100424304

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

PARTIES THE AUSTRALIAN NURSING FEDERATION, INDUSTRIAL UNION OF WORKERS PERTH

APPLICANT

 -v-

 THE MINISTER FOR HEALTH & OTHERS

RESPONDENTS

CORAM COMMISSIONER S J KENNER

DATE TUESDAY, 17 AUGUST 2004

FILE NO PSAC 24 OF 2004

CITATION NO. 2004 WAIRC 12373

_______________________________________________________________________________

Catchwords  Industrial law – Application to invoke the jurisdiction of the Public Service Arbitrator – Respondents submit that Arbitrator should exercise its discretion to dismiss or refrain from further hearing the application – Arbitrator not persuaded that subject matter of application is beyond the jurisdiction of the Arbitrator – Discretion exercised to refrain from further hearing or determining the application – Order issued – Industrial Relations Act 1979 (WA) s 44, s 80C, s 80E, s 27(1)(a), meaning of “government officer”; Public Sector Management Act 1994 (WA) s 97(1)(a); Workplace Relations Act 1996 (Cth) s 152(1), s 170LZ(1), s 89A

Result Order issued

Representation

Applicant Ms B Burke and with her Ms C Nobbs

Respondents Mr R Andretich of counsel

Intervenor  Mr C Panizza on behalf of the Health Services Union of Western Australia (Union of Workers)

_______________________________________________________________________________

Reasons for Decision

1                      The substantive application in this matter is one brought by the applicant against the respondents pursuant to s 44 of the Industrial Relations Act 1979 (“the Act”) to invoke the jurisdiction of the Public Service Arbitrator (“the Arbitrator”).   The matter relates to a dispute concerning the creation by the respondents of a new non nursing management position as “Health Service Manager” within the South West area health services of the State.  The applicant seeks a number of orders from the Arbitrator, including that the restructuring process be ceased in the interim, so a number of the applicant's concerns can be dealt with including a requirement that the occupant of any new position be a person capable of registration with the Nurses Board of Western Australia.

2                      The respondents have raised as a preliminary issue, the jurisdiction of the Arbitrator to entertain the applicant's claim. The jurisdictional issues raised include:

(a)                   that nurses, in particular Senior Registered Nurses occupying positions such as Directors of Nursing, are not “government officers” as defined in s 80C(1) of the Act;

(b)                   that the subject matter of the present application is covered by a public sector standard under the Public Sector Management Act 1994 (“the PSM Act”) and therefore under s 80E(7) of the Act is beyond the Arbitrator's jurisdiction; and

(c)                   that nursing positions the subject of the present claim have their terms and conditions of employment regulated by Commonwealth industrial instruments which cover the field or are inconsistent with the exercise of the Arbitrator's jurisdiction.

3                      There was a further general submission put by the respondents, that irrespective of these jurisdictional issues, the Arbitrator should exercise its discretion pursuant to s 27(1)(a) of the Act, to either dismiss or refrain from further hearing the application by reason of the long standing existence of Commonwealth industrial coverage for the relevant employees.

4                      The Arbitrator must be satisfied that any claim before it is properly within jurisdiction, before it further endeavours to resolve a dispute by conciliation and arbitration.  Thus, the present issues have been heard by the Commission as presently constituted as a preliminary issue.

5                      At the outset of the hearing of the preliminary issues, the Health Services Union of Western Australia (Union of Workers) (“the HSU”), by application filed 29 June 2004, sought and was granted leave to intervene in these proceedings.  The HSU submissions were limited to the issue of whether or not the subject matter of the present claim was a matter involving a public sector standard under the PSM Act.  No other submissions were put in relation to other issues arising.

6                      Both the applicant and the respondents filed written outlines of submissions and developed those submissions in oral argument before the Arbitrator.  I have carefully considered those submissions.  I now turn to consider the issues of jurisdiction raised, before dealing with the question of discretion.

Jurisdiction

Government Officer

7                      For the purposes of dealing with this issue, and the others in relation to jurisdiction, I set out the relevant provisions of Part IIA, Division 2 of the Act, in relation to the jurisdiction and powers of the Arbitrator.

8                      Section 80E relevantly provides:

  “(1) Subject to Division 3 of Part II and subsections (6) and (7), an Arbitrator has exclusive jurisdiction to enquire into and deal with any industrial matter relating to a Government officer, a group of Government officers or Government officers generally.

