The Public Service Arbitrator has dismissed an application by the Australian Medical Association (WA) Incorporated (AMA) seeking a conference in relation to back-pay of an allowance, finding that the application’s essential nature was seeking the enforcement of the Agreement and was not within the jurisdiction of an arbitration under s 44.

Background

The applicant made an application on behalf of several Senior Doctors to the respondent seeking back-pay in relation to a Private Practice Cost allowance under cl 23(7) of the relevant Industrial Agreement.

Contentions

The applicant sought a compulsory conference under s 44 of the Industrial Relations Act 1979 (WA) (‘IR Act’) and any other recommendations or orders the Commission saw fit in the interests of supporting ongoing compliance with the Industrial Agreement and expeditious resolution of any future disputes. The respondent sought dismissal of the claim and contended the Arbitrator was without jurisdiction to deal under s 44 of the IR Act because in substance, it was a claim for:

• enforcement of an industrial instrument, which is a claim within the exclusive jurisdiction of the Industrial Magistrates Court under s 83 of the IR Act; or,
• interpretation of an industrial instrument which needs to be made under s 46 of the IR Act and which would require the joinder of all named parties to the industrial instrument; or
• if neither of the above, a claim that contravenes the ‘no further claims’ clause of the relevant industrial instrument.

Findings

The Arbitrator noted that it would need to characterise the essential nature of the proceedings and whether the present application invoked judicial or arbitral powers. The Arbitrator noted that its powers under s 44 of the IR Act are arbitral, not judicial. The Arbitrator noted judicial powers involve the ascertainment, declaration and enforcement of rights and liabilities of parties as they exist or are deemed to exist when proceedings are instituted. The Arbitrator noted that arbitral powers are directed at whether rights and obligations should be created, consistent with the objects of the IR Act.

The Arbitrator found that the relief must be connected to the industrial dispute. The Arbitrator noted the reference to compliance in the applicant’s sought orders suggested invocation and determination of rights and obligations. The Arbitrator found that from the correspondence attached to the applications it was apparent that the parties were in a dispute about the construction of clause 23(7) and other industrial issues not strictly to do with rights and entitlements. The Arbitrator noted that the applicant’s representative stated the dispute concerned the rights and obligations under the agreement.

The Arbitrator found that the application’s essential nature was seeking the enforcement of the Agreement, was not within the arbitral jurisdiction and was not capable of being referred for arbitration under s 44. The Arbitrator dismissed the proceedings for want of jurisdiction.

The decision can be read here.