FEDERAL COURT OF AUSTRALIA

O’Halloran v Wood [2004] FCA 544

PRACTICE AND PROCEDURE – Respective functions of Application and Statement of Claim - Determination of Preliminary Questions of law - Whether appropriate in the circumstances - Public Service - Judicial Review - Determination that an employee is excess to requirements - Jurisdictional fact - Industrial - Certified Agreement - Relationship between Certified Agreement and Public Service Act

Public Service Act 1999 (Cth)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Judiciary Act 1903 (Cth)

Workplace Relations Act 1996 (Cth)

Federal Court Rules

O’Halloran v Wood (2003) 75 ALD 446

Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135

Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55

Deputy Commissioner of Taxation v Woodhams (2000) 169 ALR 503

Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456

Craig v South Australia (1995) 184 CLR 163

Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297

Kuar v Minister for Immigration Local Government and Ethnic Affairs (1993) 44 FCR 380

Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

City of Port Adelaide Enfield v Minister for Transport & Urban Planning (1999) 73 SASR 22

Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169

Lee v Jacka (1994) 125 ALR 459

R v Teachers Appeal Board Ex parte Bilney (1984) 35 SASR 492

Preston v Carmody (1993) 44 FCR 1

Barratt v Howard (2000) 170 ALR 529

Public Service Act, 1922 (Cth)

O’Halloran v Wood (2003) 71 ALD 446

JUSTIN JAMES O’HALLORAN v PETER WOOD AND AUSTRALIAN SECURITIES & INVESTMENT COMMISSION

S 481 of 2003

SELWAY J

5 MAY 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application by the respondent to have the question:

                  ‘Is the question whether an employee is excess to the requirements of the Agency for the purpose of section 29(3)(a) of the Public Service Act 1999 a matter for the determination, according to law, of the Agency Head on the material before that person or is that question a jurisdictional fact and one to be determined by the court on the evidence before it?’

determined as a preliminary question in accordance with Order 29 Rule 2 of the Federal Court rules be dismissed.

2.         The application by the respondent to have the question:

‘Is the question whether a staff member is excess for the purpose of clause 46.2 of the Certified Agreement 2001-2003 a matter for the determination, according to law, of the Chairman on the material before him or is that question a jurisdictional fact and one to be determined by the court on the evidence before it?’

             determined as a preliminary question in accordance with Order 29 Rule 2 of the Federal Court rules be dismissed.

3.         The Amended Application filed herein on 1 December, 2003 be struck out.

4.         The applicant be given leave to join the Chairman of the Australian Securities and Investments Commission as a party to the proceedings.

5.         The applicant have leave to file and serve on or before 1 June, 2004 a further Amended Application complying with Order 4 of the Federal Court Rules.

6.         The applicant have leave to file and serve on or before 1 June, 2004 an Amended Statement of Claim complying with Order 4 Rule 6 and Order 11 of the Federal Court Rules.

8.         The respondent have leave to file and serve on or before 1 July, 2004 an Amended Defence.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By Notice of Motion the respondent seeks to have two preliminary questions of law determined and seeks to have various paragraphs of the Amended Application filed by the respondent struck out.  For the reasons given below I am of the view that it is not appropriate to determine the two questions of law as preliminary questions.  I have also struck out the whole of the Amended Application and made consequential orders.

2                     On 4 April 2003 the applicant was retrenched from his employment with the second respondent Australian Securities and Investment Commission (‘ASIC’).  The decision to retrench him was made by the first respondent pursuant to a delegation from the Chairman of ASIC.  The decision was made pursuant to the Public Service Act 1999 (Cth) (‘the PSA’) and/or pursuant to the Australian Securities & Investments Commission Certified Agreement, 2001-2003 (‘the Certified Agreement’).  That decision followed an earlier decision by the first respondent made on 4 October 2002 that the applicant be declared ‘excess’.  That decision was made pursuant to the Certified Agreement. 

3                     The applicant says that the decision to declare him excess was invalid.  He also says that the retrenchment was invalid.  It is unnecessary to consider the detail of the many and various allegations made by the applicant.  In general terms the applicant says that the decisions were invalid because he was not ‘excess’ and because those that made the relevant decision(s) acted for improper purposes.

4                     The applicant lodged in this Court an application supported by a Statement of Claim.  The application was made pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’).  The grounds stated in the application were extensive and discursive, comprising some 18 pages.  The Statement of Claim, on the other hand, was short and to the point. 

