APPEAL AGAINST DECISION TO TAKE DISCIPLINARY ACTION DATED 19 FEBRUARY 2021

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2021 WAIRC 00214

DELIVERED : THURSDAY, 15 July 2021

FILE NO. : PSAB 10 OF 2021

Appellant

AND

WA Country Health Service - SW

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 : Health Services Act 2016 (WA)

Industrial Relations Act 1979 (WA)

Nurses (Bunbury Health Service Board of Management) Enterprise Agreement 1999

WA Health System – Australian Nursing Federation – Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses – Industrial Agreement 2020 (WA)

WA Health System - Australian Nursing Federation - Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses - Industrial Agreement 2018 (WA) 

Result : Appeal dismissed

Representation:

Appellant : Ms K Fenton, on her own behalf

Respondent : Mr P Budd

Case(s) referred to in reasons:

Capewell v Department of Corrective Services [2013] WAIRComm 390; (2013) 93 WAIG 1454

McGinty v Department of Corrective Services ABN 25103389163 [2012] WAIRComm 54; (2012) 92 WAIG 190

Mirosevich v East Metropolitan Health Service [2018] WAIRComm 220; (2018) 98 WAIG 176

Re Shine; Ex parte Shine [1892] 1 QB 522

The Australian Nursing Federation, Industrial Union of Workers Perth v The Minister for Health & Others [2004] WAIRC 12373; (2004) 84 WAIG 2867

The Totalisator Agency Board v Edith Fisher (1997) 77 WAIG 1889

Wilkes v Metropolitan Health Service - Royal Perth Hospital (formally EMHS now SMAHS) [2013] WAIRComm 00936; (2013) 93 WAIG 1739

Reasons for Decision

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

Introduction

2         The Public Service Appeal Board is required to decide whether the appellant, Ms Kathleen Fenton, is on the respondent’s salaried staff. If she is not, then she is not a “government officer” and accordingly the Board has no jurisdiction to deal with or determine her appeal.

3         Ms Fenton is a Registered Nurse employed by WA Country Health Service (WACHS). She has worked for WACHS for over 20 years, and has been nursing in Australia and overseas for 53 years. Her current position is a Level 2 Community Health Nurse in a public high school.

4         There were two occasions on or about 6 November 2019 when students and staff members approached Ms Fenton for nursing assistance. Ms Fenton’s responses to these presentations were the subject of a suspected breach of discipline process commenced in December 2019. That process involved two allegations, the details of which are unnecessary to set out for present purposes.

5         The course of the initial investigation was procedurally flawed and accordingly WACHS did not act on the findings of the initial investigation, and withdrew those findings.

6         On 20 July 2020 WACHS re-commenced the disciplinary management process into both the original allegations.

7         On 19 February 2021 WACHS notified Ms Fenton that the investigation had resulted in a finding that the first of the two allegations was not substantiated. However, in relation to the second allegation, WACHS found a breach of discipline had occurred, and determined to impose a sanction for the breach involving a reprimand and improvement action in the form of training and development.

8         Ms Fenton has complied with the improvement action but disputes the finding of a breach of discipline. On 12 March 2021 she commenced an appeal under s 172 of the Health Services Act 2016 (WA) against the decision of 19 February 2021.

9         WACHS has raised a jurisdictional objection to the Board hearing and determining Ms Fenton’s appeal. It says that while Ms Fenton is a government employee, she is not a “government officer” for the purpose of s 80C(1) of the Industrial Relations Act 1979 (WA) (IR Act). Specifically, WACHS contends that while Ms Fenton is employed by a public authority, being WACHS, she is not “employed on [its] salaried staff”.

Legislative Provisions

10      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 substandard performance or disciplinary process under s 172 of the Health Services Act 2016 (WA) on appeal by a “government officer:” s 80I(1)(c).

11      Section 80C(1) of the IR Act relevantly defines “government officer” to mean:

80C. Terms used and construction and application of Division

(1) For the purposes of this Division, unless the contrary intention appears —

…

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;

[emphasis added].

Evidence

12      The Board invited the parties to provide written evidence in writing of Ms Fenton’s engagement, classification, duties, pay arrangements and any other matters relevant to the determination of whether she is a “government officer”. Written submissions on the issue were also invited. The Board determined the issue on the papers without objection from either party to that course.

13      The evidence considered by the Board included:

(a) Pay advices dated 24 November 2019, 21 June 2020 and 6 June 2021 supplied by Ms Fenton and WACHS;

(b) A casual contract of employment dated 17 March 2000 supplied by Ms Fenton;

(c) Contract of Employment dated 27 July 2001 supplied by both parties;

(d) A Statement of Service dated 18 May 2020 supplied by Ms Fenton; and

(e) A Job Description Form (JDF) for Clinical Nurse RN Level 2 dated 21 November 2018 supplied by Ms Fenton.

