The Secretary to the Prime Minister's Department has referred for advice the following memorandum, dated 4 July 1922, addressed to the Prime Minister by the Acting Public Service Commissioner:

The Acting Public Service Commissioner has the honour to invite attention to memorandum of even date forwarded to the Prime Minister's Department, dealing with Determinations issued by the Public Service Arbitrator (Nos 10 and 11 of 1922) embracing orders for reclassification of certain positions in the Public Service, viz.:

1. Raising the classification of the position of Senior Mechanic, Telephone Workshops, Sydney, occupied by J. Flynn, to the grade of Foreman Mechanic.
2. Raising the classification of an officer, the Works Director, Victoria, from Class B to Class A2 of the Professional Division.

(2) Reference is suggested to the following documents as bearing upon the question of jurisdiction of the Arbitration Court as submitted in this memorandum:

1. Transcript of proceedings before the Public Service Arbitrator on 30.3.22 (herewith).
2. Judgment of Public Service Arbitrator dated 7.4.22-Determination No. 5 of 1922 (printed copy herewith).
3. Memorandum by Acting Public Service Commissioner addressed to the Prime Minister, 23.4.22 (copy herewith).

1. The relative sections of the Arbitration (Public Service) Act 1920 are sections 12, 17, and 20. It would appear that section 17 must be read in conjunction with the provisions of section 12(1), and that therefore no wider powers are conferred by section 17 than those contained in section 12(1). If this be so, then 'any matter or thing which the Arbitrator thinks necessary in the interests of the public or of the Public Service' must be limited to the particular matters enumerated in section 12 (1)-salaries, wages, etc.
2. A further question for consideration is whether the provisions of section 12 (1) as to determination of salaries involve the wider question of classification of positions. In other words, can the objects aimed at by Parliament be achieved without recourse to reclassification of positions? Apparently, if section 12(1) gives no specific direction and no power to the Court to review the classification of the Public Service, then section 17 confers no wider power, and the claim of the Arbitrator as to jurisdiction in this matter is untenable.
3. It will be observed that, in one of the cases covered by the Determinations issued on 30.6.22, the Arbitrator orders that the position-not the officer-be raised in classification. By section 12 (1) the Arbitrator is empowered to deal with salaries . . . of officers and employees of the Public Service. No authority is vested in the Arbitrator to deal with positions as distinguished from officers. The question arises then whether the Arbitrator has not exceeded his jurisdiction in dealing with a position irrespective of the occupant who may or may not be entitled to personal reclassification upon the raising of the classification of a position. The Arbitrator could not in this case have made an order in respect to the officer in the position, as that would have involved questions of relative efficiency and seniority, which only the Public Service Commissioner is able to determine. See p. 5 of judgment dated 30.6.22, dealing with Flynn's case (No. 10 of 1922). See also section 41 Public Service Act as to creation and abolition of offices, and section 42 as to promotions.
4. The plan of the Arbitration (Public Service) Act is based largely on the Conciliation and Arbitration Act with certain modifications as to proving of disputes

etc., and claims must be filed by organisations of public servants registered under the main Act. See section 12 (2) Arbitration (Public Service) Act. It is open to question whether the Act contemplated arbitral action in respect to individual members of an organisation.

