For the reasons outlined at [48]-[54] above, I do not accept that the Grievance Resolution Standard requires employers to inform employees of the existence of the grievance resolution process. To read the standard as imposing this obligation, would render reg 28 of the Regulations imposing that obligation, 'superfluous, void, or insignificant': Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28 [71] (per McHugh, Gummow, Kirby and Hayne JJ). Accordingly, while reg 28 addresses the obligation to inform employees about the standards generally; the standard itself addresses how grievance resolution processes must be conducted once a grievance is raised.
Even if CAHS failed to comply with reg 28, a breach of reg 28 is not a breach of the Grievance Resolution Standard. Regulation 28 imposes an obligation on employing authorities that is separate from, and additional to, the obligations arising under the standards themselves. A failure to comply with reg 28 may have other consequences, but it does not constitute a breach of the Grievance Resolution Standard and cannot found a claim under s 36AJ of the IR Act.
It follows that, if there is no grievance, no employee is within the grievance resolution process, and there is no requirement under the standard for the employee to be informed of their rights and responsibilities in the grievance resolution process.
Finally, in both her original and responsive submissions, Ms Neskovic contends that CAHS breached the Grievance Resolution Standard by responding to the breach of standard claim form that she submitted on 24 September 2025 and stating that as she had not lodged a grievance, there was no reviewable decision capable of review, which effectively refused and closed down her breach claim.
In effect, Ms Neskovic is contending that the closure of her breach of standard claim is a reviewable decision. However, as outlined at [12] above, a reviewable decision is defined under reg 3 of the Regulations as a decision made 'as the result of the completion of a process to which a public sector standard applies'. The breach claim process is not a grievance resolution process. CAHS' response to Ms Neskovic's breach of standard claim was not a decision made as a result of the completion of a grievance resolution process. Even if CAHS' response to her breach of standard claim could be characterised as a reviewable decision, which it cannot, reg 6(1) of the Regulations provides that Ms Neskovic would first need to lodge a further breach of standard claim with CAHS in respect of that response before referring it to the Commission. Ms Neskovic's contention that each refusal of a breach of standard claim itself generates a new breach of standard claim, circumventing the requirement that the Grievance Resolution Standard must actually have been engaged, cannot be accepted.
As outlined at [41]-[42] above, if there is no grievance, there can be no breach of the Grievance Resolution Standard. CAHS' response to Ms Neskovic's breach of standard claim, which informed her that no grievance had been lodged and that no grievance resolution process had been undertaken, was a correct statement of the position. CAHS' refusal to progress the breach of standard claim, and its closure of the claim, was the necessary consequence of no grievance having been lodged and no grievance resolution process having been undertaken.
Ms Neskovic is correct in contending at [27(d)] above, that she is not prevented from raising a grievance in the future.
However, in this matter (P 51 of 2025), there is simply no evidence that Ms Neskovic has raised a grievance. As Ms Neskovic has not raised a grievance, there has been no grievance resolution process, the completion of which has resulted in a reviewable decision or otherwise. As there is no completion of the grievance resolution process that has resulted in a reviewable decision or otherwise, CAHS cannot have breached the Grievance Resolution Standard. As there has been no breach of the standard, Ms Neskovic cannot make a claim for relief for a breach of standard to CAHS. As she cannot make a claim for relief for a breach of standard to CAHS, she cannot apply to the Commission for review of that breach of standard claim.
[2]
For the preceding reasons, I am not satisfied that Ms Neskovic has established that her application meets the requirements of s 36AJ of the IR Act.
Accordingly, I will issue an order dismissing application P 51 of 2025 for want of jurisdiction.
Parties
Applicant/Plaintiff:
Project Blue Sky Inc
Respondent/Defendant:
Australian Broadcasting Authority
Legislation Cited (3)
Relations Act 1979
Sector Management Act 1994
Sector Management (Breaches of Public Sector Standards) Regulations 2005
Cases Cited (4)
Sladjana Neskovic -v- Child and Adolescent Health Service [2026] WAIRC 185; (27 March 2026)
Project Blue Sky Inc v Australian Broadcasting Authority[1998] HCA 28
The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc[1994] HCA 54
On 20 October 2025, the applicant (Ms Neskovic), filed a Form 24 - Applicationto Refer Breach of Public Sector Standards Claim, seeking to refer a breach of the Grievance Resolution Standard that she contends she submitted to the respondent (CAHS) on 24 September 2025.
On 10 November 2025, CAHS filed a Form 4 - Response, raising the jurisdictional objection that as Ms Neskovic did not lodge a grievance with it, there can be no claim of a breach of the Grievance Resolution Standard that is capable of review by the Commission.
On 6 February 2026, the matter was listed for a Directions Hearing, at which the following Directions ([2026] WAIRC 00072) were issued:
THAT the respondent's jurisdictional objection (that the Commission does not have jurisdiction to hear and determine the applicant's Form 24 - Application to Refer Breach of Public Sector Standards Claim, for an alleged breach of the Grievance Resolution Standard, because the applicant did not lodge a grievance with the respondent), be heard and determined as a preliminary matter (Preliminary Matter), on the papers.
THAT the applicant file any witness statements and submissions relevant to the Preliminary Matter by Friday, 20 February 2026.
THAT the respondent file any witness statements and submissions relevant to the Preliminary Matter by Friday, 6 March 2026.