5                     The respondents appeared to the application and issued a Notice of Objection to Competency.  That Notice raised the issue whether this Court had jurisdiction under the ADJR Act to hear and determine the claim in so far as it involved the Certified Agreement.  On 15 August, 2003 I decided that this Court did not have such jurisdiction: O’Halloran v Wood (2003) 75 ALD 446; [2003] FCA 854.  In 11 November 2003 I made orders that the applicant file and serve an amended statement of claim.  The applicant did not do so.  Instead the applicant filed and served an Amended Application.  That Amended Application purported to join a third respondent, Mr Knott who was at some relevant times (but is not now) the Chairman of ASIC.  The grounds of application now comprise some 40 pages.  The application is now brought not only under the ADJR Act, but also under s 39B of the Judiciary Act 1903 (Cth), presumably to avoid the problems referred to in the previous decision.  Reference is also made in the amended application to a variety of other provisions, such as the Workplace Relations Act 1996 (Cth) (‘the WRA’).  The significance of these other provisions has not been explained to me.  Plainly enough, the effect of my ruling in August 2003 has not been to limit the issues in dispute.  Rather it has resulted in increased efforts by or on behalf of the applicant to identify new claims that might be made.

6                     In response to this amended application the respondents have filed a defence, not to the Statement of Claim (which has not been altered), but to the amended application.  The Respondents have also issued a Notice of Motion seeking to have the following preliminary questions determined:

‘(i)       Is the question whether an employee is excess to the requirements of the Agency for the purpose of section 29(3)(a) of the Public Service Act 1999 a matter for the determination, according to law, of the Agency Head on the material before that person or is that question a jurisdictional fact and one to be determined by the court on the evidence before it?

(ii)       Is the question whether a staff member is excess for the purpose of clause 46.2 of the Certified Agreement 2001-2003 a matter for the determination, according to law, of the Chairman on the material before him or is that question a jurisdictional fact and one to be determined by the court on the evidence before it?’

7                     In addition the Notice of Motion seeks to have various paragraphs of the Amended Application struck out for various reasons.  The Notice of Motion does not directly attack the Amended Application itself.  However, in my view the Amended Application is not in proper form.  It is clear from Order 4 of the Federal Court Rules that the application should be in the form prescribed.  The prescribed form makes provision for a brief statement of the nature of the subject of the application and the legislative basis of the Court’s jurisdiction.  That statement ‘is not taken to be part of the pleading.’  The Rules confirm what is apparent from the prescribed form.  The application must specify the relief being claimed, but the nature of the applicant’s claim and the material facts on which it is based, must be contained in a Statement of Claim or an affidavit that is to accompany the application: see O 4 r 6.

8                     In this case the Application purports to contain the pleadings.  The pleadings should be contained in the Statement of Claim.  This is not a matter of mere form.  For example the Statement of Claim should be accompanied by a certificate of the applicant’s legal representative stating that there is a proper basis for the allegations in the pleading.  No such statement has been made in relation to the Amended Application, although that document is clearly intended by the applicant to form part of his pleadings and was treated by the respondents in their defence as doing so.  It also contains serious allegations of fraud.  The legal practitioners have not given a certificate in relation to those serious allegations.

9                     The Court did not give the applicant leave to amend the Application.  Nor did the Court give the applicant leave to add a new Respondent.  Leave was required under O 13 r 2 of the Federal Court Rules to take either action.  The Court did give the applicant leave to amend its Statement of Claim (although such leave may not have been necessary: see O 13 r 3), but no such amendments have been made.

10                  The result is that the Amended Application is entirely inappropriate and should be struck out.  This does not mean that the action should be dismissed.  The original Application is still on file.  Given that the parties have proceeded on the basis that the Amended Application was effective, the proper course is to give leave to file an amended application which complies with the Rules (in particular by specifying the basis of this Court’s jurisdiction and the remedies being sought) and to renew the leave previously granted to the applicant to amend his Statement of Claim.  The respondent should also be given leave to file a fresh defence after the applicant files his amended statement of claim. 

11                  The parties were in agreement that the Chairman of ASIC should be joined as a party.  They also agreed that it was appropriate to describe the Chairman in the name of his office: see Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 at 191.  Leave should also be given to enable that to be done.

