential tenancy agreement, arising from an alleged breach of a term of a periodic tenancy which prohibits a sublease without written consent of the owner. The CSA disputes the existence of a sublease. The CSA contends such a dispute falls within the ambit of either or any of s 15(1) and s 15(4) of the RT Act which allows for breaches of a residential tenancy agreement and s 59C of the RT Act which allows for the recognition of certain persons as tenants. (g) Section 15(1) of the RT Act allows for both lessor and tenant to make an application. Section 15(4) of the RT Act does not distinguish or define the applicant, thus allowing for any party to a tenancy agreement to make such an application. Section 59C of the RT Act provides for a person other than the owner or lessor of the property to make an application to determine the existence of a tenancy relationship and by extension the existence of a lease of sublease. It follows that a party other than the employer could make a valid application under these sections and by so doing satisfy the test of a prescribed dispute under s 12 of the RT Act. If that is so, it follows such a matter is within the exclusive jurisdiction of the Magistrates Court by application of s 12A of the RT Act. (h) The CSA submits that the breach of discipline alleged by the employer hinges on the existence of a sublease. The employer alleges a breach of a sublease, which is in breach of the residential tenancy agreement. A person other than the employer could have made an application both under s 15(1) and s 15(4) and s 59C of the RT Act to determine a dispute arising from a lease, making such an application a prescribed dispute under s 12 of the RT Act and thus enlivening s 12A of the RT Act. (i) When the facts of this matter are applied to the tests as defined in the RT Act, it follows the only logical conclusion that can be drawn is the dispute falls within the exclusive jurisdiction of the Magistrates Court. 26 At the hearing of the appeal, counsel on behalf of the CSA informed the Full Bench that the investigation by the employer had been completed. However, the disciplinary proceedings have not been concluded. In these circumstances, the CSA seeks an order that the appeal be upheld and the decision varied to suspend the disciplinary proceedings until conciliation has determined the issue whether the provisions of the RT Act render the investigation baseless and/or ultra vires. Alternatively, it seeks an order that the operation of the decision be suspended and the case be remitted to the Arbitrator for further hearing and determination. The employer's submissions 27 The employer submits that the subject of the appeal is not of such importance that in the public interest an appeal should lie. The central issue in this appeal is whether the Arbitrator erred in law in dismissing the application for an interim order. In the alternative, it says the decision of the Arbitrator contains no errors of law. If both of these submissions fail the employer contends that the decision can be upheld for different reasons than stated by the Arbitrator. 28 The employer points out that the CSA bears the onus of establishing that the subject of the appeal is of such importance that, in the public interest, an appeal should lie pursuant to s 49(2a) of the Act. The employer submits that the CSA has not discharged this onus. 29 The employer says the Arbitrator misstated the issue that would have been considered if this matter had proceeded to conciliation or arbitration. The question is not, as the Arbitrator put, whether or not the relationships of employer and employee and landlord and tenant are exclusive and independent as it is common ground between the parties that the relationships operate in different spheres, have different legal consequences, and that disputes arising out of the relationships may only be ventilated in forums with the appropriate jurisdiction. 30 The question that would have been considered if the matter had proceeded to conciliation and arbitration, being the issue that the employer says is in dispute between the parties, is as follows: In circumstances where an employee's employer is also their landlord, is a breach of lease capable of constituting an act of misconduct for the purposes of s 80 of the PSM Act? (the question) 31 The employer concedes that the question is one on which reasonable minds might differ. Accordingly, it would have been the subject of an argument at arbitration. However, argument on this question would not have been centred on jurisdiction as the exclusive jurisdiction granted to the Magistrates Court by s 12A of the RT Act is not expressed in terms of determining whether breaches of the residential tenancy agreement have occurred. Thus, there is no inconsistency or, to use the CSA's words, 'statutory barrier', or ultra vires in the interrelationship between the PSM Act and the RT Act. The determination of the issue would have centred on a straightforward determination of a preliminary question. Moreover, the answer to the question very much depends on the factual circumstances. For example, the employee's actual or constructive knowledge of the terms of the lease is relevant. In the case of Ms Hazelton, the employer was guided by the factual substratum that she worked for the very agency that administers housing under the Government Employees' Housing Act 1964 (WA) (the GEH Act), and therefore ought to have known that subleasing her premises constituted a breach of lease. 