WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Coram : COMMISSIONER T KUCERA Citation : 2024 WAIRC 00008 File No : PSAC 20 OF 2023 Catchwords : Industrial Law (WA) – Appeal against decision of Public Service Arbitrator – Dispute as to alleged denial of acting opportunities at higher level – Matter covered by Employment Standard – Jurisdiction of Arbitrator excluded Legislation : Industrial Relations Act 1979 (WA) s 23(2)(a), s 49(2)(a), s 80E(7)(b) Interpretation Act 1984 (WA) Public Sector (Breaches of Public Sector Standards) Regulations 2005 (WA) reg 3(1), reg 6(1), reg 6(3), reg 6(4), reg 8 and Part 3 Public Sector Management Act 1994 (WA) s 21(1), s 21(7), s 22A, s 97(1)(a), s 97(1)(c) Result : Appeal upheld Representation: Counsel: Appellant : Mr J Carroll of counsel Respondent : Ms J Lee of counsel Solicitors: Appellant : State Solicitor’s Office 104 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2493 Case(s) referred to in reasons: Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366. Australian Rail, Tram and Bus Industrial Union v Public Transport Association [2017] WAIRC 00830 97 WAIG 1689 Civil Service Association (Inc) v Department of Water and Environmental Regulation [2020] WAIRC 00216; (2020) 100 WAIG 325 Director-General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244; (2005) 86 WAIG 231 Pritchard v M 6:8 Legal Pty Ltd [2024] WASCA 4 Western Australian Prison Officers’ Union v Minister for Corrective Services [2014] WAIRC 00313; (2014) 94 WAIG 581 Western Australian Prison Officers’ Union v Minister for Corrective Services [2024] WAIRC 00139; (2024) 104 WAIG 332 Reasons for Decision THE FULL BENCH: Background 1 A dispute arose between the appellant and the respondent as to whether a member of the respondent, Mr Malik, an engineer employed by the appellant, had been unfairly denied opportunities to act in a higher level Project Director position, while employees in those higher positions take periods of annual leave for between two and six weeks at a time. 2 The respondent on behalf of Mr Malik contended that Mr Malik was not afforded opportunities to ‘act up’ in these circumstances, as other employees had done so. 3 A dispute came before the Arbitrator by way of a conference under s 44 of the Industrial Relations Act 1979 (WA). The industrial matter the subject of the conference application was found to be one of acting arrangements when an employee is on leave, as described by the learned Arbitrator at [40] of his reasons (see AB 62) as follows: 40 Noting the definition of ‘industrial matter’, there is little doubt a dispute about the application of a process an employer uses to decide which employee back fills or who acts up in a position when a more senior employee goes on leave, is something that affects or is relevant to an employee’s conditions of employment. 4 Whilst the appellant denied that it had acted unfairly in the case of Mr Malik, it also raised a jurisdictional objection. It was contended that an instrument made under the Public Sector Management Act 1994 (WA), the ‘Employment Standard’, applied to Mr Malik’s circumstances, and a relevant procedure had also been prescribed. Therefore, the jurisdiction of the Arbitrator was ousted. Whilst reliance was placed on s 23(2)(a) of the Act, it is s 80E(7)(b) that has application to the jurisdiction of the Arbitrator. 5 Section 80E(7)(b) of the Act provides as follows: (7) Despite subsections (1) and (6), an Arbitrator does not have jurisdiction to enquire into or deal with, or refer to the Commission in Court Session or the Full Bench the following — … (b) any matter in respect of which a procedure referred to in the Public Sector Management Act 1994 section 97(1)(a) is, or may be, prescribed under that Act. 6 Procedures can be made under s 97(1)(a) of the PSM Act which is in the following terms: 97. Commissioner’s functions under Part 7 (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, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of public sector standards; and … 7 In this case there was no dispute that such procedures have been made in the form of the Public Sector (Breaches of Public Sector Standards) Regulations 2005 (WA) which set out a process for dealing with alleged breaches of the Employment Standard. 8 Under s 21(1) of the PSM Act, the Public Sector Commissioner is responsible for issuing instruments, known as Commissioner’s Instructions, that establish standards applicable to the public sector. These Public Sector Standards are to establish minimum standards in relation to merit, equity and probity concerning a range of human resource management functions. On 21 February 2011, a standard known as the Employment Standard was made. By s 21(7) of the PSM Act, a Standard is taken to be subsidiary legislation for the purposes of the Interpretation Act 1984 (WA). 9 The Employment Standard commences with a ‘Statement of Intent’ as follows: The Commissioner’s instruction (CI) establishes the minimum standards of merit, equity and probity to be complied with by the employing authority of each public sector body when filling a vacancy. 10 Further, under the heading ‘Reference’ the Employment Standard provides that in making ‘employment decisions’, an employing authority must comply with the Employment Standard, as well as with another instrument, the Commissioner’s 2494 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 104 W.A.I.G. Instruction on ‘Filling a Public Sector Vacancy’. This was made at the same time as the Employment Standard. A CI of this kind deals with matters of procedure and process, as to how the objectives of the Employment Standard are to be carried into effect. 