WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2012 WAIRC 00921 CORAM : PUBLIC SERVICE APPEAL BOARD THE HONOURABLE J H SMITH, ACTING PRESIDENT- CHAIRMAN MS B CONWAY - BOARD MEMBER MR E ISAILOVIC - BOARD MEMBER HEARD : FRIDAY, 21 SEPTEMBER 2012 DELIVERED : THURSDAY, 11 OCTOBER 2012 FILE NO. : PSAB 7 OF 2012 BETWEEN : GLENN ROSS Appellant AND PETER CONRAN DIRECTOR GENERAL, DEPT OF THE PREMIER & CABINET Respondent Catchwords : Industrial Law (WA) - application for an interim order to stay disciplinary inquiry under Public Sector Management Act 1994 (WA) pending hearing of an appeal to Public Service Appeal Board - no jurisdiction to make the order sought - jurisdiction of Public Service Appeal Board considered. Legislation : Industrial Relations Act 1979 (WA) s 22B, s 26(1), s 26(3), s 27, s 27(1)(v), s 28, s 31, s 32, s 32(8), s 34(3), s 34(4), s 36, s 44, s 44(6), s 80H(3), s 80H(4), s 80I, s 80I(1)(a), s 80I(1)(b), s 80I(1)(c), s 80I(1)(d), s 80I(1)(e), s 80L(1), s 80L(2); Public Sector Management Act 1994 (WA). Result : Application dismissed Representation: Appellant : Mr G Ross, in person Respondent : Mr R J Andretich (of counsel) Solicitors: Respondent : State Solicitor's Office Case(s) referred to in reasons: Re The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch [2000] WASCA 233; (2000) 80 WAIG 4577 Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315 Reasons for Decision Background 1 The appellant filed a notice of appeal to the Public Service Appeal Board on 12 April 2012 against the decision of the respondent to commence disciplinary investigations on 5 April 2012. When the appeal was filed, the matter was allocated to a 1852 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. single Commissioner to constitute a Public Service Appeal Board with members pursuant to s 80H(4) of the Industrial Relations Act 1979 (WA) (the Act). An issue arose as to whether the appeal should be dealt with by a Public Service Appeal Board constituted under s 80H(3) of the Act by the President of the Commission as chairman as the appeal was brought under s 80I(1)(a) of the Act as an appeal by a public service officer against a decision of an employing authority in relation to an interpretation of a provision of the Public Sector Management Act 1994 (WA), concerning the conditions of service of public service officers. After submissions were filed in respect of that issue on 4 July 2012, the matter was allocated to the President to convene a Public Service Appeal Board under s 80H(3). 2 At a scheduling conference before the Public Service Appeal Board on 27 August 2012, the respondent made an application to strike out the appeal on two grounds as follows: (a) Whether the matter was lodged within time. (b) Res judicata, issue estoppel and abuse of process. 3 The parties agreed to file submissions in respect of these issues. The respondent filed its submissions and supporting documents on 3 September 2012 and the appellant filed his submissions and supporting documents on 18 September 2012. 4 On 12 September 2012, the appellant filed an application seeking an order to require the respondent to halt from proceeding with disciplinary inquiries whilst the appeal is being heard and determined by a Public Service Appeal Board. The application for an interim order was listed for a scheduling conference on 21 September 2012. At the scheduling conference, the appellant was informed by the members of the Public Service Appeal Board that it had no jurisdiction to make the interim order sought by the appellant. These reasons set out the reasons why the Public Service Appeal Board made that finding. Jurisdiction of the Public Service Appeal Board 5 Pursuant to s 80I of the Act, the Public Service Appeal Board has jurisdiction to hear and determine appeals by public service officers and government officers against particular decisions made by employing authorities, specified in s 80I(1)(a), s 80I(1)(b), s 80I(1)(c), s 80I(1)(d) and s 80I(1)(e) of the Act and to adjust all such matters as are referred to in those sections. 6 The power of the Board to deal with an appeal is found in s 80L(1) of the Act which provides that certain provisions of Part II, Division 2 of the Act apply to proceedings before the Public Service Appeal Board as follows: Subject to this Division the provisions of sections 22B, 26(1) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 34(3) and (4) and 36 that apply to and in relation to the exercise of the jurisdiction under this Act of the Commission constituted by a commissioner shall apply, with such modifications as are prescribed and such other modifications as may be necessary, to the exercise by a Board of its jurisdiction under this Act. 7 There is nothing in s 22B, s 26(1) or s 26(3) of the Act which provides a source of power to make the order sought by the appellant. Under s 22B of the Act, the Public Service Appeal Board is required in the performance of its functions to act with as much speed as the requirements of the Act and a proper consideration of the matter before it permit. Under s 