WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2015 WAIRC 00981 CORAM :PUBLIC SERVICE ARBITRATOR Commissioner S J Kenner HEARD : THURSDAY, 26 MARCH 2015, MONDAY, 29 JUNE 2015, FRIDAY, 3 JULY 2015, FRIDAY, 23 OCTOBER 2015 DELIVERED : TUESDAY, 3 NOVEMBER 2015 FILE NO. : PSA 1 OF 2015 BETWEEN : Cheryl Belinda Jones Applicant AND Western Australian Police Respondent Catchwords : Industrial Law (WA) - Reclassification appeal - Principles applied - Work presently performed is largely accommodated within existing JDF - Not persuaded that appellant has established a significant net addition to the value of the work attached to the position - Appellant previously performed higher level duties - Special allowance did not adequately compensate appellant for the value provided to the respondent - Arbitrator not restricted to the specific claim made - Jurisdiction to be exercised consistent with equity, good conscience and the substantial merits of the case - Arbitrator limited to matters concerning the salary ascribed to "the office" occupied by the individual officer - Despite a clear inequity, not persuaded that Arbitrator has jurisdiction and power to make an order for compensation - Substantive appeal dismissed - Recommendation that respondent make a further payment to the appellant in recognition of the higher level work she performed for some years Legislation : Industrial Relations Act 1979 Public Service Award 1992 Result : Upheld in part Representation: Counsel: Appellant : Mr K Rukunga of counsel and with him Ms K Hagan of counsel Respondent : Ms J Brennan and with her Mr A Chapple and later Ms Rhodes of counsel Solicitors: Appellant : Civil Service Association of Western Australia Inc. Case(s) referred to in reasons: United Voice WA v The Minister for Health (2014) 95 WAIG 178 Minister Controlling Harbour and Light Department v Maritime Workers Union of WA (1982) 62 WAIG 820 Health Services Union of Western Australia (Union of Workers) v Director General of Health (2008) WAIRC 00215 Director-General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244 Megan Maree In De Braekt v Chief Executive Officer of the Department of Productivity and Labour Relations (2000) 80 WAIG 3040 BHP Billiton Iron Ore Pty Ltd v CFMEU [2006] WASCA 49 Flashman and Ors v Attorney General (2012) WAIRC 00294 The Civil Service Association of Western Australia Incorporated v Commissioner, Public Service Commission (1992) 72 WAIG 2595 Case(s) also cited: Newman v Italiano (2011) WAIRC 00875 === REASONS FOR DECISION === ¶1 The appellant Ms Jones is employed as the Manager, Taxation Compliance Unit with the respondent WA Police. She was appointed to this position in February 2008. The position is classified as a Level 6 position and is within the Taxation and Accounting Services Branch of WAPOL. ¶2 In November 2013 Ms Jones sought to have her position reclassified. Ms Jones maintained at that time that her position, last reviewed in April 2001, had evolved from essentially a compliance focussed position, responsible for preparing Goods and Services Tax and Fringe Benefits Tax returns for WAPOL, to a broader, more strategically focussed position. Ms Jones maintained that the job she then performed had developed into a leadership role in both tax and risk management. ¶3 In terms of internal reporting relationships, Ms Jones contended that while within the intended formal structure her position reported to the Level 7 Executive Manager, Taxation and Accounting Services position, in practice, for all intents and purposes, Ms Jones reported directly to the higher Level 9 position of Director of Finance. In support of her request for the reclassification of her position, Ms Jones provided to WAPOL a Reclassification Evaluation Report dated July 2013, undertaken by Shelby Consulting. The Shelby Consulting Report concluded at p 11 that in relation to the work value of Ms Jones’ position: The position plays a key role in managing the taxation risk and ensuring compliance on behalf of WA Police. It has significant autonomy and requires leadership and complex problem analysis and resolution skills. The significant tactical and strategic influence of the role suggests a work value in the order of upper middle level management which is comparable to a Level 7 classification. ¶4 The report further concluded that from a comparative summary of both external and internal positions and the performance of a BIPERS assessment, a Level 7 classification was appropriate. In particular, the Report in summary at p 17 said: The position of Executive Manager, Indirect Taxation was last formally reviewed in April 2001. Since this time the role has evolved from the hands on preparation of the GST and FBT returns to a strategic role of indirect tax management and providing indirect tax related advice to the Director Finance and senior management. It leads the Indirect Taxation Unit and is responsible for identifying tax related initiatives and influencing decision making in terms of taxation policy and processes. The position plays a key role in managing taxation risk and ensuring compliance on behalf of WA Police. It has significant autonomy and requires leadership and complex problem analysis and resolution skills. The significant tactical and strategic influence of the role suggests a work value in the order of upper middle level management which is comparable to a Level 7 classification. The BIPERS assessment and the comparative assessment also