WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2013 WAIRC 00283

DELIVERED : WEDNESDAY, 15 MAY 2013

FILE NO. : M 8 OF 2012

APPLICANT

AND

Peter Conran, Director General, Department of the Premier and Cabinet

RESPONDENT

Catchwords : Application to amend claim alleging three further breaches of section 41 of the Minimum Conditions of Employment Act 1993; whether proposed amendments disclose a cause of action.

Legislation : Minimum Conditions of Employment Act 1993

  Industrial Magistrates Courts (General Jurisdiction) Regulations 2005

  Public Sector Management Act 1994

  Public Sector Management (Redeployment and Redundancy) Regulations 1994

  Corruption and Crime Commission Act 2003

Case(s) referred to

in reasons :  Glenn Ross -v- Peter Conran, Director General of Department of Premier and Cabinet 2011 WAIRC 01041

Result : Application granted in part

Representation:

Applicant : Mr Glenn Ross appeared in person

Respondent : Mr R Andretich instructed by the State Solicitor for Western Australia appeared for the Respondent

REASONS FOR DECISION

Application

1          On 24 January 2012 Mr Glenn Ross lodged an originating claim in which he alleged that on 11 January 2012, the Respondent appointed him to a new position without first giving him an opportunity to discuss with the Respondent the likely effects of the appointment and the measures that might have been taken to avoid or minimise significant effects of that appointment. He says that the Respondent has by that omission contravened or failed to comply with section 41 of the Minimum Conditions of Employment Act 1993 (MCE Act).

2          On 30 April 2012 Mr Ross lodged and subsequently served a multipurpose form by which he attempted to seek leave to amend his claim. It was his intention to obtain leave to amend his claim to allege three further breaches of the MCE Act.  It suffices to say that the process that Mr Ross used in attempting to seek leave to amend his claim was not in accordance with that which was required of him by Regulations 61 and 62 of the Industrial Magistrates Courts (General Jurisdiction) Regulations 2005 (the Regulations). Consequently the Court was, at that stage, not called upon to consider or resolve whether Mr Ross should be permitted to amend his claim.

3          At the commencement of the trial on 3 April 2013, Mr Ross indicated that he was intending to argue all four alleged breaches of section 41 of the MCE Act.  That drew an objection from the Respondent.  In the end result the trial was vacated and the matter was adjourned in order to give Mr Ross the opportunity to make his application, in the proper form, for leave to amend his claim.

4          On 10 April 2013, Mr Ross in compliance with Regulation 61 and 62 of the Regulations, made an application to amend his claim to include three further alleged breaches of section 41 of the MCE Act. The further alleged breaches are:

1. No one from the Department of Premier and Cabinet (the Department) spoke to Mr Ross about the likely effects and the measures that might have been taken to avoid or minimise the significant effect of the decision made by the Respondent to terminate his secondment to Edith Cowen University (ECU); and
2. No one from the Department spoke to Mr Ross about the likely effect and the measures that might have been taken to avoid or minimise the significant effect of the decision made by the Respondent to register him for redeployment; and
3. No one from the Department spoke to Mr Ross about the likely effect and the measures that might have been taken to avoid or minimise the significant effect of the decision made by the Respondent not to provide him with any work following the cessation of his secondment to ECU.

5          The Respondent opposes the application for the following reasons:

1. The cessation of Mr Ross’ secondment does not fall within the description of the meaning given to an action of an employer that had a “significant effect” ; and
2. There was no action taken with respect to Mr Ross’ proposed redeployment which had the possibility of having a significant effect on him; and
3. Given that Mr Ross has always occupied a position without specific duties there was no decision made of the type contemplated by section 41 of the MCE Act.

6          These reasons concern Mr Ross’ application lodged on 10 April 2013 for leave to amend his claim.

Background

7          On 1 September 2006, Mr Ross’ employment with the Corruption and Crime Commission ended and he reverted to the Public Service where he accepted employment with the Department. He, however, remained in dispute with the Department concerning his level of classification.

8          On 20 July 2007, Mr Ross was seconded to ECU as a lecturer. The secondment came to be rolled over at six month intervals and lasted in excess of three years.

9          On 25 May 2010, the Respondent wrote to Mr Ross to advise that his secondment would not continue beyond 30 June 2010. Mr Ross was directed to report to the Department’s office where he would be given work until such time as he could be redeployed to a suitable position in the public sector. Mr Ross was advised that it was the Respondent’s intention to register him for redeployment as the Department had no suitable positions into which he could be deployed.

