CITATION : 2014 WAIRC 00478 CORAM : PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT- CHAIRMAN MS E McADAM - BOARD MEMBER MR G RICHARDS - BOARD MEMBER HEARD : MONDAY, 11 NOVEMBER 2013, THURSDAY, 5 JUNE 2014 DELIVERED : FRIDAY, 13 JUNE 2014 FILE NO. : PSAB 15 OF 2013 BETWEEN : BISCUIT NIGUSSIE BERKE Appellant AND DIRECTOR GENERAL, DEPARTMENT OF EDUCATION Respondent 756 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. CatchWords : Public Service Appeal Board — Termination of employment — Jurisdiction of the Public Service Appeal Board — Whether the appellant was a public service officer or government officer Legislation: : Industrial Relations Act 1979 s 7(1), s 80C, s 80C(1), s 80I, s 80I(1), s 80J Public Sector Management Act 1994 s 3, s 78 School Education Act 1999 s 235(1)(d) Result : Appeal dismissed for lack of jurisdiction Representation: Appellant : Mr A Asemahign as agent Respondent : Ms S Bhar Reasons for Decision 1 These are the unanimous reasons for decision of the Public Service Appeal Board (the Board). 2 The appellant claims that she was unfairly dismissed by her employer, the Department of Education. She appeals against what is said to have been a decision to dismiss. 3 The appellant was employed by the Director General, Department of Education, as a cleaner. As such, the appellant’s employment conditions are those set out in the Cleaners and Caretakers (Government) Award 1975 and the Government Services (Miscellaneous) General Agreement 10 of 2013. The respondent says that the appellant has no standing to bring the appeal and that the Public Service Appeal Board (the Board) is without jurisdiction to hear and determine the appeal on the basis that the appellant was not a public service officer or a government officer as defined. 4 Section 80J(b) of the Industrial Relations Act 1979 (IR Act) sets out who may institute an appeal under s 80I. It may be instituted by the public service officer or government officer concerned or by an organisation on his behalf. Therefore, to have standing to bring this appeal, the appellant must be either a public service officer or a government officer. 5 The Board’s jurisdiction is set out in s 80I – Board’s jurisdiction of the IR Act. Subsection (1) is that which is relevant and it provides: (1) Subject to section 52 of the Public Sector Management Act 1994 and subsection (3) of this section, a Board has jurisdiction to hear and determine — (a) an appeal by any public service officer against any decision of an employing authority in relation to an interpretation of any provision of the Public Sector Management Act 1994, and any provision of the regulations made under that Act, concerning the conditions of service (other than salaries and allowances) of public service officers; (b) an appeal by a government officer, who is the holder of an office included in the Special Division of the Public Service for the purposes of section 6(1) of the Salaries and Allowances Act 1975, under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section; (c) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary not lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed; (d) an appeal by a government officer, other than a person referred to in paragraph (b), under section 78 of the Public Sector Management Act 1994 against a decision or finding referred to in subsection (1)(b) of that section; (e) an appeal, other than an appeal under section 78(1) of the Public Sector Management Act 1994, by any government officer who occupies a position that carries a salary lower than the prescribed salary from a decision, determination or recommendation of the employer of that government officer that the government officer be dismissed, and to adjust all such matters as are referred to in paragraphs (a), (b), (c), (d) and (e). 6 As the appeal is said to be against a decision to dismiss, and is not a decision which arises under s 78 of the Public Sector Management Act 1994 (PSM Act), the Board can deal with an appeal against a decision to dismiss by s 80I(1)(c) or (e) of the IR Act. In either case, it is necessary for the appellant to be a government officer. 7 Government officer is defined in s 80C(1) of the IR Act: government officer means — (a) every public service officer; and (aa) each member of the Governor’s Establishment within the meaning of the Governor’s Establishment Act 1992; and 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 757 (ab) each member of a department of the staff of Parliament referred to in, and each electorate officer within the meaning of, the Parliamentary and Electorate Staff (Employment) Act 1992; and (b) every other person employed on the salaried staff of a public authority; and (c) any person not referred to in paragraph (a) or (b) who would have been a government officer within the meaning of section 96 of this Act as enacted before the coming into operation of section 58 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984, but does not include — (d) any teacher; or (e) any railway officer as defined in section 80M; or (f) any member of the academic staff of a post-secondary education institution; 8 In dealing with each of the categories of government officer, a public service officer is defined in s 7(1) of the IR Act as ‘a public service officer within the meaning of the [PSM Act]’. 