support classification of the position at Level 7. Overall, the classification evidence identified supports classification of this critical finance position, at level 7. ¶5 The recommendation of the Report was that Ms Jones’ position be reclassified as Executive Manager Indirect Taxation, Level 7 and that Ms Jones, having undertaken the higher level duties and responsibilities for greater than 12 months, receive a personal reclassification with the position. ¶6 As a consequence of other major organisational reform within WAPOL at the time, and the State Government’s recruitment freeze, no further progress was made in relation to Ms Jones’ reclassification request until about August 2014. As a consequence of an internal review undertaken by the Workplace Relations Branch of WAPOL, which concluded in January 2015, it was recommended that Ms Jones’ position not be reclassified. In terms of work value, the Review accepted that Ms Jones’ performed higher level responsibilities and had considerable autonomy for taxation related matters. The Review accepted Ms Jones’ contention that contrary to the intended reporting structure in the Taxation and Accounting Branch, Ms Jones did not in fact report to the Executive Manager but rather, to the Director of Finance. ¶7 However, whilst accepting the central propositions advanced by Ms Jones, the Review contended that the additional responsibilities performed by Ms Jones only continued from 2008 until 31 December 2013, when Ms Jones was directed by the Chief Finance Officer to cease performing higher level work. This later assertion was disputed by Ms Jones. ¶8 In relation to what the Review referred to as the “claimed period”, from May 2007 when the position was last reviewed, until July 2013, when Ms Jones’ reclassification request was made, the Review concluded at p 6 that: As the comparative position is responsible for the entire Taxation and Accounting Services Branch, it is reasonable to assume that the level of responsibility and accountability would be higher than that of the review position which is responsible for the Taxation Compliance Unit only. However, in reality, during the claimed period and under the direction of the DOF at the time, the comparative position managed the Accounting Services Unit only and the review position was given significant autonomy over the Taxation Services Unit working independently with little or no input from the comparative position. The review position reported directly to the DOF in almost all matters relating to Taxation. During this claimed period, the level of liaison of both positions was similar. Although the functions of the comparative and review positions appear similar, the main difference is the breadth to which these functions extend. The structure suggests that the comparative position is the head of and responsible for the entire Taxation and Accounting Services Branch and should have end of line responsibility for the services provided by both the Units in the Branch. However, during the claimed period, full autonomy was provided to the review position in relation to all taxation matters and the comparative position had little or no involvement in this area. As such, during the claimed period, the autonomy, decision making and end of line responsibility in all matters relating to taxation lay with the review position, thus increasing its work value from when it was created at Level 6. ¶9 The Review also concluded that applying the Mercer Cullen Egan Dell position evaluation assessment during the claimed period, the position Ms Jones occupied fell within the range for a Level 7 classification. ¶10 Despite a number of the findings of the Review being supportive of the claim made by Ms Jones, the Review came to the conclusion that the position should not be the subject of a reclassification. In particular, flow on effects and staffing implications were seen as a major impediment. In this respect, the Review noted at p 9 as follows: 5. FLOW-ON EFFECTS If the review position was to be reclassified to Level 7, there would be significant impact to the work value and current classification level of the Executive Manager, Taxation and Accounting Services Branch (Level 7). Additionally, the reporting structure would not be sound and would result in the requirement for a restructure of the Taxation and Accounting Services Branch. This view has also been confirmed and supported by the now A/Chief Finance Officer (CFO) (Level 9) Ms Santa Cardenia and the Executive Manager, Taxation & Accounting Services Branch (Level 7) Mr Ian Holt. ¶11 Instead, in recognition of the performance of the higher level work by Ms Jones, a temporary special allowance was recommended to be paid to her. ¶12 In these appeal proceedings, Ms Jones contended that the conclusion reached by WAPOL in the Review was erroneous and that the Shelby Report correctly examined the position that Ms Jones occupied, and came to the proper conclusion that a Level 7 classification was warranted. In her evidence Ms Jones testified that from the time she was appointed to her position and the Executive Manager Tax and Accounting Services Mr Holt was appointed to his position, the intended structure did not operate. She testified that she managed the Tax Compliance Unit independently and reported directly to the then Director of Finance Mr de Mamiel, while Mr Holt managed the Accounting Services Branch. Ms Jones said that both she and Mr Holt attended manager’s meetings