1. If it be held that the Arbitration (Public Service) Act is sufficiently wide to permit of reclassification of positions, or of officers, by the Arbitrator by the raising from a lower to a higher class, then apparently power exists equally to transfer officers from one Division to another Division in the Public Service. As a matter of fact, one application has only recently been filed with the Court asking that certain officers be transferred from the General Division to the Clerical Division without compliance with the conditions imposed by law as to the passing of a clerical examination.
2. Section 20 of the Arbitration (Public Service) Act 1920 provides that determinations are not to be appealed against in any court on any account whatever. The question of jurisdiction in Public Service cases was raised in 1914 on an Award made by Mr Justice Higgins in the case of the Australian Telegraph and Telephone Construction and Maintenance Union.'" See Counsels' opinion (Messrs Starke and Mitchell) dated 14.8.14, in which it was held that the provisions of the Arbitration (Public Service) Act cannot take away or affect the jurisdiction granted by the Constitution. See also cases reported at 1 C.L.R. p. 181 and 10 C.L.R. p. U4.'21
3. The matter at issue is one of paramount importance in view of the provisions of the Public Service Bill now before Parliament as to the creation of a Board of Commissioners and the classification of the Public Service, and as to hearing of appeals against such classification (clause 26 of Bill). If the Public Service Arbitrator is to have appellate jurisdiction, and thus be constituted a second court of appeal, administration of the Public Service must become hopelessly involved and chaos must inevitably result. Two classifying authorities would be constituted, the Public Service Board and the Arbitrator, each working on different principles, and possibly arriving at contradictory results.
4. It is suggested by the Acting Commissioner that the papers in this matter be forwarded to the Attorney-General's Department for legal advice as to whether in the making of the orders referred to there has been any excess of jurisdiction, and as to the proper course to be taken, apart from obtaining a resolution of disapproval by Parliament, to secure a decision of the High Court. If it be found that the orders now made are not ultra vires of the Arbitration (Public Service) Act, the matter is apparently one for serious consideration by the Government as to what legislation is necessary to amend the Arbitration (Public Service) Act in order that the power of the Board of Commissioners in respect to the classification of the Service may be untrammelled.

Sub-section (1) of section 12 of the Arbitration (Public Service) Act 1920 provides as follows:

The Arbitrator shall, subject to the provisions of this section, determine all matters submitted to him relating to salaries, wages, rates of pay, or terms or conditions of service or employment of officers and employees of the Public Service.

There is, I think, no doubt that the Arbitrator may, if he considers that the duties of a particular office have changed, alter the salaries payable to the holder of that office. In other words, there is nothing in the Arbitration (Public Service) Act 1920 to prevent the Arbitrator fixing separately the salary or limits of salary of each office in respect of which a claim is made. Thus, although a particular office may be classified in Class E of the Professional Division under the Commonwealth Public Service Act 1902-1918 the Arbitrator, if he considers that the nature of the work warrants the payment of salary under the Class D scale, may award accordingly. If instead of expressly prescribing the rates of salary he prescribes that the office be placed in Class D, in my opinion, he merely reaches the same end by a shorter road.

Classification is, in my opinion, only part of the means for prescribing salaries.

Again I see no reason why the Arbitrator should not prescribe as a term of service that, on the happening of certain events, an office shall be reclassified. He thus prescribes a term or condition of service as a substitute for the term or condition provided by section 41 (c) of the Commonwealth Public Service Act (giving the Governor-General power to reclassify under certain conditions).

For the reasons mentioned above, I am, therefore, of opinion that the Arbitrator has power on a proper application to reclassify any office in the Public Service.

As in my opinion the power to reclassify is conferred by section 12 it is unnecessary, for the purpose of determining the present question, to express any opinion as to the effect of section 17 seeing that in this case the Arbitrator granted the specific claim which was made.

The question raised in paragraph (4) of the Acting Public Service Commissioner's memorandum has been answered above where it was shown that reclassification is simply a short way of altering salaries.

As regards the question raised in paragraph (5), I presume that the Arbitrator prescribes salaries according to the work done by officers and not according to the personal ability or qualifications of an officer and he, therefore, fixes the salaries attaching to offices and not the salaries of officers. He says, in effect: 'The remuneration for certain work shall be in accordance with the salary prescribed for Class E or D or as the case may be'.

I have already answered in the affirmative the question raised in paragraph (6) as to the determination by the Arbitrator of the salary etc. in respect of a particular office.

In paragraph (7) the Commissioner raised the question as to whether, if the Arbitrator has power to reclassify an officer, he has power to transfer an officer from one Division to another. This matter has not actually arisen and it does not appear to be necessary at the present juncture to advise upon it.

In view of the opinions expressed above it is unnecessary to consider the question of approaching the High Court in connection with the jurisdiction of the Arbitrator.

[Vol. 18, p. 470]