12                  As already mentioned, in its Notice of Motion ASIC has made detailed objections to a number of specific paragraphs of the Amended Application and has sought orders that these be struck out.  Those objections were discussed in the course of the hearing of the Notice of Motion.  It suffices to say that many if not all of the paragraphs to which ASIC has objected are deficient in various ways.  However, as I have already determined that the whole of the Amended Application should be struck out, there is little purpose in going through each paragraph separately.  Nevertheless, the applicant is on notice that his pleadings are not in proper order, notwithstanding that he has already made two attempts to do so. On the other hand, the material facts of the case which the applicant wishes to put are not difficult to understand.  That case can be simply pleaded as the first Statement of Claim has shown. 

13                  The Notice of Motion filed by the Respondent also seeks to have the two questions of law referred to above determined as preliminary questions.  Those questions arise in the context of the case as set out in the Amended Application which I have determined should be struck out.  Strictly those questions do not arise unless and until the applicant properly pleads the same issues.  However, the issues have been fully argued before me.  It is also clear that the applicant intends to plead the same case, although hopefully the pleading will be more focussed on the next occasion.  It is also clear that the respondent will seek to raise the same legal issues.  In these circumstances the issues are not hypothetical.

14                  On the other hand, I remind myself that it is inappropriate to determine preliminary questions where the effect of doing so is to give an advisory opinion.  It is also inappropriate to do so unless there is some clear and perceptible benefit from such a course.  Such a benefit needs to be weighed against the potential disadvantages to the parties in having issues in dispute resolved issue by issue, rather than at once and all together.  It also needs to be weighed against the potential difficulty to the Court in determining only part of the case.  In relation to the preliminary determination of legal issues that difficulty is reflected in O 20 r 3 of the Federal Court Rules which provides that a party cannot proceed by way of demurrer in this Court.

15                  In this case the advantages in answering the questions asked include the advantage to the parties in clarifying the issues to be pleaded.  The respondent has also filed an affidavit from a solicitor in the Australian Government Solicitor’s office deposing that if the two questions asked by the respondent are answered in the way that the respondent says they should be then there are potentially nine witnesses (one of whom is overseas) who would not need to give evidence at all, or if they did their evidence would be significantly truncated.  Notwithstanding those potential advantages I would not be disposed to answer the relevant questions unless the legal answer was so clear that it would be appropriate to strike out any pleadings that were contrary to it.  For this purpose the legal answer would need to be so clear that any contrary legal proposition would be untenable or unarguable.  If alternate legal propositions are fairly arguable then it would seem to me to be inappropriate to determine the legal issue as a preliminary question.

Section 29(3)(a) Public Service Act

16                  It is accepted by both parties that the applicant was employed in the public service and that the Chairman of ASIC was the ‘Agency Head’ for the purpose of the PSA. 

17                  One possible power of ASIC to terminate the employment of the applicant was that contained in the PSA s 29(3)(a).  Section 29 provides, so far as is relevant:

‘(1)      An Agency Head may at any time, by notice in writing, terminate the employment of an APS employee in the Agency.

Note: The Workplace Relations Act 1996 has rules and entitlements that apply to termination of employment.

(2)       For an ongoing APS employee, the notice must specify the ground or grounds that are relied on for the termination.

(3)       For an ongoing APS employee, the following are the only grounds for termination:

            (a)     the employee is excess to the requirements of the Agency;

            (b)     the employee lacks, or has lost, an essential qualification for performing his or her duties;

            (c)     non-performance, or unsatisfactory performance, of duties;

            (d)     inability to perform duties because of physical or mental incapacity;

            (e)     failure to satisfactorily complete an entry-level training course;

            (f)      failure to meet a condition imposed under subsection 22(6);

            (g)     breach of the Code of Conduct;

            (h)     any other ground prescribed by the regulations.’

18                  As discussed below, there is a question whether the power of termination was contained in the PSA or in the Certified Agreement, or both.  However, assuming that it was contained in the PSA s 29(3)(a) the applicant says that the power of dismissal was used unlawfully in this case.  He says that the decision was not authorised by the PSA: see ADJR Act s 5(1)(d).  He says that he was not ‘excess to the requirements of the agency’. 

