Public Sector Management Act 1994 (WA) Public Sector Management (Examination and Review Procedures) Regulations 2001 (WA) Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (WA) Working with Children (Criminal Record Checking) Act 2004 (WA) Labour Relations Reform Bill 2002 Interpretation Act 1984 (WA) Interpretation of Legislation Act 1984 (Cth) Result : Application for interim orders dismissed Counsel: : M : N Solicitors: : Case(s) referred to in reasons: BHP Billiton Iron Ore Pty Ltd v Construction, Forestry, Mining and Energy Union of Workers and Anor [2006] WASCA 49 Brett v Sharyn O’Neil, Director General, Department of Education [2015] WASCA 66 Burswood Resort (Management) Ltd v Australian Liquor, Hospitality and Miscellaneous Workers’ Union [2003] WAIRC 09550 Director General Department of Justice v Civil Service Association of Western Australia Incorporated [2005] WASCA 244
Interest Principle (applies to secondments, transfers and acting) Decisions an employee’s secondment, transfer or acting take account of the employee’s interests and the work related requirements of the relevant public sector body. Transparency Principle Decisions are to be transparent and capable of review. 34 A section then follows, called “Terminology”. It contains a number of defined terms. The defined terms include that for “Competitive Field”: Competitive Field: A field which includes more than one person who meets the requirements of the vacant position; competitive fields are generally achieved through the advertising of a vacancy. 35 Next is a definition of “Transfer” which appears as follows: Transfer: The permanent movement at the same classification level. Transfers occur in accordance with the employment standard, industrial awards and agreements or other applicable legislation. 36 Furthermore “Vacancy” is defined as follows: Vacancy: A vacant post, office or position within the public sector. A vacancy can result from the creation of a new office, post or position or by the temporary or permanent movement of another employee. For redeployment purposes a vacancy is defined as all offices, posts or positions, newly created, recently vacated or to be filled on a temporary basis in excess of six months. (My emphasis) 37 Accompanying the Employment Standard, in materials prepared by the Public Sector Commission, are attached “Questions and Answers”. They are described by the Public Sector Commission as “practical information to assist public sector bodies and their employees to understand and apply the Commissioner’s Instruction: The Employment Standard”. It is clear they do not form part of the standard. Throughout the question and answers, reference is made to “vacancies” and the “filling of vacancies” by public sector bodies, in explaining the application of the Employment Standard and its requirements. 38 It is trite that in construing the terms of an instrument, it should be considered as a whole. The meaning of each provision of the Employment Standard is to be considered in the context of its purpose and object, gathered from its provisions read in their entirety. It is also clear from s 21 of the PSM Act, that a public sector standard has the status of delegated legislation and should therefore be interpreted in accordance with accepted canons of construction that apply to legislative instruments generally.