  (2) Without limiting the generality of subsection (1) the jurisdiction conferred by that subsection includes jurisdiction to deal with — 

  (a) a claim in respect of the salary, range of salary or title allocated to the office occupied by a Government officer and, where a range of salary was allocated to the office occupied by him, in respect of the particular salary within that range of salary allocated to him; and

  (b) a claim in respect of a decision of an employer to downgrade any office that is vacant…

  (5) Nothing in subsection (1) or (2) shall affect or interfere with the exercise by an employer in relation to any Government officer, or office under his administration, of any power in relation to any matter within the jurisdiction of an Arbitrator, but any act, matter or thing done by an employer in relation to any such matter is liable to be reviewed, nullified, modified or varied by an Arbitrator in the course of the exercise by him of his jurisdiction in respect of that matter under this Division…

  (7) Notwithstanding subsections (1) and (6), an Arbitrator does not have jurisdiction to enquire into or deal with, or refer to the Commission in Court Session or the Full Bench, any matter in respect of which a procedure referred to in section 97(1)(a) of the Public Sector Management Act 1994 is, or may be, prescribed under that Act.”

9                      Furthermore, relevantly for present purposes, s 80C, dealing with the definition of “Government officer” is as follows:

 “Government officer” means — 

 (a) every public service officer;

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

 (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;

 (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 1,

  but does not include — 

 (d) any teacher;

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

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

10                   From the terms of the definition of “government officer”, relevantly (b), the requisite criteria are that the person concerned be “employed on the salaried staff of a public authority”.  No issue is taken in these proceedings that the relevant persons concerned are “employees” for the purposes of the Act, and that they are employed by a “public authority” for the purposes of this definition.  The critical issue to be determined, is whether the relevant employees are “on the salaried staff” of the relevant health services organisation.

11                   It was common ground between the parties, that the employment conditions of nurses employed by the respondents in the South West of the State, are governed by Commonwealth instruments made by the Australian Industrial Relations Commission (“the AIRC”) which include the Nurses (WA - ANF Public Sector) Award 2002 (“the Award”) and the Nurses (WA Government Health Services) Agreement 2001 (“the Agreement”).  No industrial instruments made by this Commission, appear to have any present application to the terms and conditions of employment of nurses in this State. 

12                   Clause 4 - Coverage and Parties Bound of the Award and cl 3 - Scope and Parties Bound of the Agreement, deal with the scope and application of both instruments.   They appear to generally apply to those employed nurses, members of or eligible to be members of the applicant.  Whilst I pause to observe that the terms of Appendix 1 - Wage Schedule of the Agreement, would appear to contain a somewhat different classification structure to the Award, as the parties argued the present issues on the foundation that both the Award and Agreement have application to the relevant employees I proceed on that assumption for present purposes, without any necessity to determine that issue at this stage.

13                   The relevant classifications for present purposes are those occupying positions of Senior Registered Nurse Levels 7 - 10.  Clause 10 - Wages and Allowances sets out various definitions and rates of pay for nurses covered by the Award.  The definitions of Senior Registered Nurse Levels 7 - 10 contemplate that occupants of these positions will generally work in positions including “Directors of Nursing” or “Health Service Managers”.  Clause 10.1.15 – Definitions of the Award, provides a definition of “Executive” as follows:

“Executive” means the executive management team of a hospital or health care facility, district or region.  This may include a Chief Executive Officer or General Manager, Director of Nursing, Director of Finance, Director of Medical Services and is generally made up of those senior positions directly reporting to the Chief Executive Officer.”

14                   Furthermore, cl 10.2 - Wages of the Award relevantly provides as follows:

10.2 Wages

The following will be the weekly rates of wages payable to employees covered by this award:…  (My emphasis)

15                   Thereafter, in cl’s 10.2.2, 10.2.3 and 10.2.4 there are set out various rates of pay for levels of nurses expressed as “base rates per week” and as “total rates per week”.  Separately however, are set out in cl 10.2.5 rates for Senior Registered Nurses as follows:

10.2.5 Senior Registered Nurses working for the employers in Schedule 3

16                   It seems from the terms of Schedule 3 to the Award, that it would cover the operations of the respondents. 

17                   The terms of Appendix 1 - Wages Schedule of the Agreement, has set out various classifications of nurses, excluding it seems, those applicable to Senior Registered Nurses as is expressed in the Award.  It would appear that the terms of Appendix 1 of the Agreement, contain rates expressed as “weekly wages”.  This appendix is also to be read with cl 8 - Wages of the Agreement.

18                   It is also to be noted that by the terms of cl 10.8 and cl 23 - Overtime of the Award, overtime payments appear not to be made to Senior Registered Nurses Levels 5 - 10.