and planning days on behalf of the taxation and accounting areas respectively. According to Ms Jones, this went on for some years. ¶13 In about 2010 Ms Jones said that she discussed this operational structure with the Director of Finance who in turn referred her to Shelby Consulting to review the classification of her position. This duly commenced but because of other matters, the process was placed on hold. It was finally completed in July 2013 which, as noted above, recommended that Ms Jones’ position be reclassified to Level 7 and that the position be retitled Executive Manager Indirect Taxation. There were further delays as a result of the major organisational change within WAPOL and in about March 2014, Ms Jones testified that she raised with Ms Cardenia, the then Acting Chief Finance Officer, what the status was in relation to her reclassification. At that time the response was that the process would have to again be placed on hold, because of the Government’s then recruitment freeze in the public sector. ¶14 Ms Jones then referred to the recommencement of the process, when she had discussions with Ms Soares, WAPOL’s Workplace Consultant who was conducting a review of her position in August 2014. Further contact was made by Ms Jones with Ms Soares in early 2015 to ascertain the status of her reclassification request. She became aware by letter of 6 February 2015, that her reclassification request was not supported. In particular, Ms Cardenia did not consider there was an ongoing requirement for higher level work. It was Ms Jones’ evidence that there was no express indication, written or oral, from Ms Cardenia for her to cease undertaking the higher duties by the end of December 2013. Ms Jones did accept however, that she was no longer reporting to Ms Cardenia by that time. ¶15 In particular, Ms Jones emphasised that with the organisational restructuring occurring within WAPOL, the entire Finance Directorate will be undergoing a restructure and therefore in her view, she cannot see how her reclassified position cannot be accommodated within any new structure. Furthermore, it was Ms Jones’ evidence that she continued to perform higher level duties in areas such as leadership and management; policy development; taxation reporting; advisory/training; compliance; and representing WAPOL at inter-agency taxation working groups and other forums involving the Australian Taxation Office, the WA Treasury and other government departments. ¶16 As noted earlier in these reasons, WAPOL’s position was that the higher level work, acknowledged to have been undertaken by Ms Jones previously effectively ceased on 3 January 2014 when Ms Cardenia was appointed to the position of Acting Chief Finance Officer. In this respect, Ms Cardenia testified that since being appointed to her position on 3 January 2014, she has been responsible for the overall management of the Level 7 Executive Manager who in turn oversees Ms Jones’ position. Ms Cardenia said that during the course of the review undertaken by Ms Soares, she met with both her and Mr Holt to discuss Ms Jones’ claims outlined in the Shelby Consulting Report. Ms Cardenia confirmed that in discussions with those conducting the review it was acknowledged that under the previous reporting arrangement, when Ms Jones reported directly to Mr de Mamiel, that she was indeed undertaking the higher level work as was claimed. However, Ms Cardenia was emphatic that that work ultimately ceased. ¶17 In relation to the internal restructuring at WAPOL, Ms Cardenia testified that it is possible that the present Level 7 Executive Manager position may be abolished. However irrespective of this, Ms Jones’ position would more appropriately fall within other control and compliance areas of the Finance Directorate with the intention that the position still report to a Level 7 Executive Manager position. ¶18 Specifically in relation to Ms Jones’ contentions about the current work undertaken, Ms Cardenia did not agree that Ms Jones continues to perform the higher level work described by Ms Soares during the claimed period. According to Ms Cardenia, she considers that Ms Jones is undertaking her work in accordance with her existing Level 6 Position Description. Furthermore, Ms Jones’ contention that the Level 7 Executive Manager position was abolished in December 2013 is not correct and she referred to her evidence immediately above. ¶19 In terms of flow on effects, it was Ms Cardenia’s view that given the current structure and the present intention that Ms Jones’ position report to a Level 7 Executive Manager position, it would be untenable for such reclassified position to report to another Level 7 position. According to Ms Cardenia, since her appointment to her current position, the original approved reporting structure has been operating with Mr Holt having overall responsibility for both the Taxation Compliance Unit and the Accounting Services Unit. ¶20 Ms Cardenia further generally endorsed the existing PD for Ms Jones’ position and also confirmed that the Executive Manager Level 7 position has the duties and accountabilities as set out in the registered PD, regarding the managerial oversight of the taxation area. ¶21 In terms of the specific contentions advanced by Ms Jones as to higher level work she maintains is still being performed, Ms Cardenia took issue with some of these contentions. In terms of Ms Jones undertaking final quality assurance of tax returns to be submitted to