APPEAL AGAINST THE DECISION OF EMPLOYER DATED 28 MAY 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00054

DELIVERED : WEDNESDAY, 9 February 2022

FILE NO. : PSAB 27 OF 2021

Appellant

AND

North Metropolitan Health Services

Respondent

CatchWords : Industrial Law (WA) – Public Service Appeal Board – Jurisdiction –Whether or not the appellant was a government officer – Appellant found not to be a member of the respondent’s salaried staff – Appeal dismissed

Legislation : Industrial Relations Act 1979 (WA)

Public Sector Management Act 1994 (WA)

Health Service Act 2016 (WA)

WA Health System - United Workers Union (WA) - Hospital Support Workers Industrial Agreement 2020 

Result : Appeal dismissed

Representation:

Appellant : Mr T Quach on his own behalf

Respondent : Ms M Di Lello

Case(s) referred to in reasons:

Fenton v WA Country Health Service - SW [2021] WAIRC 00214; (2021) 101 WAIG 585

McGinty v Department of Corrective Services [2012] WAIRC 00054; (2012) 92 WAIG 190

Reasons for Decision

1         These are the unanimous reasons of the Public Service Appeal Board (Board).

2         The appellant, Mr Tran De Quach, lodged a Form 8B ‑ Notice of Appeal on 15 October 2021 against his employer’s decision to take disciplinary action in the form of a reprimand and disciplinary transfer. The appeal purports to be made under s 80I(1)(c) of the Industrial Relations Act 1979 (WA) (IR Act) and s 172 of the Health Services Act 2016 (WA) (Health Services Act). The respondent, North Metropolitan Health Services (Health Service), seeks the dismissal of the appeal on the basis that Mr Quach does not have standing to appeal under s 172 of the Health Services Act as he is not a government officer.

3         The Board is required to decide whether Mr Quach is a ‘government officer’ for the purpose of s 80I(1)(c) of the IR Act. The answer turns on whether he is a public service officer or on the Health Service’s salaried staff. If he is not, the Board has no jurisdiction to deal with or determine his appeal.

4         The parties agreed that the issue of Mr Quach’s standing be determined on the papers as a preliminary issue.

Background: the disciplinary action

5         The disciplinary action against which Mr Quach has appealed is a decision of 20 September 2021 by which Mr Quach was issued a formal reprimand and transferred from the position of Food Service Attendant at Graylands Hospital to the position of Cleaner ‘initially located at Graylands Hospital’. Mr Quach does not appeal the findings in relation to his conduct. Rather he appeals only against the sanction imposed.

6         On 2 October 2020, the Health Service gave Mr Quach notice that:

(a) an investigation into a suspected breach of discipline had concluded;

(b) the allegations were found substantiated;

(c) the proposed disciplinary action would be a transfer to Sir Charles Gairdner Hospital in the catering department; and

(d) Mr Quach had an opportunity to respond to the proposed disciplinary action before a final decision is made.

7         Mr Quach accepted the proposed disciplinary action and elected not to respond to the letter of 2 October 2020.

8         Subsequently, on 11 May 2021, the Health Service advised Mr Quach that the disciplinary action proposed on 2 October 2020 was rescinded. The Health Service instead proposed disciplinary action in the form of a reprimand and transfer to a Cleaner position at Graylands Hospital. Mr Quach was given a further opportunity to respond before a final decision was made. This was the form of disciplinary action ultimately imposed.

9         While Mr Quach accepted the proposed disciplinary action involving a transfer to Sir Charles Gardiner Hospital in catering, he is aggrieved by the ultimate decision to transfer him to a Cleaner position at Graylands Hospital. At this preliminary stage, Mr Quach’s reasons for being aggrieved by this sanction were not explored. The transfer would not involve a change to Mr Quach’s classification. However, we note that he has over 40 years of experience working as a Food Service Attendant in the public hospital system. Since 2018 he has worked in this position at Graylands Hospital. It may be inferred that remaining at the same hospital in a different position is perceived by him to be associated with a degree of public humiliation that would not come with a transfer to a different hospital. Another inference that might be made is that he is comfortable and familiar with catering work, and cleaning will involve him having to learn new skills and work methods, so that he will feel less productive. Or he may be disappointed by the prospect of no longer having interactions with hospital patients as a Food Service Attendant.