11 The CIs are made under s 22A of the PSM Act, and do not have the same legislative effect as Standards made under s 21 of the PSM Act. Both the Employment Standard and the CI seem to be intended to operate in conjunction with one another. Not only is this evident from the express terms of the ‘Reference’ section of the Employment Standard and also a similar part of the CI, but also by reason of the fact that both instruments have commonly defined terms as set out in the ‘Terminology’ sections of each. The CI also sets out detailed procedures for employing authorities to follow when giving effect to the Employment Standard. These include options for filling a vacancy; redeployment matters; advertising and non-advertising; and a range of other matters. 12 In the first paragraph of the operative part of the Employment Standard, it is said: The Employment Standard applies when filing a vacancy (by way of recruitment, selection, appointment, secondment, transfer and temporary deployment (acting)) in the Western Australian Public Sector. 13 In the ‘Terminology’ part of the Employment Standard, a number of terms used in it are set out. Relevantly are the terms ‘Acting’, ‘Employment decision’, ‘Employment Standard’ and ‘Vacancy’. These terms are as follows: Acting The temporary movement of an employee to the same or a higher classification level within the same public sector body. … Employment decision A decision to recruit, select, appoint, transfer, second or act an employee. … Employment Standard Sets out the minimum standards of merit, equity and probity to be complied with by the employing authority of each public sector body when filling a vacancy by recruitment, selection, appointment, transfer, secondment and temporary deployment (acting) activities. … Vacancy A vacant post, office or position within the public sector. A vacancy can result from the creation of a new office, post or position or by the temporary or permanent movement of another employee. … 14 As we have already noted, the same terminology is used in the CI. There is one difference in that the term ‘Acting’ in the CI has the added words ‘…The Employment Standard applies to acting at a higher classification level and where a person has applied for an acting opportunity, even if they are at the same level’ 15 Whilst it seems that there was only passing reference to the CI in the proceedings at first instance, both parties on the appeal made quite extensive reference to it in their submissions. Neither objected to the other taking this course and given it was used as an aid to construction of the terms of the Employment Standard, it should not be seen as raising a new issue for the first time on appeal: Western Australian Prison Officers’ Union v Minister for Corrective Services [2024] WAIRC 00139; (2024) 104 WAIG 332 at [21]-[30]. 16 The appellant at first instance contended that on the facts of this case, a person proceeding on annual leave for a short period created a ‘vacancy’ and thus, required the ‘filling of a vacancy’, as set out in the Employment Standard. As a procedure for resolving disputes about such matters is prescribed in the Regulations, this enlivened s 80E(7)(b) to deprive the Arbitrator of jurisdiction. 17 In his decision, the learned Arbitrator considered the terms of the Employment Standard when read with relevant provisions of the Regulations. In short, he did not consider that short periods of leave taken by a person, led to that person’s position becoming vacant. In reliance on a decision of Kenner C (as he then was) in Western Australian Prison Officers Union v Minister for Corrective Services [2014] WAIRC 00313; (2014) 94 WAIG 581, and also the dictionary definition of a ‘vacancy’, the learned Arbitrator concluded that the positions that the appellant contended Mr Malik was prevented from ‘acting up’ in, were not vacant. He concluded that such positions were not ‘empty’, nor could they be described as ‘having no occupant’, or ‘not occupied by an incumbent’, in reliance upon the Macquarie Concise Dictionary Sixth Edition definition of a ‘vacancy’. The learned Arbitrator did not rule out the Employment Standard applying where an employee goes on extended leave. 18 The learned Arbitrator also concluded that there were public policy benefits in the full rigour of the Employment Standard not applying to such circumstances. This would avoid the need for the advertising of such a short term vacancy and the need to notify the acting appointment decision to others, as to who had been selected to perform such work. Additionally, the learned Arbitrator considered provisions of the relevant industrial agreement, applying to Mr Malik’s employment, contemplating employees acting in higher positions for the purposes of career development, in addition to the payment of higher duties for such acting periods. The learned Arbitrator held that decisions as to such short term acting arrangements, are matters of managerial prerogative. The appeal 19 The appellant appeals against the learned Arbitrator’s decision dismissing the jurisdictional objection. There is one ground of appeal. It is as follows: 104 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2495 1. In finding that the Public