the Australian Taxation Office, Ms Cardenia said that this is completed by the Executive Manager prior to presentation to her for sign off. Furthermore, Ms Jones does not independently produce and submit reports on behalf of the Chief Finance Officer. ¶22 In terms of undertaking specialised projects, Ms Cardenia said that any work issued from her office, is delegated through the Executive Manager’s position, and no projects have originated from her office since she has been in the position. Nor, according to Ms Cardenia, has Ms Jones independently represented the Taxation Compliance Unit or WAPOL at various forums, committees or working parties regarding taxation while she has been in her present position. ¶23 Whilst Ms Cardenia seemingly accepted that not all work undertaken by Ms Jones is progressed through the Executive Manager’s position, “end of line” responsibility and accountability for taxation matters ultimately rests with her as the Acting Chief Finance Officer. Ms Cardenia, also had ongoing contact with Ms Soares, during the review. The review undertaken by WAPOL considered the Shelby Consulting Report and involved detailed consultation with not only Ms Jones but also with Ms Cardenia, Mr Holt and others. A fulsome consideration was given to the responsibilities and duties of Ms Jones’ position, both prior to and after Ms Cardenia’s appointment. ¶24 Ms Soares has some seven years’ experience in classification review work for WAPOL. Ms Soares outlined the process she engaged in in undertaking the review of Ms Jones’ position, including the conclusions reached by Shelby Consulting. Ms Soares referred to the conclusions of the Classification Report, and the two principal reasons why Ms Jones’ reclassification request was denied. They firstly involved structural unsoundness in one Level 7 position reporting to another, as would be the ultimate effect if Ms Jones’ reclassification claim was to succeed. Secondly, the conclusion was reached in the Classification Review that the higher level work undertaken by Ms Jones, previously acknowledged, did not continue past about December 2013. ¶25 In terms of reporting structure, Ms Soares also confirmed her assessment after discussions with Ms Cardenia and Mr Holt, that the reporting relationships originally intended from the 2007 restructuring of the finance area, and as set out in Ms Jones’ registered PD, have in fact been in effect since Ms Cardenia took over her present position. ¶26 The overall response of WAPOL was also confirmed in the evidence of Ms Hopkinson, presently the Acting Executive Manager Workforce Design and Consultancy, Human Resources. Ms Hopkinson referred to the Classification Report prepared by Ms Soares and confirmed its content. Ms Hopkinson concluded that the report did not substantiate a significant ongoing increase in work value to justify a reclassification. However, in recognition of the performance of higher duties during the claimed period from 1 July 2013 to 31 December 2013, a temporary special allowance was recommended to be paid to Ms Jones, as compensation for the higher level work performed. [Consideration] ¶27 The principles to apply in matters such as these are well settled. In United Voice WA v The Minister for Health (2014) 95 WAIG 178 at pars 11-12 I said as follows: Tests for work value review 11 The Commission has, in many cases, set out the relevant principles to apply in applications to reclassify positions, based on work value. Recently, in Francis v WA Police (2013) 93 WAIG 437 I said at par 38: 38 It is well settled in this jurisdiction, that in order to obtain a reclassification of a position, an appellant needs to demonstrate a significant net addition to the value of the work attached to a position, such as to warrant the creation of a new classification. Work value in this respect, embraces changes in the nature of the work, the skills and responsibility required or the conditions under which the work is performed. This fundamental principle is set out in the Commission’s Wage Fixing Principles 2012 at Principle 7.2. A reclassification appeal, involves an assessment by the Commission of the work value of a position, at the time the appeal is lodged: Health Services Union of Western Australia (Union of Workers) v Director General of Health in Right of the Minister for Health as the Metropolitan Health Service at PathWest Laboratory Medicine WA (2008) 88 WAIG 475; Wall v Department of Fisheries (2004) 84 WAIG 3895. 12 The approach of the Commission has been to apply the test strictly. This means a substantial burden falls on an applicant in such matters. In relation to the requirement of “‘significant’ change, ‘significant’ does not necessarily mean ‘major’, but ‘to a meaningful degree, not insignificant, not immaterial, not trivial’. To be significant a factor does not have to be dramatic, sudden or eye-catching. A change, as in this case, may occur subtly, gradually, even covertly but on examination prove to be significant”: In re Mineral Sands (State) Award [1980] AR (NSW) 107. Significant change may be either evolutionary or revolutionary. Evolutionary change can be just as substantial and significant as revolutionary change: Hospital Salaried Officers Association of Western Australia (Union of Workers) v Royal Perth Hospital and Others (1987) 67 WAIG 554 at 557. Further, “Incremental or cumulative change, when taken as a whole, may constitute such a level of change that developments have exceeded