10      Similarly, the reasons for the Health Service’s changed position were not explored at this stage.

11      Neither parties’ reasons concerning the appropriateness of the disciplinary sanction are relevant to the determination of the question of Mr Quach’s standing.

Mr Quach’s submissions

12      Mr Quach filed several separate written submissions, including reply submissions received on 7 February 2022, that expressed his disappointment in how he had been treated and what he thought the Health Service ought to have done or not done. His submissions did not address the issue for determination, that is, whether he is a government officer, except that Mr Quach simply asserted that he has been a public servant for 41 years. He relies upon his payslips as confirming that he is a full‑time salaried employee, as the payslips refer to ‘salary’.

The Health Service’s submissions

13      The Health Service submits that Mr Quach is not a public service officer for the purpose of the definition of ‘government officer’, nor is he employed on the salaried staff of the Health Service. Rather, the Health Service submits that he is remunerated by way of wages pursuant to the applicable industrial instrument, namely the WA Health System ‑ United Workers Union (WA) ‑ Hospital Support Workers Industrial Agreement 2020 (Industrial Agreement). It relies upon the terms of cl 19 of the Industrial Agreement, which refers to ‘wages’, submitting that this term accurately reflects that Food Service Attendants are remunerated for time worked, as opposed to a fixed periodical salary. It points to other provisions of the Industrial Agreement supporting its view that the remuneration Mr Quach was paid was wages as opposed to salary.

14      The Health Service also points out that Mr Quach’s duties are not for administrative, managerial or technical services, so as to mean that his role could be described as being within the administrative or professional ranks of the public service.

Evidence

15      The Board had before it and considered:

(a) the Job Description Form for the position of Food Service Attendant, Hospital Support Workers Agreement Level 1/2, Position Number 601441 (JDF);

(b) Mr Quach’s payroll summary for the period ended 28 April 2019;

(c) Mr Quach’s position history;

(d) a payslip for the period ended 7 November 2021;

(e) a payslip for the period ended 21 November 2021; and

(f) a payslip for the period ended 5 December 2021.

16      According to the JDF, Mr Quach’s prime function/key responsibilities as a Food Service Attendant involved:

(a) the provision of assistance in the preparation, plating and delivery of meals; and

(b) maintaining a clean and hygienic work environment in accordance with relevant Food Safety Standards.

He reports to a HSO Level G5 Catering Coordinator. He has no direct reports.

17      The JDF provides a summary of the position’s duties as follows:

1. General

1.1 Complies with HACCP guidelines for the safe preparation, distribution and storage of food.

1.2 Assists the Leading Hand in achieving daily objectives.

1.3 Actively participates in HACCP and quality monitoring and recording systems.

1.4 Participates in food and beverage production and distribution to patients as required.

1.5 Completes kitchen cleaning according to the relevant cleaning schedule.

1.6 Contributes to the delivery of customer focused service.

1.7 Works cooperatively and collaboratively with other members of the Patient support Services Team.

1.8 Contributes to the cost efficient use of hospital resources.

1.9 Liaise with Dietetic, Speech Pathology and other departments as required.

2. NMHS Governance, Safety and Quality Requirements

2.1 Participates in the maintenance of a safe work environment

2.2 Participates in an annual performance development review.

2.3 Supports the delivery of safe patient care and the consumers’ experience including participation in continuous quality improvement activities in accordance with the requirements of the National Safety and Quality Health Service Standards and other recognised health standards.

2.4 Completes mandatory training (including safety and quality training) as relevant to role.

2.5 Performs duties in accordance with Government, WA Health, North Metropolitan Health Service and Departmental / Program specific policies and procedures.

2.6 Abides by the WA Health Code of Conduct, Occupational Safety and Health legislation, the Disability Services Act and the Equal Opportunity Act.