19                  It is clear from the Amended Application that the applicant will seek to establish at trial that he was not excess in fact.  ASIC says that this is not a fact to be proved in these proceedings.  It says that the question of whether the applicant was excess is a matter for determination by the Agency Head and is not a matter of objective fact to be determined by the Court.  To paraphrase a comment I made in South Australia v Slipper (2003) 203 ALR 473, 485 [30] ASIC argues ‘in the public law jargon, [that] the relevant jurisdictional fact is whether or not the [Agency Head] is satisfied, not whether or not his satisfaction is correct’.

20                  The applicant argues that PSA s 29(3)(a) should be read as meaning that the power of termination can only be exercised by the Agency Head if, as an objective fact, the relevant person is excess to the requirements of the agency.  The legal difference and consequence between these two alternative meanings of the respondent and the applicant can be observed in the discussion by the High Court in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 149-150, [33]-[34].

21                  The identification that a particular fact is a ‘jurisdictional fact’ involves a legal conclusion: see Spigelman CJ in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 (‘Timbarra’) at 64.  It is a conclusion reached following an inquiry to identify the statutory pre-conditions to the exercise of the relevant power (or jurisdiction) where failure to comply with those pre-conditions will result in invalidity.  That inquiry involves the interpretation of the relevant statutory provision(s) in light of the statutory purpose so as to identify the relevant Parliamentary intent: see Deputy Commissioner of Taxation v Woodhams (2000) 169 ALR 503 at 512-513.

22                  Obviously enough the determination of the relevant parliamentary intent is often difficult, particularly where the issue is left largely to inference: see Black CJ in Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 465-466.  It would not appear that there is any presumption, one way or the other, that the statutory reference to a fact as a pre-condition to the exercise of statutory powers is jurisdictional even for administrative bodies: see Craig v South Australia (1995) 184 CLR 163 at 179; Timbarra at 67.  However, there are some factors that may give some indication of Parliament’s intent.  The extent to which the relevant factual determination is discretionary or otherwise involves ‘subjective factors’ may suggest that the fact is not jurisdictional: see Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 (Mt Isa Mines) at 301; Kuar v Minister for Immigration Local Government and Ethnic Affairs (1993) 44 FCR 380, 390; Timbarra at 72.  The extent to which the relevant decision is subject to a detailed process of prior consultation (see Mt Isa Mines at 306; Timbarra at 69) or to administrative approval or to subsequent review or appeal (see Timbarra at 68), may also suggest that the relevant fact is not jurisdictional.  The inconvenience of determining that a fact is jurisdictional may also suggest that it is not: Mt Isa Mines at 306; Pharmacy Guild of Australia v Australian Community Pharmacy Authority (1996) 70 FCR 462, 476; Timbarra at 72.  The extent to which the factual determination is made in the course of decision-making, rather than as a precondition for it, may suggest that the relevant fact is not jurisdictional: see Timbarra at 65.   Plainly enough these are only factors to be taken into account - their significance in any particular case will depend upon the particular statutory regime.

23                  I note also that there is a danger in this area of discourse that the use of the term ‘jurisdictional fact’ can distract from the inquiry to determine the intent of Parliament as expressed in the relevant statute.   In particular, there is a danger that the distinction drawn by the courts between jurisdictional facts and other facts may limit the potential breadth of that  inquiry.  Constitutional limitations aside, the Parliament is not limited in its capacity to identify what factual findings are preconditions to jurisdiction and what are not.  Nor is it limited so that a particular factual finding must always be one or the other.  It may be, for example, that the Parliament intended that substantial compliance with the relevant factual pre-conditions would be sufficient for validity.  Procedural provisions having this effect were once described as ‘directory’.  That description is no longer appropriate: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391.  However, the rejection of that description does not deny the capacity of the Parliament to legislate to the same effect.  In such a case the question of whether the factual pre-conditions have been ‘substantially complied with’ would be a question of fact and degree: see Debelle J in City of Port Adelaide Enfield v Minister for Transport & Urban Planning (1999) 73 SASR 22, 30; Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169 [16] (apparently confirmed on appeal: [2003] FCAFC 229 at [16]).  In such a case the legal question asked of me would not be capable of an either/or answer of the sort assumed in the question.