14      The JDF describes the duties of Ms Fenton’s role as including, amongst other things:

Contributing to the establishment of systems (policies, protocols, training and advocacy) for the school's response to:

• Health detection
• Illness and disease
• 1st Aid and health emergencies
• mental, emotional and social health issues
• care planning for students with special needs
• case management
• administration of medications

Providing care, liaison, referral and advocacy for individuals and families within the school community in relation to mental, social and physical health issues.

Promoting health and maintenance of Well Being in the Community by:

• Applying public health policies in the practice of Community Health nursing;
• Preparing program plans within a community setting in collaboration with stakeholders;
• Evaluating Health Promotion activities and making recommendations
• Integrating Health promotion into all aspects of Community Health nursing practice including universal and targeted health promotion and prevention programs –

1. Co-ordinates and assists with school-based immunisation programs and monitors student MMR immunisation status

2. Co-ordinates early detection programs as per NHM&RC guideline.

15      The JDF specifies that eligibility for registration as a Registered Nurse is an essential criteria for appointment.

16      Ms Fenton was initially employed as a casual employee between March and July 2000. The casual contract of employment refers to remuneration as a “commencing salary” plus 20% loading.

17      The contract of employment that was in effect at the time of the events relevant to these proceedings appears to be the contract dated 27 July 2001. It states:

PERMANENT CONTRACT OF EMPLOYMENT

(Supersedes contract dated 26 July 2001)

The Board of Management of the Bunbury Health Service (the employer) and Kathleen FENTON (the employee), hereby enter into this contract of fixed term employment, during which the employee will be employed as a Community Nurse - School Health, in accordance with the provisions of the Nurses (Bunbury - Health Service Board of Management) Enterprise Agreement 1999.

The salary range is $39,986.46 to $42,771.50 per annum (pro-rata). Your commencing salary will be the Level 2 third year rate $41,843.15 (pro-rata). You are due to increment to a 4 on the 17 July 2002 in accordance with Clause 7.2 (Incremental Progression).

This permanent contract of employment will be on the basis of 40 hours per fortnight commencing on 16th July 2001. The school health clinic commencing on is College Row, although you may be required to work in any area within Primary Health Services, commensurate with your skill level.

During the term of this contract the employee will perform the various functions and/or duties of this category of employee in accordance with the Award provisions. In addition, you shall comply with all BHS policies and standards which apply to your conduct and the performance of your duties.

18      Ms Fenton’s pay slips refer to what is described as “Full time salary” for her position. The pay details then set out, under the headings “earnings” the “base hours,” an hourly rate derived from the “Full time salary” and the total amount paid being the base hours multiplied by the hourly rate. Other amounts paid and shown on the pay slips include a laundry allowance, uniform allowance and reimbursement for “WWC licence” (working with children).

19      Ms Fenton’s 27 July 2001 contract of employment refers to the Nurses (Bunbury Health Service Board of Management) Enterprise Agreement 1999. In her submissions, Ms Fenton says that this is the industrial instrument that applied to her employment. WACHS refers to the current agreement, being the WA Health System – Australian Nursing Federation –Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses – Industrial Agreement 2020 and its predecessors. At the time of the events relevant to these proceedings from November 2019 to March 2021, the industrial agreement that was in force and which applied to Ms Fenton’s employment was the WA Health System - Australian Nursing Federation - Registered Nurses, Midwives, Enrolled (Mental Health) and Enrolled (Mothercraft) Nurses - Industrial Agreement 2018, AG 7 of 2019 registered on 10 April 2019 (2018 Agreement).

20      Under the 2018 Agreement, crudely summarising the relevant parts of the lengthy and complex instrument:

• Part 4 is headed “Salaries and Allowances”.
• Clause 12 “Contract of Employment” provides at cl 12.3 “In lieu of giving the required notice, the Employer may pay to the employee the equivalent number of weeks wages as to the number of weeks notice required by subclause (2) of this clause at the full rate of pay for the hours the employee would have worked had the employment continued.”
• Clause 16 is headed “Salaries and Classifications”.
• Clause 16.1 commences with the words “The ordinary rates of pay during the life of this Agreement are:”. It is followed by a table containing five classifications, and 33 pay points within those five classifications. Each pay point is associated with an existing and incremental “rates” expressed as an annual rate. The classifications and pay points are Registered Nurse Levels 1.1 to 1.8, Registered Nurse Levels 2.1 to 2.4, Senior Registered Nurse Levels 1 through 10, Enrolled Mental Health Nurse points 1 to 6 and Enrolled Mothercraft Nurse years 1 to 5.
• Clause 16.6 contains definitions for each classification. Relevantly, at cl 16.6(b), Registered Nurse Level 2 is defined:

(6) Definitions

…

(b) Registered Nurse Level 2 (RN-2)