26(1) of the Act, the Public Service Appeal Board in the exercise of its jurisdiction: (a) shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and (b) shall not be bound by any rules of evidence, but may inform itself on any matter in such a way as it thinks just; and (c) shall have regard for the interests of the persons immediately concerned whether directly affected or not and, where appropriate, for the interests of the community as a whole; and (d) shall take into consideration to the extent that it is relevant — (i) the state of the national economy; (ii) the state of the economy of Western Australia; (iii) the capacity of employers as a whole or of an individual employer to pay wages, salaries, allowances or other remuneration and to bear the cost of improved or additional conditions of employment; (iv) the likely effects of its decision on the economies referred to in subparagraphs (i) and (ii) and, in particular, on the level of employment and on inflation; (v) any changes in productivity that have occurred or are likely to occur; (vi) the need to facilitate the efficient organisation and performance of work according to the needs of an industry and enterprises within it, balanced with fairness to the employees in the industry and enterprises; (vii) the need to encourage employers, employees and organisations to reach agreements appropriate to the needs of enterprises and the employees in those enterprises. 8 Under s 26(3) of the Act, the Public Service Appeal Board in deciding any matter before it is expressly required to provide the parties with procedural fairness in that it is not entitled to take into account any matter or information that was not raised before it without notifying the parties and affording them the opportunity of being heard in relation to that matter or information. 9 Under s 27 of the Act, the Public Service Appeal Board may make a number of interlocutory orders and determine how an appeal is to be heard. Section 27 provides as follows: 92 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1853 (1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it — (a) at any stage of the proceedings dismiss the matter or any part thereof or refrain from further hearing or determining the matter or part if it is satisfied — (i) that the matter or part thereof is trivial; or (ii) that further proceedings are not necessary or desirable in the public interest; or (iii) that the person who referred the matter to the Commission does not have a sufficient interest in the matter; or (iv) that for any other reason the matter or part should be dismissed or the hearing thereof discontinued, as the case may be; and (b) take evidence on oath or affirmation; and (c) order any party to the matter to pay to any other party such costs and expenses including expenses of witnesses as are specified in the order, but so that no costs shall be allowed for the services of any legal practitioner, or agent; and (d) proceed to hear and determine the matter or any part thereof in the absence of any party thereto who has been duly summoned to appear or duly served with notice of the proceedings; and (e) sit at any time and place; and (f) adjourn to any time and place; and [(g) deleted] (h) direct any person, whether a witness or intending witness or not, to leave the place wherein the proceedings are being conducted; and (ha) determine the periods that are reasonably necessary for the fair and adequate presentation of the respective cases of the parties to the proceedings and require that the cases be presented within the respective periods; and (hb) require evidence or argument to be presented in writing, and decide the matters on which it will hear oral evidence or argument; and (i) refer any matter to an expert and accept his report as evidence; and (j) direct parties to be struck out or persons to be joined; and (k) permit the intervention, on such terms as it thinks fit, of any person who, in the opinion of the Commission has a sufficient interest in the matter; and (l) allow the amendment of any proceedings on such terms as it thinks fit; and (m) correct, amend, or waive any error, defect, or irregularity whether in substance or in form; and (n) extend any prescribed time or any time fixed by an order of the Commission; and (o) make such orders as may be just with respect to any interlocutory proceedings to be taken before the hearing of any matter, the costs of those proceedings, the issues to be submitted to the Commission, the persons to be served with notice of proceedings, delivery of particulars of the claims of all parties, admissions, discovery, inspection, or production of documents, inspection or production of property, examination of witnesses, and the place and mode of hearing; and (p) enter upon any manufactory, building, workshop, factory, mine, mine-working, ship or vessel, shed, place, or premises of any kind whatsoever, wherein or in respect of which any industry is or is reputed to be carried on, or any work is being or has been done or commenced, or any matter or thing is taking or has taken