24                  There is a long history in this country of statutory regulation of the public services.  That history has long involved a contest between two principles: that of security of the tenure of those employed in the public service on the one hand and the principle that Crown employees were liable to dismissal at pleasure on the other: see Finn Law and Government in Colonial Australia (1987) at 65-67.  The relevant statutory schemes invariably limited the power of the relevant government to dismiss its public servants to specified grounds.  However, the statutory schemes also usually provided a relatively detailed regime for determining if those conditions had been met.  This often included a detailed review process, although not always in relation to termination for redundancy: see Butterworths Halsbury’s Laws of Australia Vol 21(2) at 345-495.  Plainly enough the statutory conditions for termination had to be complied with if the statutory powers were to be used: see Lee v Jacka (1994) 125 ALR 459.  However, it would not appear that those statutory conditions were understood as meaning that a correct factual determination was a precondition to the exercise of the powers of termination.  Rather the courts would seem to have treated the determination of relevant facts as being matters for the decision maker, providing that there was a ‘legal foundation’ for the relevant decision: see, for example R v Teachers Appeal Board Ex parte Bilney (1984) 35 SASR 492 at 493; Preston v Carmody (1993) 44 FCR 1 at 11-12.  The relevant decision was subject to judicial review, including under the ADJR Act, but not for making an error as to a jurisdictional fact.  The grounds of review would include an error of law (see ADJR Act s 5(1)(f)), including an error of law as to the decision maker’s jurisdiction.  The grounds of review would also include that there was no evidence or other material to justify the making of the decision (see ADJR Act s 5(1)(h)).  They did not include review under the ADJR Act s 5(1)(d) on the basis of failure to comply with a jurisdictional fact.

25                  A recent example of this approach can be seen in the reasoning of the Full Court in Barratt v Howard (2000) 170 ALR 529.  That case involved the dismissal of a Secretary of a Department (as Agency heads were then called) pursuant to the Public Service Act 1922 (Cth) s 37 (subsequently repealed).  In that case the Full Court held that the relevant power of dismissal could only be exercised for the efficient, equitable and proper conduct of the public service (see at 544 [50]-[51], 548 [73]).  The Full Court nevertheless held that it was a matter for the decision-maker to determine whether the dismissal was for that purpose (see at 550‑551 [82]-[83]) - the Court could interfere if the decision-maker did not do so, but otherwise the question of fact was ultimately a question for the decision maker, not for the Court.

26                  A consideration of the factors referred to above would suggest that this traditional approach to public service legislation may also be applicable to the PSA s 29(1)(a).  In particular, the issue of whether a person is ‘excess to the requirements of the agency’ would seem to involve issues of judgment and degree which are quite suitable for determination by an Agency head, but which are not at all suitable for determination by a Court.

27                  On the other hand, the PSA contains some features which differ from the usual and traditional model of public service employment as understood in Australia.  The Act seems to give greater emphasis to agency control, rather than central control.  There are also less detailed provisions relating to procedure and review.  It also introduces a new form of limited tenure.

28                  It would seem to me that there the statutory scheme under the Public Service Act 1922 (now repealed) was such that it could be said with considerable confidence that it was for the decision maker, and not the Court, to determine whether the factual pre-conditions to termination under that Act had been met.  However, the PSA has some distinguishing features.  I am not prepared to say that it is not fairly arguable that the factual question of whether a person is excess is a jurisdictional fact.  This is not to say that I think such an argument would ultimately succeed.  In my view there are considerable difficulties in its way.  However, I do not think that it is appropriate for that question to be determined as a preliminary question. 

Certified Agreement

29                  The other possible power to terminate the employment of the applicant on the ground that he is excess to the requirements of ASIC is the power contained in the Certified Agreement made pursuant to the WRA.

30                  Relevant provisions of clauses 46 and 48 of the Certified Agreement include:

‘Workforce Adjustment

46.1     The following redeployment, retirement and redundancy provisions will apply to excess staff of ASIC.

ExcessStaff

46.2     A staff member is excess if:

·        he or she is employed substantively at a level where there is a greater number of staff than is necessary for the efficient and economical working of ASIC; or

·        the duties of the staff member are to be performed at a different locality and the staff member is not willing to perform duties at that locality and the Chairman has determined that the excess staff provisions of the Act apply; or

·        the services of the staff member can no longer be effectively used because of technological or other changes in work methods or changes in the nature, extent or organisation of functions of ASIC.

Consultation Arrangements

46.3     On becoming aware that any staff member is likely to become excess to requirements the Chairman will advise the staff member of the situation.