Means a RN who is appointed at this level and is required to perform in the stream of clinical, management, research, or staff development duties delegated by a SRN that will include elements of, but not be confined to, the following:

(i) delivering direct and comprehensive nursing care and individual case management to a specific group of patients or clients in a particular area of nursing practice within the practice setting;

(ii) providing support, direction, orientation and education;

(iii) being responsible for planning and coordinating services relating to a particular group of clients, patients or staff in the practice setting;

(iv) acting as a role model in the provision of holistic care to patients or clients in the practice setting;

(v) assisting in the management of research projects, and participating in quality improvement programs and policy development within the practice setting;

(vi) managing a specific portfolio as designated by the Director of Nursing;

(vii) being responsible for education and training in relation to clinical practices;

(viii) being responsible for the clinical supervision of nurses at Level 1 and/or enrolled nurses; and

(ix) accepting accountability for the employee's own standards of nursing care and service delivery and professional development.

• Clause 17 is headed “Calculation of Rates of Pay”. It provides methodology for converting “an amount expressed as an annual rate of pay” to a weekly rate and vice versa. At cl 17.4, special provision is made for deriving a weekly rate of pay for school health nurses not required to work school holiday periods.
• Clause 14 is headed “Community Nurses”. Notably, cl 14.4 contains provisions that apply specifically to school nurses, to deal with the school vacation periods. It is not necessary to set out the substance of those provisions. It is relevant to note that the terminology used in the clause is “ordinary wages”, “ordinary rate of pay” and “weeks’ wages”.
• Clause 18 is headed “Payment of Salary”.
• Clause 24 is headed “Salary Packaging”. Without detailing the substance of the entitlement it provides, it is noted that the terminology used is “an arrangement whereby the wage or salary benefit arising under a contract of employment…” suggesting, like elsewhere, that the words “wage” and “salary” may be used interchangeably.
• Various other clauses make provision for shift work penalties, allowances and payment of overtime. The ordinary hours of work for a school nurse is 38 per week: cl 27(22). Hours in excess of those hours attract overtime rates of pay in accordance with cl 29. In contrast, cl 29(6) states that there are “no fixed hours” for all Senior Registered Nurses Levels 5 to 10.

Parties’ Submissions

21      In her submissions of 1 July 2021, Ms Fenton said:

I have no opinion as to whether I am a government officer or not but, I wish to continue to work within the General Jurisdiction of the IR Act to reach a resolution.

22      She then sets out a number of matters concerning the respondent’s processes which she asks to be “examined”. Of course, neither the Board, nor the Commission, can examine those matters unless the jurisdiction to do so is identified and an application is properly brought invoking such jurisdiction.

23      The respondent’s position is that Ms Fenton is employed by it pursuant to s 140 of the Health Services Act 2016 (WA). The respondent readily concedes Ms Fenton’s status as a government employee, but contends that she is not on its salaried staff. Rather, the respondent characterises Ms Fenton as a wages employee, following the decision of Kenner C in The Australian Nursing Federation, Industrial Union of Workers Perth v The Minister for Health & Others [2004] WAIRC 12373; (2004) 84 WAIG 2867and Beech CC in Wilkes v Metropolitan Health Service[2013] WAIRComm 00936; (2013) 93 WAIG 1739.

Meaning of “salaried staff”

24      The only potentially applicable category of “government officer” is that referred to in s 80C(1)(b). No issue in this case is taken with the proposition that WACHS is a “public authority” or that Ms Fenton was an employee.

25      The meaning of “salaried staff” for the purpose of the definition of “government officer” has been considered in a series of decisions by the Industrial Appeal Court, the Board and the Commission:

TAB v Fisher

26      Anderson J delivered the lead judgment in The Totalisator Agency Board v Edith Fisher (1997) 77 WAIG 1889. The question to be decided there was whether the payments made to an individual under a written contract styled as an Agency Agreement were “salary” such that she could be regarded as a “person employed on the salaried staff of a public authority”. His Honour stated (citations omitted):

It is trite that words in legislation, including subordinate legislation such as an award, should be given their ordinary meaning (ie, read in their natural sense) unless it appears from the whole of the legislative instrument that they are to have some qualified or extended meaning or some meaning different from their ordinary meaning.

There are many cases in which the meaning of “salary”, “wage” and “income” are discussed. Invariably the discussion has taken place in the context of particular legislation …

In my opinion although it can be helpful to see how words have been defined in other cases, the starting point is the ordinary meaning of the words … We were referred to several dictionaries. There is not much difference between them as to what salary in its ordinary sense means. In the Macquarie Dictionary the following meaning is given—

“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.”

In the New Shorter Oxford English Dictionary the following meaning is given—

“Fixed regular payments made by an employer to an employee in return for work.”