Service Arbitrator had jurisdiction, the Public Service Arbitrator erred in law by finding, at [66] to [68], that the Employment Standard and the process under the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA) does not apply when an employee acts up in a position for which the substantive holder of the position is absent for a short term of 2–6 weeks because, on its proper construction, the Employment Standard applies in such circumstances. Finding 20 As the decision of the learned Arbitrator did not finally dispose of the matter to which the proceedings relate, it is a finding for the purposes of s 49(2)(a) of the Act. Accordingly, the appeal to the Full Bench cannot lie unless the Full Bench is of the opinion that the matter is of such importance that it should do so. The notion of the ‘public interest’ in this respect is a broad concept. In Australian Rail, Tram and Bus Industrial Union v Public Transport Association [2017] WAIRC 00830; (2017) 97 WAIG 1689 Smith AP (Scott CC Agreeing) observed at [68]: 68. When considering whether the matter is of such importance that in the public interest an appeal should lie, the principles are well established. In Rainbow Coast Neighbourhood Centre Inc v Wood [2011] WAIRC 00821; (2011) 91 WAIG 1831, the Full Bench observed in Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 1873 it was settled by a Full Bench unanimously [24]: [T]hat the words 'public interest' are not to be narrowed to mean 'special or extraordinary circumstances'. An application may involve circumstances which are neither special nor extraordinary. It may involve circumstances which, because of their very generality, are of great importance in the public interest. Each matter will be a question of impression and judgment whether the appeal has the required degree of importance. Also important questions that may have effect 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: Murdoch University v The Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2005) 86 WAIG 247 (Ritter AP) [13] - [14]. 21 In this case we am satisfied that the subject matter of the present appeal is of such importance that in the public interest the appeal should lie. Whether the terms of the Employment Standard apply to the circumstances under consideration is one of importance concerning application of the principles of merit, equity and transparency to appointments of the kind in question, and also whether the relevant procedures in the CI apply. It is also a matter going to the jurisdiction of both the Commission and the Arbitrator under the Act. Approach to the appeal 22 The appeal involves the proper construction of the Employment Standard, read with the CI. It does not involve consideration of the exercise of discretion. Accordingly, the correctness standard applies to the disposition of the appeal: Pritchard v M 6:8 Legal Pty Ltd [2024] WASCA 4 at [35]; Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158; (2019) 55 WAR 366. Contentions of the parties 23 The appellant contended that in reliance on D-G Department of Justice, the Regulations in regs 3(1), 6(1), (3), (4), 8 and Part 3 established procedures for employees and other persons to obtain relief in relation to alleged breaches of public sector standards. On this basis, as the Employment Standard is a public sector standard to which the procedure in the Regulations applies, then if the circumstances the subject of this dispute is a matter covered by the Employment Standard, then the Arbitrator had no jurisdiction to deal with the dispute before him. 24 After referring to relevant provisions of the Employment Standard which are set out above, the appellant also referred to the CI in cl 1.2 to the effect that public sector vacancies are to be filled by permanent appointments, or by permanent officers acting or seconded into positions. On the basis that the CI forms part of the scheme along with the Employment Standard in relation to the filling of public sector vacancies, the appellant contended that this provision is relevant to the question to be determined. 25 The appellant also referred to the definition of ‘vacancy’ in the Employment Standard and submitted that the term is not drafted in an exhaustive fashion. Accordingly, regard can be had to the ordinary meaning of the word ‘vacancy’. It was contended that whilst no doubt a vacancy may only be temporary, the ordinary meaning of the word can encompass the situation where an employee is on leave or is unable to perform the duties of their position temporarily. As someone on leave is entitled to be away from work and is not required to perform the duties of their position, it can be said that the person’s position is ‘unoccupied’, in accordance with its ordinary meaning. 26 It was also submitted that this approach to the interpretation of the meaning of ‘vacancy’ in the Employment Standard is consistent with the meaning of ‘Employment decision’, as set out above. This was said to be because, on the appellant’s argument, a decision to ‘recruit, select, second or act an employee’ does not require there to be no substantive occupant of the particular office, post or position, at the time that this decision is made. 27 As noted above, the appellant also called in aid the terms of the CI to support its view as to the proper approach to interpreting the Employment Standard. In particular, reliance was placed on the reference in the CI to the ability of a CEO of a public authority, when filling a vacancy (as defined in the same terms as in the Employment Standard) to do so by using a fixed term appointment to cover a period of ‘one-off relief’, as referred to in cl 1.2 of the CI. On this basis, such a one-off period of relief can apply to an employee who is on leave and who was not able to perform the duties of their position, with someone else being appointed in their stead to relieve the substantive occupant of the position for the relevant period. 