19                   Whether or not a person is paid a “salary” or a “wage” is a matter of fact.  Importantly for present purposes, the meaning of “salary” under s 80C(1) of the Act as a matter of interpretation, will involve the ordinary meaning of the words used in the statute: Thacher and Sons Ltd v London Society of Compositors [1913] AC 107.  Dictionaries define “salary” in various ways as follows.  The Shorter Oxford English Dictionary defines “salary” as “1.  Fixed payment made periodically to a person as compensation for regular work; now usu. for non-manual or non-mechanical work (as op to wages).  2. Remuneration for services rendered;...” The Macquarie Dictionary defines “salary” as “A fixed periodical payment, usually monthly, paid to a person for regular work or services, especially work other than that of a manual, mechanical or menial kind.”

20                   The issue of whether a payment was a “fixed periodical payment” and therefore a salary was the subject of consideration by the Industrial Appeal Court in The Totalisator Agency Board v Edith Fisher (1997) 77 WAIG 1889.  In that case, after considering various dictionary definitions and judicial pronouncements on the meaning of “salary”, “wage” and “income”, the Court came to the conclusion that a person receiving payment by way of a commission payment, was not employed “on the salaried staff of a public authority” for the purposes of s 80C(1) of the Act.  In that case, the payment lacked the essential ingredient of a fixed periodical or regular payment. (See also: Commonwealth Commissioner of Taxation v J Walter Thompson (Australia) Pty Ltd (1944) 69 CLR 227; Mutual Acceptance Co Ltd v The Commonwealth Commissioner of Taxation (1944) 69 CLR 389; Re Shine; Ex parte Shine [ 1892] 1 QB 522; Commissioner for Government Transport v Kesby (1972) 127 CLR 375; Commissioner of Superannuation v Carpenter ( 1983) 77 FLR 224).

21                   Whilst the submissions of the respondents may have an initial attraction on this issue, a closer examination of the Award in my opinion leads to the conclusion that Senior Registered Nurses are “salaried employees”. Whilst the introductory paragraph of cl 10.2 of the Award refers to “weekly rates of wages” payable to employees, it seems plain that by cl 10.2.5, the remuneration of Senior Registered Nurses is dealt with in a different manner and is prescribed as a “total rate per annum” and is not expressed as a weekly rate of wage.  Salaries are then set out in the clause.  Moreover, from the definition of “Executive” in the Award, set out above, it is contemplated that positions including Director of Nursing, are those regarded as a part of “the executive management team” of a hospital or health care facility, district or region.  The various positions described in that definition, as set out above, are broadly described as being “senior positions directly reporting to the Chief Executive Officer.” 

22                   Furthermore, as I have already observed, from a consideration of other provisions of the Award, in particular the apparent non-application of overtime to these positions, interpreting the Award provisions as a whole and in context, I am of the opinion that Senior Registered Nurses, including those who occupy Levels 7 - 10 within that grouping, are paid a “salary” and are “employed on the salaried staff of a public authority” for the purposes of s 80C(1) of the Act. 

23                   Whilst I do not place much weight upon it, annexed to the written submissions of the applicant, was a document as Attachment 1, being an “Operational Circular” from the Department of Health. This sets out new rates of “salary” for nurses, including Senior Registered Nurses, on and from 1 May 2004.  Whilst I say nothing about classifications other than those with which the Arbitrator is presently concerned, in my opinion, taking the industrial instruments and to a lesser extent the actual method of payment adopted by the respondent, I reject the respondents’ submissions that the relevant classifications for present purposes are not within the jurisdiction of the Arbitrator on this basis.

Public Sector Standard

24                   This issue turns on whether, by reason of s 80E(7) of the Act, the jurisdiction of the Arbitrator is ousted because of the existence of a public sector standard concerning recruitment, selection and appointment in the public sector.  A standard dealing with this issue was made pursuant to ss 21(1) and 21(2) of the PSM Act and was published in the Western Australian Government Gazette 20 April 2001 No 83 at 2189.  This standard provides as follows:

“RECRUITMENT, SELECTION AND APPOINTMENT STANDARD

 Outcome

 The most suitable and available people are selected and appointed.

 The Standard

 The minimum standard of merit, equity and probity is met for recruitment, selection and appointment if:

• A proper assessment matches a candidate’s skills, knowledge and abilities with the work-related requirements of the job and the outcomes sought by the public sector body, which may include diversity.
• The process is open, competitive and free of bias, unlawful discrimination, nepotism or patronage.
• Decisions are transparent and capable of review.”

25                   The respondents submitted that the matter in issue in these proceedings, involving as it does relevant criteria for appointment to the new positions proposed, constitutes a matter dealt with by the standard and therefore, by s 80E(7) of the Act, the Arbitrator has no jurisdiction.