32 Furthermore, the question is only one question before the investigator that is potentially capable of determination by arbitration. The allegations go beyond a mere breach of lease to encompass 'corruptly taking advantage of employment', 'fraudulently taking advantage of employment', 'breaching trust placed in you as a public service officer by misusing Departmental resources for personal gain' and 'dishonestly concealing the arrangement by providing false information', not all of which are premised on the finding of a breach of lease. 174 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 33 As properly framed, the question involves no questions of law that have a broader relevance necessary to satisfy the public interest test. 34 The second submission made on behalf of the employer is that the Arbitrator did not make any errors of law. 35 The Arbitrator in his reasons described the orders sought by the CSA as being in the alternative. The employer concedes that it would have been more accurate to describe the orders sought as operating conjunctively. However, any unfortunate characterisation does not lead to the consequence that the Arbitrator fell into error in his findings. 36 The Arbitrator essentially found a conceptual error in the nature of the orders sought. He found that the difficulty with the orders sought by the CSA at this stage of the proceedings is that if such an order is made, it would, in effect, be a final order, terminating the disciplinary process in its entirety. 37 It is well established that orders made under s 44(6)(ba) of the Act must be interim or interlocutory and not finally dispose of a matter in question: Director General, Department of Education v State School Teachers' Union of WA Inc [2011] WAIRC 58; (2011) 91 WAIG 2307 [60] (Smith AP); Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873, 1882 - 1883; Burswood Resort (Management) Ltd v ALHMWU [2003] WAIRC 09550; (2003) 83 WAIG 3314 [44]. 38 The interim orders sought by the CSA to cease the investigation pending resolution by conciliation and arbitration at first blush might seem to be capable of being characterised as an interim order. Despite the unfortunate use of the word 'cease' as opposed to, for example, 'suspend', it is clear that what was being sought by the CSA was a temporary cessation of the disciplinary proceedings to enable the Arbitrator to make findings on, for example, the question the employer says should have been determined by conciliation and arbitration. 39 The Arbitrator applied the correct test, did take into account relevant material, did not mistake the facts and took account of all material considerations, and therefore cannot be said to have made an error in the sense of House v The King (1936) 55 CLR 499. 40 The Arbitrator turned his mind to the correct test being the criteria for the making of an interim order in s 44(6)(ba)(i) - (iii). He properly found that the proposed order to cease the disciplinary proceedings: (a) Would not be made pending further conciliation or arbitration between the parties, clearly considering and applying s 44(6)(ba)(i). (b) Could not enable conciliation or arbitration to resolve the matter in question, clearly considering and applying s 44(6)(ba)(ii). (c) Would not lead to an encouragement of the parties to exchange or divulge attitudes or information which would assist in the resolution of the matter of the question, clearly considering and applying s 44(6)(ba)(iii) of the Act. 41 If the Full Bench is not persuaded by the employer's submissions that the public interest is not satisfied and that the Arbitrator did not make any errors of law, the employer submits in the alternative that the Full Bench ought to uphold the order dismissing the application for interim orders for different reasons than that stated by the Arbitrator. 