place, which is the subject of a matter before the Commission or is related thereto; and (q) inspect and view any work, material machinery, appliance, article, book, record, document, matter, or thing whatsoever being in any manufactory, building, workshop, factory, mine, mine-working, ship or vessel, shed, place or premises of a kind referred to in paragraph (p); and (r) question any person who may be in or upon any such manufactory, building, workshop, factory, mine, mine-working, ship or vessel, shed, place or premises in respect or in relation to any such matter or thing; and (s) consolidate or divide proceedings relating to the same industry and all or any matters before the Commission; and (t) with the consent of the Chief Commissioner refer the matter or any part thereof to the Commission in Court Session for hearing and determination by the Commission in Court Session; and (u) with the consent of the President refer to the Full Bench for hearing and determination by the Full Bench any question of law, including any question of interpretation of the rules of an organisation, arising in the matter; and 1854 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 92 W.A.I.G. (v) generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter. (1a) Except as otherwise provided in this Act, the Commission shall, in relation to any matter before it, conduct its proceedings in public unless the Commission, at any stage of the proceedings, is of the opinion that the objects of the Act will be better served by conducting the proceedings in private. (2) The powers contained in subsection (1)(p), (q) and (r) may, if the Commission so directs in any case, be exercised by an officer of the Commission or by an expert to whom any matter has been referred by the Commission. 10 Although s 27(1)(v) of the Act enables the Public Service Appeal Board to generally give all such directions and do all such things as are necessary or expedient for the expeditious and just hearing and determination of the matter, it is clear that that provision is not a provision that creates a substantive head of power to enable an interim order to be made to restrain a party to an appeal from carrying out any act. The Industrial Appeal Court made this plain in Robe River Iron Associates v Federated Engine Drivers’ and Firemens’ Union of Workers of Western Australia (1986) 67 WAIG 315 in which it held that the Commission erred in making an order in the nature of an interim injunction, pending the arbitration of a dispute under s 44 of the Act. The order was made at a time when the Commission did not have any specific powers to make interim orders under s 44 of the Act. When making the impugned order, the Commission relied on s 27(1)(v) of the Act. The Industrial Appeal Court unanimously held that the Commission did not have the power to do so. Justice Brinsden held that s 27(1)(v) of the Act does not confer substantive jurisdiction, but merely legislates the method by which the Commission may exercise the jurisdiction already conferred upon it by other sections of the Act (317). Justice Kennedy made a similar observation and found that s 27(1)(v) of the Act was limited essentially to procedural matters (318). The Industrial Appeal Court later applied these findings in Robe River Iron Associates in Re The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers – Western Australian Branch [2000] WASCA 233; (2000) 80 WAIG 4577. 11 After the decision of the Industrial Appeal Court in Robe River Iron Associates, Parliament enacted amendments to s 44 of the Act which enables the Commission under s 44(6) of the Act to make interim orders under s 44(6). Orders can be made under s 44(6) which operate in effect like an interlocutory injunction by enabling the status quo to remain in place, whilst a matter is heard and determined by the Commission. Similar powers to s 44(6) of the Act are also contained in s 32(8) of the Act. However, the Public Service Appeal Board has no jurisdiction to act under s 44 or s 32 of the Act, as this is not a provision specified under s 80L of the Act. 12 Section 28 of the Act is not material as it simply confers power on the Public Service Appeal Board to exercise any of the powers in s 27 at any time after an appeal has been lodged. Nor is s 31 of assistance, as s 31 and s 80L(2) deals with representation of parties. Section 34(3) and s 34(4) prohibits review by prerogative writ. Section 36 simply requires a decision of the Public Service Appeal Board be sealed, deposited and open for inspection in the office of the Registrar. 13 For these reasons, the Public Service Appeal Board has no power to deal with the applicant’s application for an order to require the respondent to halt from proceeding with disciplinary inquiries while the substantive appeal is being heard by the Public Service Appeal Board in PSAB 7 of 2012. An order will now issue dismissing the appellant’s application for an interim order to stay proceedings. 2012 WAIRC 00922 APPLICATION FOR AN INTERIM ORDER IN RELATION TO AN APPEAL AGAINST A DECISION GIVEN ON 5 APRIL 2012