those which would reasonably be expected”: Hospital Salaried Officers Association of Western Australia (Union of Workers) v Royal Perth Hospital (2002) 83 WAIG 23. ¶28 I adopt and apply this approach to the determination of the present matter. The onus is, of course, on Ms Jones to establish her claim. ¶29 There is considerable common ground in this matter. It is not in dispute that Ms Jones did perform higher level duties and responsibilities for a considerable period, up until 31 December 2013. What occurred from then on is in dispute. However, in recognition of this, Ms Jones was paid an allowance from 1 July 2013 to 31 December 2013, representing the period from the date the Shelby Consulting Report and application was received by the Workplace Relations Branch to the time at which WAPOL contends that the additional higher level work ceased to be undertaken by Ms Jones. ¶30 There were two principal reasons why WAPOL was not prepared to support Ms Jones’ reclassification. Firstly, is the flow on implications of the reclassification to a Level 7 classification, given the existence of the current Executive Manager Level 7 or alternatively, a revised structure which will involve another Level 7 position, to which Ms Jones’ position will report. Secondly, the work for which the allowance was paid by WAPOL to Ms Jones was concluded not to be ongoing and that the reporting structure, at least from early 2014, reverted to that set out in Ms Jones’ current registered PD, with her reporting to the Executive Manager Level 7 role, who in turn is responsible to Ms Cardenia. ¶31 It is the case that Ms Jones no longer reports to the Acting Chief Finance Officer, as the Accounting Services Branch of WAPOL falls within the Executive Manager’s responsibility. I also accept, consistent with the evidence of Ms Cardenia, that not all work of Ms Jones is progressed through the Executive Manager’s position. Ms Jones’ does have autonomy as a Level 6 officer, which is a senior role. One would expect that such a position would be able to initiate projects and to manage them. That simply is a part of the responsibilities of such a role. I also accept on all of the evidence that the end of line responsibility for all tax and accounting matters within WAPOL rests with the Chief Finance Officer. ¶32 Whilst at par 39 of Ms Jones’ witness statement, reference is made to a number of responsibilities and duties which she maintained are still “higher-level”, from a detailed analysis of her present PD, I am not persuaded to this view. I consider that for the following reasons, the work presently performed by Ms Jones in this respect, as referred to by her, is largely accommodated within the existing PD dated August 2007. ¶33 Ms Jones firstly referred to “Leadership and Management”. She referred to undertaking leadership accountabilities for the Level 3 and Level 5 positions reporting to her. She referred to performance management, training, management of leave approvals etc, supervising team activities and reviewing and amending daily work undertaken. This, in my opinion, is encompassed within the existing PD, given that the overall role of the position is to manage and coordinate the Taxation Compliance Unit. This specifically involves accountabilities including managing staff, ensuring effective training and individual performance management. It also involves the review of work practices and implementing change programs. In my view these are existing duties as a part of a senior manager’s responsibility. ¶34 Next, reference is made to “Policy Development”. Again in my opinion, from a review of the existing PD, policy development is a key responsibility and accountability of the position, including the management of WAPOL’s taxation policies and procedures. In terms of “Taxation Reporting”, the duties referred to by Ms Jones include managing the accurate completion of the various tax returns required. This is a key responsibility of Ms Jones’ position set out in the current PD. I am not persuaded that the final end of line management accountability rests with Ms Jones in this respect. ¶35 In terms of “Advisory/Training”, Ms Jones referred to the provision of “consultancy” to internal and external stakeholders on tax matters, and the provision of accurate taxation information for presentation at training events. In my view, these matters are specifically referred to in the current PD and there is nothing referred to in the evidence of Ms Jones which in my opinion is significantly different to the existing responsibilities of the position. Further, on the subject of “Compliance” Ms Jones refers to undertaking and managing reviews of developments in tax legislation and continuous improvement initiatives. Again I am not persuaded this is outside of that responsibility contemplated by Ms Jones’ existing PD. ¶36 Finally, in terms of representation of WAPOL, external contacts are specified for Ms Jones’ position including the ATO, Treasury and other government departments and agencies. This is not inconsistent with Ms Jones’ assertions in relation to representation of the Taxation Unit in dealing with external parties. ¶37 Accordingly, from all of the evidence, and having regard to all of the materials before me, I am not persuaded to the view that Ms Jones has established on balance, such a significant net increase in work value, to warrant a reclassification. Furthermore, whilst it is not determinative in my mind, there may be some