28 The appellant maintained that adopting this approach to the interpretation of the Employment Standard and the CI, means that the terms of cl 1.2 of the CI would have work to do. Furthermore, such an approach is consistent with the overall purpose of the Employment Standard to provide transparency and applies the principles of merit and equity when employment decisions 2496 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 104 W.A.I.G. are being made. The appellant noted that while periods of leave may be as short as one week, they may also be lengthy, for example, when an employee who proceeds on parental leave, may be absent for a year or more. It was submitted that it would be inconsistent with the purpose of the Employment Standard for the latter circumstance not to be covered by it when other appointment decisions are. 29 Finally, in relation to the length of absences generally, the appellant also submitted that it was erroneous for the learned Arbitrator to draw a distinction between short and long term absences in determining whether the Employment Standard had application. The appellant submitted that the application of the Employment Standard does not depend on the length of an employee’s absence from duty. 30 On behalf of the respondent, it was contended that the industrial matter before the learned Arbitrator was not a matter in respect of which a procedure in s 97(1)(a) of the PSM Act is, or may be prescribed. The respondent referred to the CI in Parts 3 and 4, in relation to the requirements for filling a public sector vacancy. It was submitted that the only requirement of the CI in relation to short term acting appointments of less than six months, is an individual assessment of merit. 31 According to the respondent, this approach is also reflected in the Regulations. It was submitted that for the Employment Standard to be complied with, the requirements of the selection process must be met. As none of the selection processes set out in the CI have application to short term acting opportunities, as in the present matter, this means that the Employment Standard does not apply. 32 On this basis, according to the respondent, any process adopted by the appellant in selecting and appointing persons to temporarily act in a position, is not one covered by the Employment Standard. Because of this, the respondent argued that the Regulations do not, and cannot, provide a means for an employee to challenge a selection decision for a short term acting opportunity, as in the case of Mr Malik. 33 Furthermore, and to distinguish the circumstances of the present matter from those contemplated by the Employment Standard, the respondent referred to aspects of the industrial agreement applying to Mr Malik’s employment. It was contended that in cases where an employee proceeds on a short period of leave, a range of measures may be taken by the employer, including distributing the duties of the substantive position holder to other employees; directing the person acting to perform only some or a majority of the substantive office holders duties, as well as the employee’s own duties; not making any specific arrangements; or to have the substantive office holder’s duties performed by another employee. 34 It was therefore contended that these rights conferred on the employer under the industrial agreement, are inconsistent with the notion that in circumstances such as the case at hand with Mr Malik, a ‘vacancy’ is created to attract the operation of the Employment Standard. Consideration 35 As with any written instrument, especially those having legislative effect, ascertaining the meaning of the document must commence with the text. Due regard is to be given to circumstances where an instrument may not have been drafted by those with the expertise of parliamentary counsel, as applies to the interpretation of awards or industrial agreements, or other industrial instruments. In Civil Service Association (Inc) v Department of Water and Environmental Regulation [2020] WAIRC 00216; (2020) 100 WAIG 325, a case involving the interpretation of a CI made under s 22A of the PSM Act, Kenner SC (as he then was) said at [13]-[16]: Interpretation of CI 23 13 CI 23 is not an industrial instrument such as an award or an industrial agreement. It is an administrative instrument made under s 22A of the Public Sector Management Act 1994 (WA), although it is not considered to be subsidiary legislation for the purposes of the Interpretation Act 1984 (WA). Despite this however, I agree with the written submissions of the respondent that it is appropriate to interpret CI 23 in accordance with the usual cannons of statutory interpretation, making due allowance for the fact that it may not have been drafted with the skill, attention and felicity of expression of parliamentary counsel. 