26                   Whether s 80E(7) operates to oust the jurisdiction of an Arbitrator, by reason of the existence of a relevant public sector standard, does not, of itself, depend upon the mere existence of such a standard.  It is clear that s 80E(7) speaks of the existence or possible existence, of a “procedure “ prescribed by s 97(1)(a) of the PSM Act.  Relevantly, s 97(1) of the PSM Act provides:

 “97. Functions of Commissioner concerning relief in respect of breach of public sector standards

  (1) The functions of the Commissioner under this Part are — 

  (a) to make recommendations to the Minister on the making, amendment or repeal of regulations prescribing procedures, whether by way of appeal, review, conciliation, arbitration, mediation or otherwise, for employees and other persons to obtain relief in respect of the breaching of public sector standards;”

27                   It seems that the concern of s 97(1)(a) of the PSM Act, is not with the mere existence of a public sector standard, but whether there is an allegation of a breach of a public sector standard, that may invoke a procedure of the kind prescribed by s 97(1)(a) of the PSM Act: The Commissioner of Police v The Civil Service Association of Western Australia Incorporated (2002) 82 WAIG 207; Managing Director of the South Metropolitan College of TAFE v The Civil Service Association of Western Australia Incorporated (1999) 80 WAIG 7.

28                   I am not persuaded that the subject matter of the present claim is one that involves an allegation of a breach of the relevant public sector standard.  In my opinion, the substance of the claim made by the applicant goes to issues preparatory to the recruitment, selection and appointment of any employee to occupy the new post proposed by the respondents.  Viewed in that light, the respondents’ objection on this basis is premature, as no allegation of a breach of the standard arises in my view in the matter before the Arbitrator, so as to oust the Arbitrator's jurisdiction.  I am not therefore persuaded by the submissions of the respondents on this issue.

Commonwealth Industrial Instruments

29                   This limb of the jurisdictional challenge put by the respondents, whilst not directly at least somewhat obliquely, contends that by reason of the occupation of the field of nursing employment in this State, by the Award and Agreement, then there is no room for the Arbitrator to deal with the present issue.  Counsel for the respondents also submitted that by s 109 of the Commonwealth Constitution there may be either a direct or indirect consistency between the Award and Agreement and any order that might be made by the Arbitrator arising from these proceedings.  However, the thrust of the submission was that the relief sought by the applicant was one properly within the province of the AIRC as being covered by these Commonwealth instruments.  There was also reference to ss 152(1) and 170 LZ(1) of the Workplace Relations Act 1996 (Cth) (“WRA”) to the effect that even if an order was to be made by the Arbitrator, then those statutory provisions would have effect and override any order made. 

30                   An inconsistency for the purposes of s 109 of the Commonwealth Constitution only arises in circumstances where there is either a direct inconsistency in the  sense that there is a direct collision between the State and Commonwealth law, or, there is an indirect inconsistency in the sense that the Commonwealth law is intended to deal exclusively and exhaustively with the particular subject matter with which the State law purports to deal: City of Mandurah v Hull (2000) AILR 13-205; BGC Contracting Pty Ltd v The Construction Forestry Mining and Energy Union of Workers [2004] FCA 98 and the cases cited therein.  Furthermore, simply because both Commonwealth and State laws deal with the same subject matter does not make them inconsistent: Shuttleton v Cain (1997) 77 WAIG 1073.  In each case, there needs to be a close examination of the Commonwealth statute or in this case, Awards and industrial agreements made there under, to determine whether the Commonwealth law truly intends to exhaustively and exclusively deal with the subject matter in question.  As was observed by Anderson J (as he then was) in Shuttleton at 1075 “there are many cases that show that State laws can quite closely co-exist with the Commonwealth Act in their application to persons bound by the latter or by awards made under it.”

31                   Furthermore, in my view, by reason of s 89A of the WRA, limiting matters the AIRC may include in awards, there may now be less room for arguments that an award made under the WRA truly and comprehensively constitutes an exhaustive statement in so far as terms and conditions of employment are concerned.

32                   Importantly for present purposes, it seems to be common ground, that the proposed position of “Health Services Manager”, as an administrative position, is not one caught by either the Award or Agreement.  Clearly however, the positions in respect of which it is said by the applicant that the new position may replace that is, Directors of Nursing and the like, are covered.  For reasons which I set out below, it is not necessary for me to conclusively determine this issue.  However, I am of the provisional view that any inconsistency arguments either direct or indirect, may encounter some difficulties.