3. Undertakes other duties as directed.

18      The payslips all contain a line described as ‘Full Time Salary’, which, as at 7 November 2021, had adjacent to it the figure $56,102.57. This figure is not one which appears in the Industrial Agreement. Rather, it appears to be derived by multiplying the hourly rate specified in the payslips under the heading ‘Taxed Earnings’ for full‑time hours per week worked over a year. The specified hourly rate, $28.30, is the weekly base rate of pay for a Level 1/2 3rd year employee set out in cl 19.1 of the Industrial Agreement divided by 38 hours.

19      The payslips otherwise demonstrate that Mr Quach’s remuneration was calculated by reference to an hourly rate of pay for base hours, allowances for working Saturday, Sunday and public holidays and time off in lieu.

The Board’s jurisdiction

20      The Board’s jurisdiction is set out in s 80I of the IR Act. Relevantly, the Board has jurisdiction to review a decision or finding arising out of a disciplinary process under s 172 of the Health Services Act on appeal by a ‘government officer’. Section 80C(1) of the IR Act defines government officer to mean:

…

government officer means —

(a) every public service officer; and

(aa) each member of the Governor’s Establishment within the meaning of the Governor’s Establishment Act 1992; and

(ab) each member of a department of the staff of Parliament referred to in, and each electorate officer within the meaning of, the Parliamentary and Electorate Staff (Employment) Act 1992; and

(b) every other person employed on the salaried staff of a public authority; and

(c) any person not referred to in paragraph (a) or (b) who would have been a government officer within the meaning of section 96 of this Act as enacted before the coming into operation of section 58 of the Acts Amendment and Repeal (Industrial Relations) Act (No. 2) 1984,

but does not include —

(d) any teacher; or

(e) any railway officer as defined in section 80M; or

(f) any member of the academic staff of a post‑secondary education institution;

…

21      There is no suggestion that Mr Quach falls within sub‑clauses (aa), (ab) or (c) of the definition. The relevant or possibly applicable sub‑clauses are (a) ‘public service officer’, and (b) ‘employed on the salaried staff of a public authority’.

Is Mr Quach a public service officer?

22      Public service officer is defined in s 7 of the IR Act to mean ‘a public service officer within the meaning of the Public Sector Management Act 1994;’.

23      The Public Sector Management Act 1994 (WA) (PSMA) defines in s 3, public service officer to mean ‘an executive officer, permanent officer or term officer employed in the public service under Part 3;’.

24      Public service is defined in Part 3, s 34 of the PSMA as constituted by:

(a) departments; and

(b) SES organisations, insofar as any posts in them, or persons employed in them, or both, belong to the Senior Executive Service; and

(c) persons employed under this Part, whether in departments or in the Senior Executive Service in SES organisations or otherwise.

25      The Health Service is a health service provider established under s 32 of the Health Services Act. It is neither a department, nor an SES organisation as defined in the PSMA.

26      Mr Quach’s appointment and employment is pursuant to Part 9, s 140 of the Health Services Act. Under Part 9, s 104(3) of the Health Services Act, Part 3 of the PSMA does not apply to employees of health service providers. That section provides:

The PSM Act Part 3 does not apply to employees.

27      Mr Quach is not employed under Part 3 of the PSMA. As he is not employed under Part 3, and the Health Service is neither a department, nor an SES Organisation, he is not a public service officer as defined. He is therefore not a government officer as defined within s 80C(1)(a) of the IR Act.

Is Mr Quach on the Health Service’s salaried staff?

28      There is no dispute, and we find that the Health Service is a public authority for the purpose of the sub‑clause (b) definition of government officer.

29      The Board recently considered the meaning of ‘salaried staff’ in the s 80C(1)(a) definition in Fenton v WA Country Health Service ‑ SW [2021] WAIRC 00214; (2021) 101 WAIG 585. After summarising a series of decisions by the Industrial Appeal Court, the Board and the Commission concerning the meaning of salaried staff, the Board adopted and applied the approach of the learned Commissioner Kenner (as he was then) in McGinty v Department of Corrective Services [2012] WAIRC 00054; (2012) 92 WAIG 190 at [10]‑[11], concluding at [50], that by referring to salaried staff the legislature intended to draw a distinction between those employees paid on a salaried basis and those who are paid wages. The dichotomy focuses on the frequency and structure of fixed periodic payments as well as the services for which the payment is made.