14 This being so, the starting point in the interpretation of CI 23 must be the text. In this respect, in Pearce D, Statutory Interpretation in Australia (8th Ed), 2019, the learned author, when dealing with the contemporary approach to statutory interpretation observes at par 2.1: 2.1 In a statement that has come to be quoted as the present basis for interpreting legislation, the plurality (Kiefel CJ, Nettle and Gordon JJ) in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; 91 ALJR 936 at [14] said: The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. The courts recognise that the application of this approach will in most cases lead a court to having to make what is commonly referred to as a 'constructional choice'. The following observations of Gageler J in SZTAL at [37]- [39] are important to the making of this choice: 104 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2497 …The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility 'if, and in so far as, it assists in fixing the meaning of the statutory text'. The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from 'a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural', in which case the choice 'turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies'. Integral to making such a choice is discernment of statutory purpose .... This chapter is concerned with how the courts arrived at this approach to statutory interpretation and the application of the approach in practice. As was noted in Australian Mines and Metals Association Inc v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCAFC 223; (2018) 363 ALR 343 at [79] 'the task of statutory construction can be assisted by a wide range of more specific principles of statutory construction, many of which have been developed by the courts, while others are now expressed in legislation'. The court observed that: Some caution is required in selecting and applying the non-statutory or common law principles. They are not inflexible rules and their application in particular circumstances can be nuanced. Moreover, there can be tension between some of the principles. They are not masters, but should be viewed as servants and tools of analysis in the task of statutory construction. The various Australian legislatures have also intervened in the process for making the constructional choice that a court must determine. This intervention is discussed after the common law approaches are outlined. 15 Consistent with longstanding authority too, the terms of CI 23 are to be construed as a whole. 36 The question to be answered in the present case involves difficult issues of construction. Whether the Employment Standard has application to a situation where an employee of a public authority takes leave, and another employee of the same public authority is appointed to ‘act up’ in the former’s position, while the incumbent is on leave, involves considering the terms of the Employment Standard, based on its text, read in the context of its intent and purpose. As will be discussed below, there is some inconsistency between relevant provisions of the instrument. In such cases, as referred to at [35] above, this will involve the need to make a constructional choice between a range of possible meanings and outcomes. 37 The issue is an important one because if the Employment Standard has application in these circumstances, then the Arbitrator has no jurisdiction in relation to disputes about such matters, because a procedure has been made under s 97(1)(c) of the PSM Act and s 80E(7)(b) of the Act operates. The exclusion of jurisdiction is broad and is not limited to circumstances where a breach of a Public Sector Standard is alleged. It is sufficient if the subject matter of the dispute concerns a matter in respect of which a relevant Standard and a procedure, have been prescribed: Director-General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244; (2005) 86 WAIG 231 per Wheeler and Le Miere JJ at [53] – [56] (Hasluck J generally agreeing). 38 Whilst the respondent contended that the CI does not provide for a selection procedure to deal with Mr Malik’s circumstances of a short term absence, and thus the Employment Standard, and consequently, the Regulations procedure have no application, this is not with respect, the correct approach. The application of the Employment Standard does not depend on whether an individual breach of a Standard claim can be made. On the authority of Director-General Department of Justice, if the ‘matter’ of filling a vacancy attracts the Employment Standard, given the Regulations have been made, that is sufficient to oust the jurisdiction of the Arbitrator or the Commission, irrespective of whether the CI procedure may apply in a particular case. If the Employment Standard applies the field is covered to the exclusion of the Commission or Arbitrator’s jurisdiction. 39 Nor in our view, does the application of the Employment Standard depend on the duration of an employee’s absence on leave. Nothing in the language of the instrument itself suggests that this matter is of significance in the interpretive process. 40 In the circumstances of a person who replaces another employee whilst on leave, and performs the duties of the latter person’s position, this would meet the meaning of the term ‘Acting’ under the Employment Standard, because it would involve the temporary movement of the acting employee into the same or a higher classification level. A ‘temporary deployment’ (acting) is also referred to in the first paragraph of the Employment Standard, as above. A decision by an employer to replace a person on leave, by an acting appointment, would also constitute an ‘Employment decision’, within the scope of this term in the Employment Standard, as also referred to above. 