33                   However, whilst not concluding that it gives rise to an inconsistency in the constitutional sense, the relevant provisions of the Award and Agreement in relation to resolution of disputes are important.  Clause 31 - Dispute Resolution Procedure provides as follows:

“31. DISPUTE RESOLUTION PROCEDURE

In the event of a dispute arising in the workplace the procedure to resolve the matter will be as follows:

31.1 The employee and their supervisor will meet and confer on the matter; and

31.2 If the matter is not resolved at such a meeting, the parties shall arrange for further discussions between the employee and his or her nominated representative, if any, and more senior levels of management.

31.3 If the matter is still not resolved a discussion shall be held between representatives of the employer and the Federation or other employee representative.

31.4 If the matter is still not resolved it may be referred to the Commission.

31.5 While the parties attempt to resolve the matter work will continue as normal unless an employee has a reasonable concern about an imminent risk to his or her health or safety.

31.6 To assist in the resolution of disputes, an employee who is required to attend industrial proceedings may be granted leave of absence without loss of pay to attend AIRC proceedings.  The granting of leave will be subject to the operating requirements of the employer.

31.7 The employer may grant paid leave during ordinary working hours to an employee representative to attend a short course conducted by a recognised training provider which is specifically directed towards effective dispute resolution.  The granting of leave will be subject to the operating requirements of the employer.

31.8 The specific training course will be agreed between the employer and the individual employee.”

34                   Clause 19 - Dispute Settlement Procedure of the Agreement is in the following terms:

“CLAUSE 19 - DISPUTE SETTLEMENT PROCEDURE

19.1   The following procedure for settling disputes and grievances will be followed by the parties.

19.1.1 The employee(s) concerned shall discuss the matter with the immediate supervisor.  If the matter cannot be resolved at this level the supervisor shall, within two working- days (excluding weekends and public holidays) refer the matter in writing to a more senior officer nominated by the employer and the employee (s) shall be advised accordingly in writing.

19.1.2 The senior officer shall, if able, answer the matter raised within five days of it being referred and if the senior officer is not so able, refer the matter to the employer for his/her attention, and the employees shall be advised accordingly.

19.1.3 If the matter has been referred in accordance with the above the employee(s) or the shop steward shall notify the ANF, to enable the opportunity of discussing the matter with the employer.

19.1.4 The employer shall as soon as practicable after considering the matter before it, advise the employee(s) or where necessary the union of its decision.  Provided that such advice shall be given within seven working days of the matter being referred to the employer.

19.1.5 Should the matter remain in dispute after the above processes have been exhausted either party may refer the matter to the AIRC for conciliation, and if necessary arbitration.  If arbitration is required to resolve the dispute, the decision of the Commission shall be final and binding on all parties.

19.1.6 The status quo, (ie the condition applying prior to the issue arising) will remain until the processes specified in accordance with the procedure outlined above is completed.

19.1.7 Nothing in this procedure shall preclude the parties reaching agreement to shorten or extend the period specified above.”

35                   It seems reasonably clear from these provisions that the parties to the Award and Agreement, who are the parties before the Arbitrator in these proceedings, have agreed on a procedure for settling disputes and grievances in the terms as set out above. That process contemplates that there be discussions initially between those directly concerned, and failing resolution of any issue, the matter may then be referred to the AIRC.  Importantly for present purposes, I simply note the terms of cl 19.1.6 of the Agreement in relation to the “status quo”.

36                   In my opinion, the parties being bound by a procedure by which disputes are to be resolved in the workplace, the applicant must invoke that procedure in an endeavour to resolve the present issue with the respondents, in accordance with the terms of the dispute settling procedures contained in the Award and Agreement.  I do not conclude that the existence of those provisions constitutes a jurisdictional bar to the Arbitrator proceeding to hear and determine the present claim, at least at this stage of the matter.  It is plain however in my opinion that the parties by the terms of the Award and Agreement are committed to dealing with the resolution of disputes in this fashion, and they should be required to do so on this occasion.

37                   The applicant argued that the decision of the High Court in Re Australian Education Union and Others; Ex parte Victoria (1995) 58 IR 431, and whether the present application involves an impairment of the administrative services of a State, may mean that the present dispute is beyond the jurisdiction of the AIRC.  I express no view on that matter, it being one for the AIRC if it arises.  However, the possibility of that issue constituting a jurisdictional impediment in the AIRC will be contemplated in the order I propose to make.

Discretion

38                   Presently, I am not persuaded that the subject matter of the application claim is beyond the jurisdiction of the Arbitrator.  However, in the circumstances, as an exercise of a discretion, I determine that the Arbitrator, for reasons set out above, refrain from further hearing or determining the present application, subject to any further order of the Arbitrator.  In the event that the applicant encounters difficulties in circumstances contemplated in Re AEU, then an application can be made to revoke the order. 

39                   I order accordingly.