substance to the contentions advanced by WAPOL in relation to flow-on, given the structural arrangements in place, and proposed, in the relevant areas. ¶38 However, I would add the following: In my view, on the evidence, it is clear that Ms Jones did perform higher level duties for a considerable period of time well prior to July 2013, when the Shelby Consulting Report was produced. Indeed as far back as 2010, on Ms Jones’ evidence, which evidence was not contradicted, she raised the issue of the reporting structure and her duties with the then Director of Finance. It was only because of a number of significant delays, none of which were the responsibility of Ms Jones, that the process was not then progressed. Having regard to these matters, and the acknowledgment of the higher level work by WAPOL, the period of the special allowance paid to Ms Jones from 1 July 2013 to 31 December 2013, in my opinion, does not adequately compensate Ms Jones for the clear value to WAPOL that she provided over these years. ¶39 The present claim before me is one brought to the Arbitrator under s 80E(2) of the Act. Sections 80E(1) and (2) of the Act provide as follows: [80E. Jurisdiction of Arbitrator] (1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer, a group of government officers or government officers generally. (2) Without limiting the generality of subsection (1) the jurisdiction conferred by that subsection includes jurisdiction to deal with — (a) a claim in respect of the salary, range of salary or title allocated to the office occupied by a government officer and, where a range of salary was allocated to the office occupied by him, in respect of the particular salary within that range of salary allocated to him; and (b) a claim in respect of a decision of an employer to downgrade any office that is vacant. ¶40 It is trite to observe that in proceedings before both the Commission and the Arbitrator, the Commission and Arbitrator are not restricted to the specific claim made or to the subject matter of the claim (see s 26(2) of the Act and Minister Controlling Harbour and Light Department v Maritime Workers Union of WA (1982) 62 WAIG 820). Furthermore, the Arbitrator’s jurisdiction is to be exercised consistent with equity, good conscience and the substantial merits of the case: s 26(1)(a) Act. ¶41 These observations prompted me to direct my Associate to write to the parties to raise the issue as to whether, s 26(2) read with s 26(1)(c) of the Act, could provide a basis for the Arbitrator to award a sum as compensation for higher duties performed by the appellant prior to 1 July 2013. This is regardless as to whether or not a reclassification was found by the Arbitrator to be warranted. In connection with this, both parties expressed their initial views in writing, from the Union by letter of 17 September 2015 and by WAPOL by letter of 18 September 2015. The matter was relisted for further hearing on 23 October 2015 and in that connection, both parties filed written outlines of submissions in connection with the points raised in my Associate’s letter. ¶42 For the appellant, the Union submitted that on the basis of the evidence led in these proceedings it was open for the Arbitrator to make an order for the payment of a sum of compensation for higher duties performed by the appellant prior to 1 July 2013. The submission was made, referring to s 26(2) when read with s 26(1)(a), that the equity and good conscience of the case would warrant the making of such an order. ¶43 In particular, the appellant submitted that the jurisdiction of the Arbitrator is to be construed very widely, and referred in particular to Health Services Union of Western Australia (Union of Workers) v Director General of Health (2008) WAIRC 00215 at par 58 and also Director-General Department of Justice v Civil Service Association of Western Australia Inc [2005] WASCA 244 at par 29 per Wheeler and Le Miere JJ. The contention was put that given the breadth of the definition of industrial matter, s 80E(2)(a), under which the present claim was brought, does not limit the jurisdiction of the Arbitrator under s 80E. ¶44 Overall Ms Jones contended that equity and good conscience warranted the making of an order in this case. She had been performing higher duties for a considerable period of time and such an order would also be consistent with the objects of the Act in s 6. ¶45 In submitting that the Arbitrator has no jurisdiction to make an order for Ms Jones to be paid an additional sum as compensation, WAPOL put two principal submissions. The first was that any such order would in effect, be in the nature of a Temporary Special Allowance under the terms of the Public Service Award 1992. It would therefore be tantamount to enforcing a provision of the Award, which is in the exclusive jurisdiction of the Industrial Magistrate’s Court under s 83(3) of the Act. ¶46 The second jurisdictional objection advanced was that the present application brought by Ms Jones, as an individual officer under s 80F(2) seeking a remedy under s 80E(2)(a), is limited to matters concerning the salary ascribed to her “office”. Accordingly, construed in this way, any order for payment of compensation to Ms Jones, would be payment to her personally, as the holder of an office, and not a payment in respect of the office itself. In this respect WAPOL referred to the decision of Fielding SC in Megan Maree In De Braekt v Chief Executive Officer of the Department of Productivity