9 The PSM Act defines a public service officer as: means an executive officer, permanent officer or term officer employed in the Public Service under Part 3. (s 3) 10 There is no evidence that the appellant was appointed as a public service officer. The appellant’s letter of employment (exhibit R1) says that the employment is as a fixed term employee in accordance with s 235(1)(d) of the School Education Act 1999 (SE Act). Section 235(1)(d) is that category of persons employed in the Department as ‘wages staff’. 11 Therefore, s 80C(1)(a) of the IR Act is not met. 12 There is no suggestion that the appellant was a member of the Governor’s Establishment and therefore, the provisions of s 80C(1)(aa) are not met. Nor was she a member of a department of the staff of Parliament or an electorate officer. Therefore, s 80C(1)(ab) is not met. 13 The only category which might apply to the appellant is that of a ‘person employed on the salaried staff of a public authority’ (s 80C(1)(b)). The respondent admits that the appellant was an employee and that the respondent is a public authority. The remaining question is whether she was employed on the ‘salaried staff’. 14 We note the decision of the Industrial Appeal Court in The Totalisator Agency Board v Edith Fisher (1997) 77 WAIG 1889, where Kennedy J examined the meaning of the term ‘salary’, being ‘Fixed payment made periodically to a person as compensation for regular work; now usually restricted to payments made for non-manual or non-mechanical work (as opposed to wages)’. 15 The Public Service Appeal Board in Gerad McGinty v Department of Corrective Services [2012] WAIRC 00054 noted at [11] that the employees covered by s 80C of the IR Act, being government officers, ‘are generally those in the administrative, technical and professional ranks of the public sector’. 16 Given that the appellant was employed as a cleaner, her duties were of a manual nature. Her employment was, pursuant to s 235(1)(d) of the SE Act, as part of the Department’s ‘wages staff’, it was not executive, administrative, technical or professional in nature. 17 In those circumstances, the appellant does not meet the requirements for being a government officer. Therefore, pursuant to s 80J of the IR Act, she has no capacity to institute the appeal, and the Board is unable to hear and determine any appeal pursuant to s 80I of the IR Act. 18 Accordingly, the appeal must be dismissed. 2014 WAIRC 00479 APPEAL AGAINST THE DECISION TO TERMINATE EMPLOYMENT ON 28 MAY 2013 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES BISCUIT NIGUSSIE BERKE APPELLANT -v- DIRECTOR GENERAL, DEPARTMENT OF EDUCATION RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD ACTING SENIOR COMMISSIONER P E SCOTT - CHAIRMAN MS E McADAM - BOARD MEMBER MR G RICHARDS - BOARD MEMBER DATE FRIDAY, 13 JUNE 2014 FILE NO PSAB 15 OF 2013 CITATION NO. 2014 WAIRC 00479 758 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 94 W.A.I.G. Result Appeal dismissed for lack of jurisdiction Order HAVING heard Mr A Asemahign as agent on behalf of the appellant and Ms S Bhar on behalf of the respondent, the Public Service Appeal Board, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this appeal be, and is hereby dismissed for lack of jurisdiction. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] On behalf of the Public Service Appeal Board. 2014 WAIRC 00427 APPEAL RE MISCONDUCT WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES SERGIO COOPER APPELLANT -v- ROYAL PERTH HOSPITAL - HUMAN RESOURCE SERVICES RESPONDENT CORAM PUBLIC SERVICE APPEAL BOARD COMMISSIONER J L HARRISON - CHAIRPERSON MS P MARCANO - BOARD MEMBER MR S GREGORY - BOARD MEMBER DATE FRIDAY, 23 MAY 2014 FILE NO PSAB 21 OF 2012 CITATION NO. 2014 WAIRC 00427 Result Discontinued Representation Appellant Ms K Heal (as agent) Respondent Mr P Heslewood Order This is an appeal to the Public Service Appeal Board (the Board) lodged in the Commission pursuant to s 80I of the Industrial Relations Act 1979. On 21 February 2013 the Board convened a scheduling conference. On 11 September 2013 the appellant filed a Notice of Withdrawal or Discontinuance in respect of this appeal. NOW THEREFORE, the Public Service Appeal Board, pursuant to the powers conferred on it under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby discontinued. (Sgd.) J L HARRISON, Commissioner, [L.S.] On behalf of the Public Service Appeal Board. 94 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 759 RECLASSIFICATION APPEALS— 2014 WAIRC 00459 WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES YASIR ARFAT APPLICANT -v- WA COUNTRY HEALTH SERVICE RESPONDENT CORAM PUBLIC SERVICE ARBITRATOR ACTING SENIOR COMMISSIONER P E SCOTT DATE FRIDAY, 6 JUNE 2014 FILE NO PSA 98 OF 2013 CITATION NO. 2014 WAIRC 00459 Result Application dismissed Order WHEREAS this is a reclassification appeal made pursuant to the Industrial Relations Act 1979; and WHEREAS on the 22nd day of November 2013 the Public Service Arbitrator convened a conference for the purpose of conciliating between the parties; and WHEREAS at the conclusion of that conference the applicant sought time to consider his position; and WHEREAS by email on the 16th day of May 2014 the applicant advised he wished to withdraw his application; NOW THEREFORE, the Public Service Arbitrator, pursuant to the powers conferred under the Industrial Relations Act 1979, hereby orders: THAT this application be, and is hereby dismissed. (Sgd.) P E SCOTT, Acting Senior Commissioner, [L.S.] Public Service Arbitrator.