41 The key question however, for present purposes, is whether the absence of a person on leave from their substantive position, gives rise to a ‘vacancy’ for the purposes of the Employment Standard. Can a situation where someone is on a period of leave from work, be regarded as creating a ‘vacancy’, in the terms of the Employment Standard, and the CI, and paying due regard to the intent and purpose of the scheme established by them? 42 It is noted that the definition of ‘Vacancy’, refers to circumstances that may result in a vacancy. It says that a vacancy ‘can result from’ either a new position etc being created or ‘by the temporary or permanent movement of another employee. The question arising from this last sentence as to the meaning of the term, is whether it should be construed as the only circumstance in which a vacancy can arise, that is whether it has an exclusive meaning, or whether it is not intended to be so. 43 Given the approach to interpretation set out above, the intended meaning of the term ‘Vacancy’ should be taken from the words actually used by the draftsperson, read in context. It is noted that the draftsperson did not use words such as ‘shall mean’ or ‘means’, instead of the words ‘can result from’, when defining a vacancy for the purposes in the first paragraph of the term. This can be juxtaposed with the second paragraph of the defined term, which deals with the meaning of ‘Vacancy’ for 2498 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 104 W.A.I.G. redeployment purposes. The draftsperson in this paragraph has used different language to apply to this subject matter, where ‘a vacancy is defined as all offices, posts or positions, newly created, recently vacated or to be filled on a temporary basis in excess of six months’. This suggests that it was intended to confine the meaning of a vacancy for redeployment purposes to the circumstances set out in the paragraph. 44 The fact that the draftsperson used quite different language in the first paragraph of the term ‘Vacancy’, suggest it was intended that a different meaning apply, as illustrative, but not exhaustive, of the circumstances in which the general meaning of the term will apply. We do not think that this difference is explicable on the basis of infelicity of expression. It is not in any sense technical. There seems to have been a deliberate decision to use different language, understood in its ordinary sense. This should be accorded some significance, unless there is good reason not to do so. 45 If the second sentence of the term should be taken to be illustrative of but not confined to the examples set out, the focus shifts to the first sentence of the term. This is that a ‘Vacancy’ means a ‘vacant post, office or position within the public sector’. The ordinary meaning of the term ‘vacancy’ then arises. In the Shorter Oxford Dictionary, the relevant meaning of ‘vacant’ is ‘1. of a benefice, office or position, etc.: Not filled, held or occupied …’. Similarly, ‘vacancy’ means relevantly ‘2. The fact or condition of an office or post being; becoming or falling vacant; an occasion or occurrence of this … 3. A vacant or unoccupied office, post …’. Further, ‘occupy’ means relevantly ‘1. To take possession of,… 2. To hold possession of; to hold (a position or office) … 3….To be in or at (a place or position)…’ An absence of an employee on leave, without the requirement of the person to attend for duty and perform the duties of a position, is consistent with describing the position held by that person as ‘unoccupied’ for the period of the absence. 46 A further matter is, as noted above at [40], that on its face, an acting appointment to back fill a position while the incumbent employee is on leave, meets the term ‘Employment decision’ in the Employment Standard. This term is not qualified in any way. To make a decision to ‘act up’ Mr Malik, would constitute a decision to ‘act an employee’, consistent with this term. The term makes no reference to the need for a post, position or office to have no substantive occupant before an Employment decision can arise. There is some inconsistency between this term and the term vacancy. 47 As an aid to the construction of the Employment Standard, the fact that the CI applies to short term acting appointments in cl 4.1 and also to ‘one-off periods of relief’ in cl 1.2, with both constituting the filling of a public sector vacancy, attracting the operation of the CI, is indicative that the Employment Standard applies in such circumstances. Clause 1.2(a) of the CI expressly includes a one-off period of relief as a vacancy that a CEO may fill. Whilst the CI does not define what a ‘one-off period of relief’ means, in our view, as a matter of common sense, it must include a requirement to temporarily provide cover for a position when the position holder is not able to perform their duties for whatever reason, thus giving rise to a short term vacancy. How the CEO chooses to fill such a vacancy is dealt with in cl 1.1 that sets out the various employment options. This includes an acting appointment. It would be difficult to argue having regard to these provisions, that an employee, filling in on an acting basis, for another employee who is absent on annual leave, does not constitute a ‘one-off period of relief’. If this is so, it constitutes a vacancy for the purposes of the CI and the Employment Standard. 