42 There were two distinct legal relationships between the employer and Ms Hazelton, being, a relationship of employer/employee; and a relationship of lessor/lessee. The former relationship is governed by the PSM Act and the Act; the latter relationship is governed by the RT Act. 43 The employer has only ever based its right to commence disciplinary proceedings against Ms Hazelton under Part 5 of the PSM Act, as it is legally obliged to do. During oral submissions counsel for the employer informed the Full Bench that it was the view of the employer that it could have taken action to serve a notice of termination of the lease under the RT Act but it has not done so; it has taken no action under that Act. 44 The employer is not denying the reality of the lessor/lessee relationship. However, it says that the employer/employee and lessor/lessee relationships are linked in the case of Ms Hazelton in two ways: (a) Firstly, employment in certain public service positions in certain geographical regions of Western Australia comes with an entitlement to subsidised housing under the GEH Act. The entitlement is advertised with the job, but is not necessarily incorporated as a term of the employment contract or award. (b) Secondly, the tenant is in breach of their residential tenancy agreement if they 'cease to be an employee in a Department (as defined in the GEH Act)' and the Department may terminate the residential tenancy agreement on grounds of that breach (see cl 18(1) of Ms Hazelton's residential tenancy agreement). 45 The commencement of employment disciplinary proceedings, even if a key element is whether a tenancy agreement was breached, is not a prescribed dispute under s 12A(1) of the RT Act. In essence, the CSA's contention is that if an investigator conducting a disciplinary inquiry under the PSM Act is required in the course of the inquiry to make a finding as to whether the employee was in breach of a residential tenancy agreement; such a finding would impermissibly interfere with the jurisdiction of the Magistrates Court. However, the exclusive jurisdiction granted to the Magistrates Court by s 12A of the RT Act is not expressed in terms of determining whether breaches of a residential tenancy agreement have occurred. Rather the exclusive jurisdiction is to 'hear and determine a prescribed dispute'. 46 A lessor may make an application under s 71 of the RT Act for an order terminating a residential tenancy agreement and for possession of the premises. While determining whether a breach of a residential tenancy agreement occurred is one step in considering an application under s 71, the Magistrates Court also needs to be satisfied of a range of other conditions before making orders for termination: for example, the correct provision of notice (s 71(2)(a)) and whether the breach justifies termination of the agreement (s 71(2)(b)). 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 175 47 In the same way that the Magistrates Court might consider the breach of a tenancy agreement in the course of dealing with a prescribed dispute, an investigator under Part 5 of the PSM Act might consider the breach of a tenancy agreement in the course of investigating whether misconduct has occurred. The former may lead to the termination of a tenancy agreement; the latter may lead to a finding of breach of discipline. 48 The employer says that it is clear that determining whether a breach of Ms Hazelton's tenancy agreement had occurred was only one of many preliminary steps the investigator had to take in conducting his inquiry into the allegations. For example, the investigator might have found a technical breach of the 'no sublease' term but found that in the circumstances, Ms Hazelton in doing so did not 'corruptly take advantage of her employment' or 'fraudulently take advantage of her employment'. In any case, the allegations were cast wider than a mere breach of lease. The allegations extend to 'dishonestly concealing the arrangement by providing false information to the Department'. 49 The existence or otherwise of a sublease between Ms Hazelton and Ms Belotti is a key finding of fact on which the investigator might base a conclusion that Ms Hazelton was in breach of cl 17 of her residential tenancy agreement. The CSA is simply wrong in its submission that s 27A of the RT Act 'requires all tenancies to be recorded in writing'. The existence or otherwise of a sublease is a matter solely for the investigator to determine. It is open to the CSA to make such submissions to the investigator on behalf of its member, however it is not a matter that is appropriate for the Arbitrator to make findings on following conciliation and arbitration. 50 When regard is had to the observations made by Anderson J in Civil Service Association of Western Australia v Director General of the Department for Community Development [2002] WASCA 241 [20]-[21] it would have been inappropriate for the Arbitrator at a conciliation and arbitration hearing, to effectively step into the shoes of an investigator who has only partly completed his investigation, take over the investigation, receive and consider evidence in an adversarial setting, and make findings on whether, for example, there was a sublease and consequently a breach of the residential tenancy agreement. The employer asserts that the inappropriateness of such a course of action directly falls out of the observations made by Anderson J that baselessness must be a conclusion founded on the nature of the allegations, not the testing of the evidence. To that extent, the employer concedes that the CSA's jurisdictional point might have been capable of being determined at a hearing before the Arbitrator, but solely on the basis of the construction of the allegations; it would not have been appropriate for the CSA to lead evidence as to the existence or otherwise of the sublease. 