46.4     Discussions with the potentially excess staff member will be held to determine:

·        any redeployment opportunities for the staff member concerned; and

·        whether voluntary retrenchment might be appropriate.

46.5    At the completion of the discussions or the end of one month, whichever is earlier, the Chairman may:

·        invite the potentially excess staff member to elect voluntary retrenchment; or

·        declare the staff member excess.

46.6     The Chairman may, before the conclusion of these discussions, invite other staff who are not potentially excess to express interest in voluntary retirement, where those retirements would permit the redeployment of staff who would otherwise be excess.

…

Redeployment Considerations

46.19      Where a staff member is declared excess and declines, or prior to being declared excess has declined, an invitation to be voluntarily retrenched, ASIC will attempt over a reasonable period to identify options for redeployment within the APS. A reasonable period would not normally be expected to exceed three months from the date on which the staff member is declared excess.

46.20   The excess staff member will also take reasonable steps to find alternative employment and actively participate in trial placements and other arrangements to help obtain a permanent placement.

46.21   The excess staff member may be granted assistance in meeting reasonable travel and incidental expenses incurred seeking alternative employment.

46.22   Where the Chairman believes there is insufficient productive work available for an excess staff member at their actual level, the Chairman may, with the agreement of the staff member:

·        redeploy the excess staff member to a position at a lower level which the staff member is qualified and capable of performing, with salary maintenance for the balance of a support period;

·        retire the excess staff member and pay as a lump sum in lieu of notice the salary which would have been paid for the balance of a support period provided by subclause 47.24.

(A staff member who so retires is not entitled to the severance benefit.)

Involuntary Retirement

46.23   Where, after a reasonable period, the staff member has not been redeployed to another position within ASIC or another APS employer, resigned or retired voluntarily, the Chairman may retire the excess staff member involuntarily, with a payment as prescribed by sub­clause 47.22. A reasonable period would not normally be expected to be greater than three months.

Support Period

46.24   The support period will be:

·        thirteen months where the staff member has 20 or more years of service or is over forty five years of age; or

·        seven months for other staff

from the date when the staff member is declared excess.

Period of notice

46.25   Where an excess staff member is voluntarily or involuntarily retired, the staff member will be given notice of four weeks (or five weeks for staff over 45 years with at least five years of continuous service) except as set out at subclause 47.22. Where a staff member retires or is retired at the beginning of, or within, the notice period, he or she will receive payment in lieu of notice for the unexpired portion of the notice period

Salary

46.26      Salary for the purposes of this clause includes allowances in the nature of salary which are paid on a regular basis and during periods of annual leave, but excludes allowances which are a reimbursement for expenses incurred, or a payment for disabilities associated with the performance of duty.

…

48.   Review of decisions to terminate employment

48.1     The avenue of review for staff against termination of employment for any reason is as provided for in the termination of employment provisions in Division 3 of Part VIA of the Workplace Relations Act 1996

31                  In O’Halloran v Wood (2003) 71 ALD 446; [2003] FCA 854 I held that review under the ADJR Act was not available in relation to alleged breaches of a certified agreement.  Although not altogether clear from the ‘pleadings’ it may be assumed that the applicant now relies upon the Judiciary Act 1903 (Cth) s 39B, or, perhaps, the WRAin so far as he seeks the review by this Court of any decision made under the Certified Agreement.

32                  Two issues arise in this context, neither of which has been argued.  The first is that there is nothing in the current Amended Application which informs the Court or the respondents as to how s 39B is attracted.  It may be that the applicant seeks writs of ‘mandamus, prohibition or an injunction’ against an officer of the Commonwealth within subs (1).  If so, it should be expressly pleaded.  Alternatively the applicant may seek to rely upon this Court’s jurisdiction ‘in any matter arising under any laws made by the Parliament’ within subs (1A).  The only relevant law, apart from the PSA, would seem to be the WRA.  However, the WRA expressly confers jurisdiction in relation to certified agreements.  A certified agreement is not a contract - its force and effect are statutory: see ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325.  This Court has jurisdiction under WRA s 178 to order penalties for breach of a certified agreement; it also has jurisdiction under WRA s 413A to ‘give an interpretation’ of a certified agreement: see, for example National Tertiary Education Industry Union & Ono v University of Wollongong (2001) 183 ALR 592.  If the applicant intends to rely upon this Court’s jurisdiction under the WRA, the pleadings need to clarify that he does so.