and Labour Relations (2000) 80 WAIG 3040. ¶47 The final submission made by WAPOL was that even if the Arbitrator was of the mind to make an order of compensation in favour of Ms Jones, any such order would, necessarily, be retrospective in effect and be ultra vires. In this respect, reference was made to BHP Billiton Iron Ore Pty Ltd v CFMEU [2006] WASCA 49 at par 83. It was contended that any reclassification order may also only operate prospectively. If an order in the nature of compensation was made in this matter, the submission was that it would necessarily in effect, backdate a reclassification for Ms Jones from Level 6 to Level 7 for the period of the order. ¶48 Reference was also made by WAPOL to a decision of Scott A/SC in Flashman and Ors v Attorney General (2012) WAIRC 00294. In this case the Arbitrator, in an application under ss 80E(2)(a) and 80F(2), ordered the payment of a Temporary Special Allowance to the applicants from the date on which the applications were filed in the Commission. It was contended that in that matter, the Arbitrator, in referring to s 39 of the Act, acknowledged that the allowance could not operate retrospectively and made a recommendation in that regard. The further submission made was that consistent with the contentions put by WAPOL in these proceedings, the order made by the Arbitrator in Flashman for the payment of an allowance, was not open to be made and was a matter for the exclusive jurisdiction of the Industrial Magistrate’s Court. ¶49 I have carefully considered the submissions made by the parties in respect of the issue raised. ¶50 Insofar as the objection to jurisdiction contending enforcement of the Award is concerned, I am not persuaded by those submissions. Firstly, cl 11(5) of the Award, dealing with Special Allowances, does not, in my view, confer any entitlement on an employee or impose any obligation on an employer covered by the Award. What this provision does is permit an employer to make a special allowance payment in appropriate circumstances, at its discretion. The terms of cl 11(5) simply specify that “the employer shall not be prohibited from granting special allowances…”. In my opinion, such a clause would not prohibit, the Arbitrator, in an appropriate case, from making an order that a temporary allowance, or however it may be described, apply. Such an order would not have the effect of enforcing a right or obligation created by the Award. Section 83 of the Act concerns itself with “contraventions or a failure to comply with” a relevant industrial instrument. Necessarily in my view, any such contravention or failure to comply must be in connection with a right, entitlement or obligation imposed by the industrial instrument, to fall within the scope of the enforcement machinery of the Act. ¶51 The second basis of alleged enforcement, set out in the letter from WAPOL related to cl 19(1), dealing with a higher duties allowance. However in my view, from the terms of cl 19(1), that clause can only operate where “an officer who is directed by the employer to act in an office which is classified higher than the officer’s own substantive office …” The necessary factual circumstance for cl 19(1) to operate involves a direction by an employer in the occupation by the employee, of a higher office, for a prescribed period, in return for which an allowance is payable. That is not the circumstance on the facts in this case. Any order made by way of compensation, could not in my view, be tantamount to enforcement of that provision of the Award. ¶52 As to the submission raised concerning s 80F(2) when read with s 80E(2)(a) of the Act, in my opinion, there is greater force to the WAPOL submissions in this regard. I respectfully agree with the observations of Fielding SC in In de Braekt, where at 3041, he refers to the limitations to matters that may be referred to the Arbitrator by individual officers, under s 80F(2) of the Act. In the matter then before him, Fielding SC concluded that a claim for a payment to be payable to the holder of an office, rather than a loading or payment attaching to the office itself, is not a matter authorised by s 80E(2). Fielding SC was however, at pains to emphasise, that in his opinion, that limitation only extended to applications by an individual officer under s 80F(2). The question of the application of s 26(2) of the Act did not arise in that case for consideration. ¶53 However, in The Civil Service Association of Western Australia Incorporated v Commissioner, Public Service Commission (1992) 72 WAIG 2595, the scope and application of s 26(2) of the Act was considered by the Arbitrator, on an application under s 80E by the Association. The claim made in those proceedings by the Association, was for an order that the respondent reinstate an undercover car park for the duration of an employee’s employment and to compensate him for out of pocket expenses. Alternatively, an order of compensation in the total sum of $61,321 was sought. An issue arose in that case as to the application of s 26(2) to the claim made, which was expressed as a “contractual entitlement” and purportedly brought under s 29(b)(ii) of the Act. Despite this, Fielding C was prepared to characterise the essence of the applicant's claim as one bought by the Association under s 80E of the Act, as being an industrial matter and referred by it under s 80F(1) of the Act. The Commission, having regard to the fact that it should deal with the matter