51 The employer filed further submissions on 31 January 2014, which addresses why it says the effect of s 12 and s 12A of the RT Act does not render beyond power any decision by an investigator that touches on matters falling within a prescribed dispute. In these submissions they put the following arguments: (a) It is not necessary for the Full Bench, in disposing of this appeal, to consider the substantive jurisdictional issue raised by the CSA. (b) The CSA correctly states that s 15(1) of the RT Act provides for either party to a residential tenancy agreement to claim that the other party has breached the agreement or that a dispute has arisen under the agreement. The CSA is also correct in stating that one of the parties, having claimed a breach or the existence of a dispute, 'may apply for relief to a competent court'. (c) Having made such an application for relief to the court, it therefore follows that the matter before the court is a prescribed dispute for the purposes of s 12A, and that therefore no other court or tribunal than the Magistrates Court may hear the application or hear and determine the prescribed dispute for the purposes of s 12A. (d) To succeed in an argument that an investigator is effectively usurping the jurisdiction of the Magistrates Court under s 12A when deciding on whether a lease has been breached, the CSA would need to establish that the Investigator is de facto hearing and determining a prescribed dispute. However the content of the prescribed dispute cannot be divorced from the relief sought in the competent court. (e) The Magistrates Court, being a court of inferior record is restricted to those powers granted to it by legislation. It has 'a limited jurisdiction which does not involve any generally responsibility for the administration of justice beyond the confines of its constitution': Grassby v R (1989) 168 CLR 1 [21] (Dawson J). Under s 15(2) of the RT Act, the only relief that may be granted to a party making an application are the orders set out in s 15(2)(a) to (e). (f) A lessor cannot simply apply to the court asking the court to find that the tenant has breached the residential tenancy agreement. It is not within the powers of the Magistrates Court under s 15(2) of the RT Act to make declaratory orders that a residential tenancy agreement has been breached. (g) There cannot be a prescribed dispute unless one of the parties to the dispute is seeking relief that could possibly be granted under the RT Act. If a 'prescribed dispute means any matter that may be the subject of an application under this Act', it is clear that it is not possible to make an application that seeks no relief other than bare declaratory orders. (h) If the CSA's arguments are taken to their logical conclusion, the parties are left with absurdity and unworkability in the following way. (i) The logical consequence of the CSA's argument for the employer is that when it 'is made aware, or becomes aware that [an] employee may have committed a breach of discipline' for the purposes of s 81 of the PSM Act, and that the breach of discipline is constituted by a breach of lease, the employer should not comply with its statutory obligation under s 81(1)(a) to, if it so decides, 'deal with the matter as a disciplinary matter under this Division in accordance with the Commissioner's instructions', but that it should rather test the preliminary issue of whether there was a breach of lease by making an application to the Magistrates Court. The problems with such a course of action are manifold. 176 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. (j) For a start, the RT Act imposes an adversarial process that is quite inappropriate in the context of a process under Part 5 of the PSM Act that Parliament intended to be objective, impartial and at arm's length from the employing authority. (k) Where the role of the employing authority under Part 5 of the PSM Act is to consider the nature of the allegations and to refer them to the investigator to make findings, the CSA would have the employing authority positively asserting a breach of lease. The threshold of the employing authority being made aware that the employee 'may have committed a breach of discipline' is much lower than such a positive assertion. (l) The employing authority, and any legal practitioners representing it, could not in good conscience (and consistent with the latter's obligations to the court) pursue a claim in the Magistrates Court that might meet the threshold test in s 81(1) of the PSM Act, but nevertheless not have a reasonable prospect of success. At the stage of commencing the disciplinary inquiry, it will not be known by the employing authority whether there is a live dispute on whether there was a breach. Without sending the allegations to the employee and commencing a disciplinary inquiry