10       After a delay Mr Ross’s secondment to ECU was terminated and he returned to work for the Department on 16 August 2010. Upon his return to the Department he was given a position without specific duties however, the Department did not proceed with its intention to register him for redeployment.

11       Mr Ross was subsequently diagnosed with major depression and anxiety said to have been existent in May and June 2010.  Shortly after recommencing with the Department Mr Ross was absent from the workplace, on sick leave, and has remained on sick leave since then.

Determination

12       In determining this application, I need to decide whether the facts as put before me by Mr Ross could substantiate the three further breaches alleged. I am not called upon to finally determine each further alleged breach but rather determine whether the further three alleged breaches are arguable.

13       Section 41 of the MCE Act provides:

 “(1) Where an employer has decided to —

   (a) take action that is likely to have a significant effect on an employee; or

   (b) make an employee redundant,

the employee is entitled to be informed by the employer, as soon as reasonably practicable after the decision has been made, of the action or the redundancy, as the case may be, and discuss with the employer the matters mentioned in subsection (2).

   (2)  The matters to be discussed are —

(a) the likely effects of the action or the redundancy in respect of the employee; and

(b) measures that may be taken by the employee or the employer to avoid or minimize a significant effect,

  as the case requires.”

14       Relevantly, section 40 of the MCE Act provides:

“40. Terms used

   (1) In this Part —

  employee does not include a casual employee or an apprentice;

  redundant means being no longer required by an employer to continue doing a job because the employer has decided that the job will not be done by any person.

  (2) For the purposes of this Part, an action of an employer has a significant effect on an employee if —

   (a) there is to be a major change in the —

   (i) composition, operation or size of; or

   (ii) skills required in,

    the employer’s work‑force that will affect the employee; or

   (b) there is to be elimination or reduction of —

   (i) a job opportunity; or

   (ii) a promotion opportunity; or

   (iii) job tenure,

    for the employee; or

(c) the hours of the employee’s work are to significantly increase or decrease; or

(d) the employee is to be required to be retrained; or

(e) the employee is to be required to transfer to another job or work location; or

(f) the employee’s job is to be restructured.”

Termination of the Secondment

15       In Glenn Ross -v- Peter Conran, Director General of the Department of the Premier and Cabinet [2011] WAIRC 01041, Her Honour Acting President Smith made a specific finding concerning the legal nature of Mr Ross’ secondment.  In that regard, she said at paragraph 133:

 “… at law, other than the performance of functions, services or duties in the service of ECU, the appellant’s (Mr Ross) other terms and conditions of employment as a public service officer remained unchanged and his contract of employment with the respondent did not cease and nor was it or the terms and conditions of his employment as a public service officer suspended”

16       The Respondent says that throughout the period of Mr Ross’ secondment, and following, he occupied the position of a “Principal Policy Officer” in the Department.  That position is described as unattached because it was and is not attached to any specific duties (see Glenn Ross -v- Peter Conran, Director General of the Department of the Premier and Cabinet (supra) at paragraph 133).

17       The Respondent submits that the ending of the secondment was no more than an end to the temporary placement with respect to which Mr Ross did not have ongoing rights. He argues that it cannot be reasonably submitted that the cancellation of the secondment came within the description of an action of an employer that had a significant effect on Mr Ross.

18       Subsection 40(2) of the MCE Act sets out the actions, which for the purposes of section 41 of the MCE Act, have a significant effect on an employee. Mr Ross does not, with respect to the cessation of his secondment, rely on any of the actions set out in subsections 40(2)(a), (2)(c), 2(d) or (2)(f).  His claim is founded on subsections 40(2)(b) and/or 40(2)(e) of the MCE Act.

19       It is difficult for Mr Ross to argue that section 40(2)(b) has application given that the job he was doing at ECU was of a temporary nature. A placement in perpetuity is inconsistent with the notion of secondment and is not permitted by section 66 of the Public Sector Management Act 1994. Consequently he did not have an ongoing right to do the job that he was doing at ECU. By its very nature, his job at ECU was temporary. It did not have the quality of permanency required by section 40(2)(b) of the MCE Act.

20       Mr Ross knew, or ought to have known, from the start of his secondment that the job he was doing at ECU would, for the purposes of the secondment, come to an end. Given the innate temporary nature of the secondment, the ending of his secondment was contemplated by all parties and could not be regarded as the action of an employer that has a significant effect on the employee. That is so, even if the Respondent has unilaterally brought the secondment to an end. The secondment arrangements fall outside that contemplated by section 40(2)(b) of the MCE Act.  The MCE Act only has application to Mr Ross’ substantive position as it existed before, during, or after the secondment.  