33                  The next issue is whether an alleged failure by ASIC to comply with a certified agreement raises issues of public law, in addition to whatever jurisdiction may exist under the WRA. Some doubt has been expressed in England as to whether a breach of industrial agreements by government bodies is a proper subject matter of public law: see S Fredman & G Morris, ‘Public or Private? State Employees and Judicial Review’ (1991) LQR 298.  In Australia it would seem that breach of such agreements in the context of a statutory regime for government employment is a proper matter for public law: see Re Railway Appeal Board Ex parte Western Australian Government Railways Commission (1999) 21 WAR 1 (Railways Commission Case). 

34                  In argument before me ASIC accepted that its failure to comply with the certified agreement could be subject to judicial review for breach of public law.  That concession might be appropriate given the decision in the Railways Commission Case.  However, I am not convinced that it is correct.  One reason for this is that the relationship between the PSA and certified agreements made under the WRA is not altogether clear at least at this preliminary stage.  PSA s 8 provides that the PSA has effect ‘subject to the Workplace Relations Act, 1996’.  The WRA contains a number of provisions which could easily apply to public servants.  For example, the WRA makes provision for persons whose employment has been terminated to challenge the termination on various grounds, including that the termination was ‘harsh, unjust or unreasonable’: WRA s 170 HB.  Obviously those provisions could apply to a termination made pursuant to the PSA, particularly as that Act contains no statutory procedure for the review of a termination decision: see PSA s 33(1).  Indeed, the note to PSA s 29(1) makes it plain that those provisions of the WRA do have application to terminations made under the PSA.

35                  The WRA also makes provision for certified agreements: see the WRA Part VIB.  A certified agreement binds the relevant employer, in this case ASIC (see WRA s 170M(1)).  On the face of it the effect of s 170M(1) of the WRA, read with the PSA s 8, is that any and all provisions of the PSA are subject to any and all provisions of a certified agreement.  On the other hand, WRA s 170LZ(4) provides:

‘To the extent of any inconsistency, a certified agreement displaces prescribed conditions of employment specified in a Commonwealth law that is prescribed by the regulations.’

Regulation 30ZE of the Workplace Relations Regulations, 1996 provides that the ‘prescribed conditions of employment’ include those determined by the Agency head under PSA s 24(1).  No other provisions of the PSA are prescribed.  In particular, the power of termination pursuant to s 29 is not prescribed.

36                  ASIC says that the effect of WRA s 170LZ(4) and the relevant regulation is that s 29 PSA is not ‘displaced’ by the certified agreement and continues to be operable.  ASIC says that the power of termination is contained in s 29.  It accepts that the Certified Agreement can ‘fill in’ the detail of the statutory power at least so long as that detail is not inconsistent with the PSA, but says that the Certified Agreement cannot displace the provisions of the PSA absent a regulation under WRA s 170LZ(4).  For my part I am far from convinced that this submission is correct.  It may be that it gives insufficient weight to the clear terms of PSA s 8.  If so then there must be a real issue as to whether the Certified Agreement has ‘replaced’ PSA s 29(3)(a) as the source of the power to terminate the employment of an employee on the basis that he or she is excess.  If the Certified Agreement is now the sole source of the power to terminate on the basis that the employee is excess, then it would be necessary to explore how that power should be interpreted in light of the procedures to enforce compliance with the Certified agreement contained in WRA s 178.  That has not been argued.  In any event the question must also arise of what effect cl 48 of the Certified Agreement (read with WRA s 170LT(8) which requires that a certified agreement contain procedures for settling disputes) has on the question of whether public law is applicable to the acts of government employers in alleged breach of a certified agreement.  It seems to me to be at least arguable that cl 48 of the Certified Agreement requires employees who wish to challenge a termination to use that procedure.  That issue also has not been argued before me.

37                   These issues have not been fully explored in submissions.  The factual information before me is limited.  In these circumstances it is clearly inappropriate to determine as a preliminary question whether the determination by the Chairman that a staff member is excess for the purpose of cl 46 of the Certified Agreement is a determination of a jurisdictional fact or not.

38                  Consequently I think that it is inappropriate to determine either of the preliminary questions of law that are referred to in the Notice of Motion.

39                  I will hear the parties as to the appropriate order for costs.

Associate:

Dated:              4 May 2004