without regard to technicalities or legal forms, was prepared to so characterise the claim. ¶54 As to s 26(2) of the Act, and its application to the matter before him, Fielding C said at 2598: Though the claim is expressed to rest on a contractual entitlement, the Commission, by virtue of s.26(2) of the Act, is not restricted to that claim. Section 26(2) is, by force of s.80G(1) of the Act, part of the armoury of the Public Service Arbitrator. Clearly, the authority given to the Commission by that provision cannot be utilised to enable the Commission to vary or add to a contract of employment so as to establish a benefit thereunder which does not otherwise exist (see Bartlett v. Indian Pacific Limited (supra) and Perth Finishing College Ply Ltd v. Watts (supra)). The provisions of section 26(2) can, however, be utilised to enable the Commission, on an application instituted by the Association, to confer a benefit or privilege which fits the description of an industrial matter on a government officer independently of the contract of employment, if the Commission considers it just and equitable to do so. Of course any such benefit or privilege awarded by the Commission in this way must be consistent with the provisions of the Public Service Act 1978 (see: section 80C(2) of the Act). The position is different in the case of an application brought by an individual under sections 29(b) or section 80F(2) of the Act because the Commission has authority to enquire into and deal with only the industrial matters specified in those sections of the Act. Section 26(2) of the Act could not sensibly be read as empowering the Commission, however constituted, to consider an industrial matter other than of the kind specified in sections 29(b) and 80F(2) of the Act. In the case of proceedings instituted by an organisation or by an employer, as is the case with these proceedings the range of industrial matters which may be brought before the Commission is not limited as it is for applications by individual persons. Thus, it seems to me the Commission is entitled on this occasion to consider whether, having regard to the "equity, good conscience and the substantial merits of the matter" the parking privileges previously enjoyed by Mr Bluhe should be reinstated notwithstanding there was no contractual right to those privileges. ¶55 Having considered the matter, I agree with the views expressed by Fielding C set out above. That is, given that the specific nature of the matters which an individual officer under s 80F(2) of the Act may refer to the Arbitrator, are limited in the manner expressed, then s 26(2) cannot be availed of. A payment of an allowance for example, would not be a matter specifically within the scope of ss 80F(2) and 80E(2)(a), and s 26(2) could not be the basis for such an order to be made. The position however, is different in relation to claims brought by the Association, for the reasons identified, given the breadth of ss 80E(1) and 80F(1) of the Act. ¶56 My agreement with Fielding C’s conclusions above necessarily entails my disagreement with the approach taken by Scott A/SC in Flashman, not because of any issue of purported enforcement, but rather because the limited scope of the Commission’s jurisdiction in matters under ss 80E(2)(a) and 80F(2) of the Act. ¶57 As to the final submission by WAPOL that any such order of compensation would have retrospective effect, whilst it is not necessary for me to finally deal with the issue, in view of the conclusion that I have just reached, I am not persuaded to the view expressed in that submission. Simply because an order in the nature of compensation may relate to performance of work prior to the operative date of the order, does not, by that reason alone, mean that the order is retrospective. There are many occasions on which the Commission may make an order for payment of a sum of money in respect of circumstances in existence prior to the date the order was made. However, as was conceded by WAPOL in the course of the hearing, the reliance by Scott ASC in Flashman on s 39 of the Act in relation to the issue of retrospectivity was, with respect, erroneous, as neither those nor these proceedings involve a decision in the form of an award, as defined in s 3 of the Act. ¶58 Therefore despite what I regard as a clear inequity arising in this matter, I am not persuaded that the Arbitrator has jurisdiction and power to make an order for compensation in respect of a sum of money to be paid to Ms Jones prior to 1 July 2013. However, as a matter of equity and good conscience, I strongly recommend that WAPOL consider making a further payment to Ms Jones in recognition of the higher level work she performed for some years. It is plainly the case that the employer had the benefit of her skills and experience over an extended period of time. This work has only been recognised in the period from 1 July 2013 to 31 December 2013, a period of six months or so. On the evidence, it would appear well open to conclude that Ms Jones, certainly by about August 2010, formally instigated the process for a review of her classification. It seems to me, that all other things being equal, that could be a date from which some further recognition of Ms Jones’ contribution could be made. [Conclusion] ¶59 Accordingly, whilst I will make an order that the substantive appeal be dismissed, I will also recommend that WAPOL make a further payment to Ms Jones in the circumstances as outlined above.