21       Once Mr Ross’ temporary arrangement ended he continued in his substantive position.  He was not required to transfer to another job or work location but rather required to resume his substantive position at his work location.

22       It appears that Mr Ross was of the view that his secondment to ECU would be ongoing.  He was hopeful that it might have led to a permanent appointment. Clearly such a permanent appointment could not occur within the terms of the secondment. The ending of the secondment could not therefore eliminate or reduce his substantive job opportunity, promotion opportunity or job tenure.

23       In so far as section 40(2)(e) of the MCE Act is concerned it cannot be said that Mr Ross was required to transfer to another job or work location. There was no transfer. The cessation of his secondment put him back in the same position he had been in prior to his secondment. He resumed his position. The position to which he returned was the same as it was prior to the secondment.

24       The claim founded on the cessation of his secondment is not arguable. The amendment of Mr Ross’ claim in that regard will be not permitted.

Redeployment

25       Registration under the Public Sector Management (Redeployment and Redundancy) Regulations 1994 is at the discretion of the Public Sector Commission (see Regulation 11).  Although the decision to register an employee for redeployment is discretionary, it may nevertheless have a significant effect on that employee.  It is the type of action contemplated by section 40(2)(d) and (2)(e) of the MCE Act.

26       The Respondent argues that given that registration or redeployment did not occur there was no action taken which had the possibility of invoking a significant effect on Mr Ross. The factual circumstances take it outside that contemplated by section 41 of the MCE Act.

27       However, based on the evidentiary material produced by Mr Ross in support of his application he could well argue that Mr Conran, in his letter to him dated 25 May 2010, indicated he had made the decision to register Mr Ross for redeployment.  That decision at that time could possibly have had a significant effect on Mr Ross.  It seems to me arguable that the decision made on or about 25 May 2010 was of the type contemplated by section 41 of the MCE Act.

28       Whether or not the subsequent decision not to proceed with the registration impacts the alleged breach is open to argument.

29       Mr Ross is granted leave to pursue his claim in that regard.

Failure to Provide Work

30       Mr Ross argues that the Respondent’s failure to provide him with work upon his return to the Department following his secondment is an “action” contemplated by section 40(2)(c), (2)(d) and (2)(e) of the MCE Act.

31       It appears however, that when Mr Ross returned to the Public Service in 2007, under section 180(3) of the Corruption and Crime Commission Act 2003, he took up a position within the Department to which no work or specific duties were attached. His position was a supernumerary position.

32       Mr Ross’ secondment to ECU was agreed as a result of his own initiative. However, that secondment was always temporary. It could never be permanent because any permanent appointment would have been impossible.  A permanent appointment would have amounted to a change in employment.

33       The cessation of his secondment, irrespective of who initiated it or how it came about, had the effect of bringing the temporary arrangement to an end. There was no change to Mr Ross’ employment notwithstanding that there were changes in the performance of his functions, services or duties. The interlude created by the secondment finished and Mr Ross continued in  exactly the same position he was in prior to his secondment.   It follows that the contention that the Respondent has taken the action specified in sections 40(2)(c), (2)(d) or (2)(e) of the MCE Act is not maintainable.  The reasoning I adopted with respect to the secondment issue has equal application to this ground.

34       On 25 May 2010 Mr Ross was advised in writing that he would be provided with work when he returned to the Department.  He was subsequently orally advised on 2 June and 11 August 2010 that no work would in fact be provided. He says that such change was one with respect to which he should have been consulted and that such failure constitutes a breach of section 41 of the MCE Act.  In that regard it suffices to say that although different permutations were put to him with respect to his proposed duties upon return to the Department, the fact is that when he returned to the Department there was no change from that which pre-existed the secondment. There was in reality no change made. There was no decision made which required the need for the Respondent to consult with Mr Ross.  Given that there was no action taken that had a significant effect upon Mr Ross, there can be no basis for his claim.

35       Leave is not granted for Mr Ross to amend his claim with respect to this ground.

Conclusion

36       The application is granted in so far as leave is granted for the Claimant to amend his claim alleging a breach of section 41 of the MCE Act, constituted by the Respondent’s failure to speak with him regarding his redeployment.

37       The application is otherwise dismissed.

38       The Claimant shall, within 14 days hereof, lodge and serve his further fresh outline of claim.  The respondent shall lodge and serve his further response within 14 days thereafter.  The requirement for a pre-trial conference is dispensed with.  The Clerk of Court shall immediately after the lodgement of the further response, list this matter for trial. 

G. Cicchini

Industrial Magistrate