These proceedings are dispute proceedings in which an employee of Fire and Rescue, Mr Craig Ferns, has been subject to an assignment pursuant to powers exercisable by an employer, here Fire and Rescue, under s 46 of the Government Sector Employees Act 2013. ('the GSE Act') That is what has actually been done. A statutory power has been exercised, and there is no suggestion that the delegate who exercised the power lacked power under the statute to exercise the power. No question of that kind arises.
The Public Service Association, on Mr Ferns' behalf, has notified and pursued a dispute about the matter and seeks certain orders in relation to Mr Ferns; in terms, first, an order that Fire and Rescue treat the assignment to role of Craig Ferns to the position of Alarms Advisor as null and void and, secondly, an order that Fire and Rescue treat Craig Ferns as the current permanent occupant of his former position at ComSafe.
Mr Wright put in his opening submissions, quite correctly, that the Commission is not bound only to those orders that the Public Service Association advanced in their terms. This is not a court of strict pleading. The Commission has an overarching responsibility to prevent and settle industrial disputes and could formulate of its own accord, as it often does, its own orders in a proceedings.
Nevertheless, it was important that the PSA outline the relief it actually sought in the proceedings for two essential reasons, one being that there is a real question, which I will explore in a moment, about the jurisdiction of the Commission to make any kind of orders of that kind and, secondly, simply as a matter of fairness, to permit both parties and the Commission to understand what was actually being sought.
Now, there is no doubt that an employer has a power to effect an assignment under s 46 of the GSE Act. That is made abundantly clear by the section itself, which has at the head of the rubric assignment to roles and work classification. It is not, of course, that the rubric is to be used in understanding the meaning of any doubtful words in the section but it does tell us what the purpose of that section of the Act is.
Public Service Association of NSW o/b Ferns v Fire and Rescue NSW [2018] NSWIRComm 1014 | Case summary | Zoe
Under subs (2) of s 46, the head of a public service agency, and pursuant to the regulations it is abundantly clear that this can be a delegated power, "may, from time to time, assign public service non-executive employees of the agency" - and I interrupt the quote to say such as, in this case, Mr Ferns - "to roles in the agency in the classification of work in which the employees are employed." I will return to the words "classification of work in which the employees are employed" because a point is taken about it. But it is abundantly clear that there is a power to assign. Subs (3) gives the general proposition that it has the purpose of flexible deployment of staff resources and to develop capabilities of staff. Then there is subs (4).
Subs (4) is a qualification upon the unfettered power to assign because it says, "A public service non-executive employee", and again I interpose, such as Mr Ferns, "is not to be assigned to a different role, unless the employee has been consulted". Then follow subsections about remuneration, which do not apply here.
So there is a mandatory statutory obligation to consult with an employee, without which it being done, an employee is not to be assigned. There is no other fetter in s 46 upon the ability of an agency head to assign. That is the only one.
The objection taken by the Public Service Association is that the assignment was improperly carried out, that is the statute was not complied with, for reason of a failure to consult, the mandatory requirement set out in subs (4). "Consult" here means more than an employee is told something is going to happen. "Consult", in this context, that is the context of s 46 of the GSE Act, must include an opportunity for an employee to make submissions, put their point of view and let those submissions be heard. It does not mean that the employee's position has to be accepted or acceded to. Nor does it mean that if the employee does not agree when they are consulted, consultation must go on until some kind of agreement is reached. "Consultation" does not, importantly, carry with it the connotation that ultimately there be agreement about an assignment. It is a requirement to consult. The consultation must be real and meaningful, as I have just set out, but it does not mean that the employee has to agree with what is being proposed.
On the face of the statute, once an employee has been consulted, an agency head is free to effect an assignment to roles in the agency, in the classification of work in which the employees are employed.
As to consultation, it is amply clear on the facts here that Mr Ferns, the employee, was consulted. His association was consulted. He was certainly consulted within the meaning of s 46(4) of the GSE Act. There were, on my count, three meetings before the assignment took place at which the proposition was advanced to Mr Ferns. I readily accept that neither he nor his representative body, the Public Service Association, welcomed or agreed with the assignment; that is not what the Act requires. The Act requires there be consultation. In my view, it is abundantly clear on the evidence that there was consultation within the meaning of s 46(4) and, therefore, that the power under s 46(4) to assign was not carried out in a way that was non-compliant with the Act as posited by Mr Wright in his submissions.
It was put by Mr Wright that a lack of candour about the underlying reasons for the assignment vitiated the consultation. I cannot agree. Firstly, I do not think that point is made out on the facts and, secondly, in any event, there is nothing in the Act or regulations that requires some notion of full disclosure or anything of that kind in the context of consultation.