process (the very purpose of which is to dispense natural justice to the employee) the employing authority might very well be in a situation where it is ventilating an issue in the Magistrates Court that is simply not contested between the parties. To do so would be a waste of the court's time and resources. (m) In addition, such a course of action would be contrary to the requirement under s 81(1)(a) of the PSM Act to deal with disciplinary matters in accordance with the Commissioner's instructions. Instruction 1.2 of 'Commissioner's Instruction No. 3 Discipline - general' states that once a decision to deal with the matter as a disciplinary matter is made, the employing authority is to ensure the process undertaken to determine if a breach of discipline occurred is completed as soon as practicable. (n) Finally, it is arguable that the employing authority, in pursuing an action in the Magistrates Court under, for example, s 15 of the RT Act, not for the purpose of exercising or pursuing its rights under the residential tenancy agreement, but rather for the collateral purpose of assembling a factual foundation to a disciplinary inquiry under the PSM Act, would be seen by the Magistrates Court as perpetrating an abuse of process: Williams v Spautz (1992) 174 CLR 509. Leave to appeal 52 The order made by the Arbitrator was a 'finding' as defined in s 7(1) of the Act. This is because the order was interlocutory and did not finally dispose of the matter before the Commission at first instance. Section 49(2a) of the Act provides that an appeal does not lie from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie. In Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch [2005] WAIRC 03358; (2005) 86 WAIG 247, Ritter AP set out the meaning of the public interest requirement in s 49(2a) of the Act as follows ([12] - [13]): This subsection provides that an appeal does not lie from a finding unless, in the opinion of the Full Bench, the matter is of such importance that, in the public interest, an appeal should lie. The subsection focuses the attention of the Full Bench upon 'the matter'. It seems that a determination is to be made as to whether the matter, as opposed to individual appeal grounds, is of such importance that, in the public interest, an appeal should lie. Accordingly, it seems that the Full Bench may not form the opinion that an appeal should lie on only some of the grounds. In RRIA v AMWSU and Others (1989) 69 WAIG 1873, the Full Bench at 1879 said that the words 'public interest' in s49(2a) of the Act should not be narrowed to mean 'special or extraordinary circumstances'. As stated by the Full Bench, an application may involve circumstances which are neither special nor extraordinary but which are, because of their very generality, of great importance in the public interest. The Full Bench, on the same page, went on to say that important questions with likely repercussions in other industries and substantial matters of law affecting jurisdiction can give rise to matters of sufficient importance in the public interest to justify an appeal. The RRIA decision was cited with approval and applied in the recent Full Bench decision of CSA v Shean (2005) 85 WAIG 2993 at 2995-2997. 53 The CSA argues that it is the public interest that it be determined whether the RT Act acts as a statutory barrier for an employer to institute disciplinary proceedings which are tenancy disputes. This they say is a question that is not only of interest to all government officers who are lessees of government housing, but to employees of private employers who lease premises from their employer. However this question is not a matter that can be conclusively determined in this appeal as there were insufficient agreed facts before the Arbitrator. 54 The Arbitrator may have misinterpreted the first order sought by the CSA at the conference by finding such an order will in effect, be a final order. The employer submitted to the Full Bench that, despite the unfortunate use by the CSA of the word 'cease' as opposed to for example 'suspend', it is clear that what was sought by the CSA was a temporary cessation of the disciplinary proceedings to enable the Arbitrator to make findings. However, irrespective of whether the Arbitrator was led into error, in my opinion, the subject matter of this appeal is not of such importance that, in the public interest, an appeal should lie. 55 This appeal is an appeal against an order dismissing an application for an interim order. The reason why the order to dismiss was made was on two grounds: (a) An order requiring cessation of disciplinary proceedings would not be in effect an interim order; (b) The preconditions for the exercise of the power in s 44(6)(ba) of the Act were not met. 56 Whilst it is arguable the Arbitrator erred in making the first finding, in my opinion he did not err in making the second finding. Unless the preconditions for making an interim order are met, irrespective of the terms of an order that is sought, there is