48 As part of making a constructional choice, context is to inform how the terms used should be construed. The context relevant to the present issue, is the purpose of the Employment Standard. In particular, regard is to be had to the principles of merit, equity, interest and transparency. These four principles underpin the Employment Standard. The interest principle makes specific reference to acting appointments, in that regard is to be had to the employee’s interests and work related requirements. It would be at odds with the intended purposes of these underlying principles if, in the case of an employee who, for example, proceeds on long term leave, such as parental leave that could and is often for a year or more, the Employment Standard would have no application in that case, but it would apply to all other cases. 49 When an employee is on annual leave for example, subject to the terms of any industrial instrument or relevant contract of employment, they are freed of the obligation to perform and to attend at work, but are entitled to be paid their wage or salary and will continue to generally accrue entitlements for the period of the leave. The contract of employment remains extant. The parties’ rights under the contract of employment remain. An employee or the employer may terminate the contract of employment whilst an employee is on paid leave, subject to any conditions attaching to the giving of and serving of notice in these circumstances. The specific conditions in the contract of employment attaching to a particular position, also remain intact while an employee is on paid leave. 50 The significance of this for present purposes is that the duties of the position, whilst remaining the subject of a contract of employment between the substantive position holder and the employer, are still required to be performed. The duties can only be performed by someone who is occupying the position. In these circumstances, it is consistent with the practical reality to regard the position as ‘unoccupied’, until another employee is appointed by the employer to temporarily occupy the position and perform the duties required by it. 51 In our view, on the facts of this case, where an employee proceeds on annual leave, and another employee ‘acts up’ in the first employee’s position for the period of the first person’s absence on leave, this attracts the Employment Standard and the CI. A vacancy occurs and it is filled, albeit temporarily. 52 An issue raised at first instance and considered by the learned Arbitrator was the burdens imposed by the CI in relation to the need to advertise vacancies and notify persons etc, in order to comply with procedural requirements for short term vacancies (see reasons at [69]-[73] AB 65). However, we note that this is contemplated by the CI in cl 4.1(b), where the only requirement for acting, secondment and fixed term contact opportunities of less than six months, where there is no likelihood of an extension, is an individual assessment of merit. This reflects what one would expect would occur in the ordinary course of an employer considering making a short term ‘acting up’ decision. That is an assessment is made, albeit informally, as to whether the person under consideration is suitable to undertake the higher level position. 104 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 2499 53 It is regrettable that the parties at first instance did not acquaint the learned Arbitrator with the terms of the CI in more detail as they have done on the appeal. Despite this however, it is for the Full Bench to reach its views on these matters independently of the decision of the learned Arbitrator. 54 As to the respondent’s submissions that the terms of reg 6(3) of the Regulations, setting out the standing of persons to allege a breach of a Standard, do not apply to short term acting appointments, as noted above, the ouster of jurisdiction as held in Director-General Department of Justice, is not dependant on an allegation of a breach. Irrespective of this, as noted by the appellant in response on this point, reg 6(4) confers a broad discretion on the Public Service Commissioner to accept a claim falling outside the scope of reg 6(3), if satisfied that there are reasonable grounds for a claim and written approval is granted for it to be made. 55 Finally, as to the respondent’s contentions that the terms of the relevant industrial agreement set out how higher duties may be applied, these cannot displace or modify the combined effect of s 80E(7)(b) of the Act and s 97(1)(a) of the PSM Act. If these provisions are engaged then the terms of an industrial instrument made under the Act cannot have any effect as the Arbitrator’s jurisdiction is excluded, by the operation of these statutory provisions. Conclusion 56 We have reached the conclusion that Mr Malik would be filling a vacancy when providing short term ‘acting up’ cover for another employee going on leave. Accordingly, we consider that the learned Arbitrator erred in his conclusion that he had jurisdiction to deal with the substantive dispute. We would uphold the appeal and the jurisdictional objection, and dismiss the application at first instance. 2024 WAIRC 00986 APPEAL AGAINST A DECISION OF THE PUBLIC SERVICE ARBITRATOR IN MATTER PSAC 20/2023 GIVEN ON 10 JANUARY 2024