If a person were deliberately not told the role they were going to, that might be something, but all of the reasons that might go into a department head's decision to make an assignment, particularly when one looks at subs (3), are not, in any event, required to be disclosed. But, as I say, I cannot form the view here that there was a vitiating lack of candour in respect of the transfer here.
I emphasise that the question of whether s 46 or the GSE Act at large has been complied with is not an assessment by this Commission of whether the employer's decision to assign is the best and preferable decision in all the circumstances. That question is not a part of any assessment of whether subs 46(4) has been complied with, that, of course, being the test of whether an assignment has been lawfully carried out. The test is whether the statute has been complied with and here it has. In any view, there was compliance with the provisions of the GSE Act. That is not necessarily the end of the matter but that much is clear.
I deal here with the proposition that Mr Ferns was improperly placed in a role because he did not possess the certification required of the role. That is not anything contemplated by the GSE Act, in any event. But I am not at all satisfied that that is the case. I accept the submission that the provision that one sees in many job advertisements that a person must have the relevant qualifications and certificates does not mean, in any given case, there are some. It certainly does not mean, with respect to Mr Ferns, whose reasoning I understand, that the certificates that he posits at paragraph 12 of his statement of evidence would be required, are required. It is nowhere to be found in any evidence, including material that might have been subpoenaed if it was sought, that those certificates that Mr Ferns posits would be required are in fact required. I cannot find that there were certificates required that Mr Ferns did not possess, even if that were to be a basis on which it could be said that s 46(4) were not complied with, which I do not think it could be. It is not made out on the facts in this case.
It is abundantly clear on Mr Ferns' own evidence, and Mr Ferns I accept as a witness of truth who spoke candidly in giving his evidence, that his fundamental objection to the transfer is that he perceives it as some sort of victimisation or reprisal. Notwithstanding that, in some ways, the new position assists him with some aspects of his personal life, he certainly perceives it in that way; he said so in his evidence and I accept that from him.
I cannot see, on any of the evidence before the Commission, that this transfer was carried out by way of victimisation or reprisal. I do observe that Mr Ferns has perceived a number of actions taken by Fire and Rescue over a number of years as victimisation or reprisal. I make no comment on those other circumstances - which have already, I think, been investigated and responded to by Fire and Rescue - in the course of these proceedings. But as to this circumstance, I cannot see that this placement was either victimisation or reprisal for anything at all, whether in response to him having made certain protective disclosures or otherwise. Nor can I see it as an action taken to his detriment within the meaning of the Anti-Discrimination Act because he had parental responsibilities. I readily accept that he had those responsibilities but I cannot see that the action taken here, which ironically, in some ways, would assist him with those responsibilities, could be seen as victimisation or reprisal on that basis.
I also observe that on the evidence the position was taken by Mr Ferns and the PSA that the role to which he was assigned should be a 9/10 role, not a 7/8 role. Again, that too is not a test of whether the GSE Act has been complied with. While I can certainly understand that a person might like to see their role upgraded or might honestly and genuinely believe that the new role warranted a higher classification, that has no bearing on whether the GSE Act has been properly observed.
So far as it is put to the Commission that Fire and Rescue has not followed their statutory obligations under the GSE Act, that is simply not the case. So far as it is said that the decision is wrong or bad or unfair, I must say that I cannot see, in any case, that that is so. But here is the rub; even were the Commission to come to the view that the decision was the less preferable decision or even unfair, I cannot see any basis on which the Commission could make any order to provide relief for Mr Ferns, whether in the terms of the orders posited by the PSA, or some other orders contrived by the Commission, or on any other basis. I cannot see that any order can be made giving relief to Mr Ferns as it is sought. That is to say, to take him out of the role to which he has now been lawfully assigned and put him back in a role which, as it happens, no longer exists, but even that not being the point; the point rather is that the Commission does not have a power to direct the employer as to which persons it will place in which roles. Such a power simply does not exist.
When one looks at s 136 of the Industrial Relations Act, which section is actively invoked by the fact that an industrial dispute is before the Commission, that section provides that the Commission may make dispute orders, which demonstrably are not sought here, or another order of a kind that the Commission is authorised to make under the Act. There is ample authority for the proposition that "any other order the Commission is authorised to make" under the Act means one of the orders specifically set out in the statute. It might also conceivably mean an order which the Commission has an implied power to make, but there is no implied power to make an order in the Commission to restore people to their employment because that is dealt with specifically by the comprehensive code effected by ss 84 to 89 of the Act. Nor is there a power to make directions about in what role a person should be employed.
Nowhere in the Act can one find a power to make an order, outside the confines of s 89 which is not agitated here, that an employer must remove an employee from one position (and I add, one to which they have been lawfully appointed, but even leaving that aside,) and then place them in another position. The Commission has no power to create roles in an agency. There is no doubt about that.