no power to make an interim order under s 44 of the Act. 57 There was nothing before the Arbitrator upon which it could be said the preconditions were met which would properly give rise to an argument that he should have formed the requisite opinion. Section 44(6)(ba) of the Act provides: 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 177 The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may — with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission — (i) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter; or (ii) enable conciliation or arbitration to resolve the matter in question; or (iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question; 58 Whilst the conditions of tenancy agreements made under the GEH Act may be of general interest to the members of the CSA, the allegations made in the notice served on Ms Hazelton deal solely with her conduct. The interim order sought by the CSA could not be said to be necessary to prevent the deterioration of industrial relations within the meaning of s 44(6)(ba)(i). To the contrary there was no material before the Arbitrator upon which such an opinion could have been formed. 59 It is also difficult to see how an interim order could have encouraged the parties to exchange or divulge attitudes or information which would assist in the resolution of the matter. There was no material before the Arbitrator which could have led him to form such an opinion. A bare statement by the CSA that such an order would assist in this regard without some explanation to the Full Bench as to how such an order would do so does not provide merit to such a submission. 60 Nor could the order sought be said to enable conciliation and arbitration of the matter in question (i.e. the substantive issue) within the meaning of s 44(6)(ba)(ii). An interim order to suspend the investigation into the allegations contained in the notice was not necessary to enable the issue of whether the RT Act acts as a statutory bar to disciplinary proceedings being instituted against Ms Hazelton, being referred for hearing and determination under s 44(12a) of the Act. To the contrary, an argument that the employer is prohibited from instituting and continuing disciplinary action under s 80 of the PSM Act by operation of s 12A of the RT Act is not a matter that can be determined in the absence of findings of fact. 61 In any event, Justice Anderson in Civil Service Association of Western Australia Inc v Director General of Department for Community Development made it clear that unless the allegations on the face of a notice of suspected breach of discipline are baseless, the Commission should not intervene in an investigation. In that matter his Honour made the following observations about the proper exercise of discretion conferred on the Arbitrator to intervene in an investigation of a breach of discipline under the PSM Act: (a) If an employer suspects that there may have been an actionable breach of discipline, and there are reasonable grounds for that suspicion, the employer ought to be allowed to carry out its own statutory duty to conduct an investigation [20]; (b) Prima facie it would not seem to be a proper exercise of discretion by the Arbitrator to stop the employer from doing so on the basis of the Arbitrator's own investigation of the facts [20]; (c) It is perfectly proper for the Arbitrator to stop baseless disciplinary proceedings. A judgment as to whether the proceedings are or are not baseless should be made by reference only to the matters alleged in the complaint (notice of suspected breach of discipline) [20]. 62 When these principles are applied to the facts of this matter, it cannot be said the allegations made against Ms Hazelton in the letter dated 7 October 2013 are baseless. The allegations set out facts upon which the employer relies in its allegation that Ms Hazelton may have committed an act or acts of misconduct. The terms of the letter also specify particulars of the acts of misconduct, which on their face not only appear to be serious, but relate to the alleged factual circumstances set out in the notice. 63 This appeal turns on its own facts and whether the preconditions for the making of an interim order were met which does not require the consideration of any new or novel point of law. 64 In any event, I am not satisfied the CSA's application for an interim order to suspend the investigation, had any merit. Firstly, I have some difficulty with the submission made by the CSA that the dispute between the CSA and the employer is a dispute that can be characterised as a prescribed dispute within the meaning of s 12 of the RT Act. The CSA is not and cannot (in the circumstances relied upon by the CSA) be said to a party to a residential tenancy agreement. The substance of the central argument put by the CSA is whether the employer and Ms Hazelton can be said to be in dispute about a matter that can be characterised as a 'prescribed dispute' within the meaning of s 12 and s 12A of the RT Act. 65 Secondly, inherent in the submissions made on behalf of the employer is the contention that, in my opinion, must be accepted, and that is the notice of suspected discipline simply sets out an allegation that Ms Hazelton entered into a sublease. The employer has not made a finding of such a fact. All the employer has done is formed a suspicion that Ms Hazelton had entered into a sublease. 