30      Whether a person is on salaried staff is a question of fact. Importantly, that remuneration is described as ‘salary’ is not conclusive. Thus in McGinty, a vocational support officer was determined not to be employed on the salaried staff of the relevant agency, notwithstanding the fact that the applicable industrial instrument referred to remuneration arrangements using the term ‘annualised salary’. Similarly, in Fenton, Ms Fenton was found not to be a government officer or on the salaried staff of her employer, notwithstanding the fact that her contract of employment referred to the term ‘salary’ and the industrial instrument also used the term ‘salary’ in various clause headings.

31      The Industrial Agreement that applies to Mr Quach uses the terms ‘wages’ and ‘salary’ interchangeably. For example, the word ‘salary’ is used in clauses dealing with underpayments, salary packaging, and leave. Where the word ‘salary’ is used, it is intermittent and interchanged with other terms like ‘ordinary rates of pay’ within the same clause. Notably, none of the references to ‘salary’ are contained in clauses that determine rates of remuneration. Rather, the word is used in contexts generally dealing with the methods by which remuneration and other entitlements are satisfied.

32      On the other hand, the Industrial Agreement’s clauses dealing substantively with rates of remuneration refer to ‘wages’. In particular, cl 19 is headed ‘Classification and Wage Rates’. Significantly, it provides for payment of a ‘weekly base rate of pay’ for all 13 classifications covered by the Industrial Agreement. Clause 19.4 provides that wages are paid fortnightly, and overtime and penalty rates, where applicable, will be paid at least monthly.

33      Under the Industrial Agreement, the weekly base rate of pay is payable for full‑time hours, being an average of 38 hours per week: cl 11. Clause 13 ‘Hours of Work’ dictates the work cycles, maximum hours and spread of hours over which the ordinary hours can be worked. Hours worked outside of ordinary hours attract overtime rates: cl 16. Further, the Industrial Agreement specifies rates of pay other than the weekly base rate of pay for shift work: cl 17, and weekend work: cl 18.

34      In addition to the weekly base rate of pay, the Industrial Agreement provides for various miscellaneous allowances in cl 24.

35      Mr Quach’s remuneration is determined by the terms of the Industrial Agreement. His payslips do not determine his remuneration entitlements but reflect them. Clearly, Mr Quach’s earnings were both regular and periodic as well as being determined, in part, by reference to time. However, his earnings were not entirely fixed in the necessary sense, because overtime, penalties and other allowances were payable depending on what work was performed by him and when it was performed. The nature and structure of his remuneration arrangements indicate that his remuneration is properly categorised as wages within the wages/salary binary.

36      This categorisation is consistent with the nature of the services Mr Quach performs and, indeed, the nature of services involved in the vast majority of the classifications covered by the Industrial Agreement. It is worth commenting on the nature of the positions described in cl 19 of the Industrial Agreement. There are approximately 100 Hospital Worker jobs listed. We mention a few: Chef, Housekeeper, Gardner, Cook, Orderly, Storeperson, Bus Driver, Cleaner, Patient Care Assistant, and Laundry Worker. While the Industrial Agreement’s occupational coverage is broad, this list nevertheless gives a fair sense that the coverage is of manual and operational occupations.

37      As a Food Service Attendant, and indeed as a Cleaner, the nature of the services which Mr Quach provides and for which he is remunerated are manual services. His duties do not involve organisational management or duties of an administrative nature. He does not manage others in the workplace. It cannot be said his earnings were for administrative, managerial or technical services, nor could his role be described as being in the administrative or professional ranks of the public service.

38      Having regard both to the structure of Mr Quach’s remuneration and the services he provides in respect of which remuneration is paid, we do not consider he was a member of the Health Service’s salaried staff.

39      As Mr Quach is not employed on the Health Service’s salaried staff to bring him within the definition of a government officer within s 80C(1) of the IR Act, he does not have standing to bring the appeal, and the appeal is beyond the Board’s jurisdiction.