It was belatedly put, as I say, that the Anti-Discrimination Act had been contravened. I simply cannot accept that. I accept that Mr Ferns has parental responsibilities but I cannot see that the act of transferring him to this role discriminates against him for having those responsibilities.
The sum of the matter is that the Commission has no power under the Industrial Relations Act to make any kind of order that would change Mr Ferns' situation. I readily accept he does not like it, and I am sympathetic to him in that regard, but there is nothing the Commission can do to change the circumstances. That determines the matter. If there is no power, there is no power. And there is no power to make an order of the kind sought by the PSA or another order controlling the placement of employees in roles, Mr Ferns or anyone else.
Indeed, in my view, that power would not exist, even if the department had not complied with the GSE Act. This is not the Supreme Court; there is available no injunctive relief in the order of mandamus or anything of that nature. Even if the agency had not complied with the GSE Act, while it is possible the Commission might in dispute proceedings be empowered to make a recommendation, which, of course, would not be binding or enforceable at law in that regard, it could not make an order. As I say, in my view, it is abundantly clear that the agency has complied with the GSE Act, so the question does not arise. But, even had it not, no order could be made, in my view, by the Commission.
The question about the classification of work was raised by Mr Wright in submissions to assist Mr Ferns. I cannot see that the assignment is not one within a classification of work. The Act itself speaks very broadly and lightly about what a classification of work is. The guidelines effected by the public sector authority, which, of course, are not any more than just guidelines and do not have the power of statute or even delegated legislation, say that classification of work should be regarded as including roles within the agency that are a similar grade, remuneration and capability requirements as determined by the agency head. "Similar" is what is required. There does not have to be any congruence of them. I cannot see it in this circumstance where the man is asked to work in the same directorate, the same role, at the same pay, that that cannot fall within the guidelines, even if I were to accept, which I do not, that the guidelines are in any way binding on the way in which the Act is to be interpreted.
Even if I am wrong in all of that, and there were a power, contrary to what I believe to be the correct view, to make the kind of order sought, I do not see any basis, on the merits of the matter, on which the Commission would intervene in any event. I accept that Mr Ferns did not wish to be moved into the new role and would prefer he move back to his old role. He is entitled to that view, obviously; I do not take that lightly. It does not mean that the agency's discretionary power to transfer him has not been properly carried out.
One notes particularly, of course, that the employer has a responsibility to Mr Ferns with respect to his health, safety, career progression and job satisfaction, but also has exactly the same responsibilities for all of its employees. When one looks at the evidence that is contained, helpfully, in the annexures to Mr Ferns' affidavit, and sees some of the background of this matter, one sees that far from being an improper basis to effect Mr Ferns' transfer to consider what other employees may have gained or lost from that transfer being effected, it is quite a proper matter for an agency head to so consider.
The GSE Act I return to because it must be understood greatly to enhance the powers the departmental heads and their delegates to move and, indeed, under s 47 of that Act, dismiss employees, powers that are far greater than existed before and far more readily exercised. The test, for example, whether under s 47, an employee can be dismissed on one of the bases set out in the statute will have nothing at all to do with common law tests about dismissal; it will simply depend on the proper observation of the statute. I rely on the decision in McGinn v Secretary, Family and Community Services [2017] NSWIRComm 1039 for that proposition, which decision was untouched on appeal. Of course, ss 84-89 will still have application in relation to an actual dismissal.
Absent an express power in the Industrial Relations Act to override a lawful exercise of power under the GSE Act, which there is in the case of s 89 of the Industrial Relations Act, but there is not in the case of opposition to a transfer under s 46 of the GSE Act, I cannot see that this Commission is empowered to take a step or unravel, or act contradictorily to, a decision lawfully taken pursuant to the GSE Act.
The conclusion must be that the Commission has no power to make an order, fashioned in whatever terms to achieve the outcome that the PSA seek to achieve for Mr Ferns today. It would not be appropriate, even if one could somehow discern an implied power in the Industrial Relations Act, which I cannot, to use such an implied power to override the express provisions of another, later in time, Act, such as the GSE Act, which is demonstrably made for the express purpose, so the second reading speech tells us, of granting greater flexibility to departmental heads in dealing with the employment of public servants within their charge.
It follows that I am unable to make any orders for relief of the kind that is sought by the PSA for Mr Ferns, or any other orders that I could imagine fashioning, to assist Mr Ferns. I am obliged to conclude these proceedings without making any orders at all and I do so. These proceedings are concluded. I will cause a copy of the transcript of this ex tempore decision to be typed and furnished to the parties without charge, as quickly as it can conveniently be done.
PETER NEWALL
Commissioner
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Decision last updated: 13 March 2018