66 Until an investigation is concluded neither the employer nor Ms Hazelton will be in a position to conclusively join issue in any 'dispute' as to whether a sublease was at the material time in existence. 67 In any event, whilst the employer specifies in the letter that Ms Hazelton entered into a sublease and breached the provisions of the RT Act by soliciting payment from Ms Belotti, the allegations are not confined to this allegation. In particular it is alleged that Ms Hazelton concealed the fact that she received payments from Ms Belotti and that Ms Hazelton falsely advised that she had not received such payments. Whilst some of these allegations raise an alleged breach of the provisions of the RT Act, it is difficult to see how an investigation of the matter without findings of facts being made would raise a matter that could be said to be the subject of an application under the RT Act, so as to be characterised as a 'prescribed dispute' within the meaning of s 12 of the RT Act. 178 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. 68 In the absence of any findings of fact it is difficult to ascertain with certainty what application or applications could be made under the RT Act. 69 If, for example, after the investigator interviews relevant persons, such as Ms Belotti, and obtains relevant documentation, a finding could be made whether Ms Belotti had exclusive possession of part or all of the premises in question so as to make a determination at law whether a sublease existed, or whether Ms Bellotti was simply a boarder or lodger. As counsel for the employer points out, the investigator may find there is no sublease but find there was an element of dishonesty or improper gain to justify an adverse finding. Alternatively, the investigator may find facts upon which a finding can be made that the allegations have no foundation. 70 There is also merit in the employer's submission that if the investigation or disciplinary proceedings were to be suspended, the parties would be left in limbo about the facts that may or may not be in dispute between the parties. Until the investigator makes a finding that the sublease is a live issue, the issue whether the provisions of the RT Act acts as a statutory bar to further proceedings cannot be determined. 71 In this appeal it would be premature for this Full Bench to determine whether s 12 and s 12A of the RT Act acts as a statutory bar at some later stage of the disciplinary process in this matter, as the determination of that issue will in part turn on the facts found by the investigator and the findings of the investigator that are accepted or rejected by the employer. 72 For these reasons, I am of the opinion that this matter is not of such importance that, in the public interest, an appeal should lie. 73 For these reasons, I am of the opinion that an order should be made to dismiss the appeal. BEECH CC 74 I agree that the matter is not of such importance that, in the public interest, an appeal should lie. I have read in advance the reasons for decision of the Acting President which I gratefully adopt and have nothing to add. SCOTT ASC 75 I have read a draft of the reasons for decision of her Honour, the Acting President. I agree with those reasons and have nothing to add. 2014 WAIRC 00077 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES THE CIVIL SERVICE ASSOCIATION OF WESTERN AUSTRALIA INCORPORATED APPELLANT -and- DIRECTOR GENERAL, DEPARTMENT OF HOUSING RESPONDENT CORAM FULL BENCH THE HONOURABLE J H SMITH, ACTING PRESIDENT CHIEF COMMISSIONER A R BEECH ACTING SENIOR COMMISSIONER P E SCOTT DATE TUESDAY, 4 FEBRUARY 2014 FILE NO. FBA 21 OF 2013 CITATION NO. 2014 WAIRC 00077 Result Appeal dismissed Appearances Appellant Mr M E Shipman (of counsel) and with him Mr K Rukunga Respondent Mr S Thackrah (of counsel) and with him Ms M Elderfield (of counsel) Order This appeal having come on for hearing before the Full Bench on 22 January 2014, and having heard Mr M E Shipman (of counsel) and with him Mr K Rukunga on behalf of the appellant and Mr S Thackrah (of counsel) and with him Ms M Elderfield (of counsel) on behalf of the respondent, and reasons for decision having been delivered on 4 February 2014, the Full Bench, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders — THAT the appeal be and is hereby dismissed. By the Full Bench (Sgd.) J H SMITH, [L.S.] Acting President. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 179 2014 WAIRC 00028 APPEALS AGAINST A DECISION OF THE COMMISSION IN MATTER NO. U 229 OF 2012 GIVEN ON 18 JULY 2013 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION FULL BENCH