In my opinion the financial returns to which the respondent was entitled under the Agency Agreement were not of that character. The money to be received by the respondent was not a “fixed periodical payment” or a “fixed regular payment”. It was a commission on the turnover achieved in the betting shop. The amount of money the respondent would receive did not depend on any fixed hourly, daily or weekly rate of remuneration, but on how much betting took place at the premises. It might be a lot one week and little the next. Neither was the money paid for “regular work or services” or “in return for work”. The respondent was not required to be in personal attendance at the premises. The amount of commissions yielded under the agency agreement was, in terms of that agreement, unrelated to how much work the respondent herself actually did. Furthermore, the turnover percentages and other entitlements provided for in the agreement were plainly intended to cover costs associated with the operation of the agency including wages for staff which she employed, insurances and repairs and maintenance not to mention rental of equipment. Returns of that kind do not come within the notion of “salary”.

If resort is had to case law to ascertain the ordinary meaning of the word salary, I can find nothing in the cases to which we have been referred including the cases mentioned above, which would support the conclusion that the commission and other entitlements provided for in this Agency Agreement are salary. Both parties relied on the case of In Re Shire, Ex parte Shine (supra) in support of their opposite contentions. In my opinion the judgments provide no support for the respondent’s case. At 529 Bowen LJ said—

“Salary, I think, must mean a definite payment for personal services arising under some contract, and (to borrow an expression of my brother Fry) computed by time.”

As I have tried to point out the agency commission is anything but a “definite payment for personal services ... computed by time”. In that same case Fry LJ said at 531—

“Whenever a sum of money has these four characteristics—first, that it is paid for services rendered; secondly, that it is paid under some contract or appointment; thirdly, that it is computed by time; and fourthly, that it is payable at a fixed time—I am inclined to think that it is a salary, and not the less so because it is liable to determination at the will of the payer, or that it is liable to deductions.”

27      Scott J, agreeing with Anderson J, said:

As the reasons of Anderson J reveal, the word “salary” is used in many different statutes and in different contexts. It is not possible to discern a singular meaning of the word which would apply to all of the statutory contexts in which the word appears. The judgment of Fry LJ in In Re Shine; Ex parte Shine [1892] 1 QB 522 gives an indication of the criteria that may be looked at in determining whether or not a particular payment is a “salary”. The four characteristics to which Fry LJ refers at 531 are a valuable guide in determining whether or not any payment is a “salary” for the purpose of a particular statute.

ANF v Minister for Health

28      In The Australian Nursing Federation, Industrial Union of Workers Perth v The Minister for Health & Others [2004] WAIRC 12373; (2004) 84 WAIG 2867 Commissioner Kenner (as he was then) considered whether Senior Registered Nurses in positions such as Directors of Nursing within the State’s health services were “government officers” as defined in s 80C(1) of the Act.

29      After setting out the definition of “Government officer” in s 80C, the Commissioner referred to the terms of the industrial instruments under which registered nurses were employed, with particular regard to the classifications. Notably, the Commissioner identified a distinction in the rates of pay for various levels of nurses, with some classifications paid “base rates per week” and “total rates per week” and Senior Registered Nurse classifications paid a “total rate per year”.

30      The learned Commissioner then said at [19]-[20]:

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.”

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).

31      Based on the provisions of the relevant Award, the learned Commissioner concluded that Senior Registered nurses occupying Levels 7 to 10 were paid a “salary” [21]-[22]. In doing so, the learned Commissioner considered it telling that those classifications were paid a “total rate per annum” as opposed to weekly rates of wages, and that the overtime provisions of the award did not apply to those classifications. The result of the reasoning was, implicitly, that those classifications below Senior Registered Nurse and who were paid weekly rates of wages would not be regarded as salaried staff.

McGinty v DCS

32      In McGinty v Department of Corrective Services ABN 25103389163 [2012] WAIRComm 54; (2012) 92 WAIG 190 the Board considered whether a Vocational Support Officer at Casuarina Prison was a “government officer” for the purposes of s 80C(1). The key issue was whether he was employed “on the salaried staff” of the relevant public authority.

33      The Board, chaired by Commissioner Kenner (as he was then) gave unanimous reasons for concluding that Mr McGinty was not employed “on the salaried staff” of the agency.

34      The learned Commissioner noted that the relevant industrial instruments referenced remuneration arrangements as both “annualised salary” and “wages”. He noted that historically, the annualised salary was introduced as part of a package of reforms to working arrangements to roll overtime, penalty rates, shift allowances and other benefits into an annual salary [7],[8].

35      The learned Commissioner referred to The Totalisator Agency Board v Edith Fisher (1997) 77 WAIG 1889 as the leading authority on this issue of the meaning of “salary”, saying at [10]-[11]:

There is no fixed meaning of “salary”. The leading authority in this jurisdiction is The Totalisator Agency Board v Edith Fisher (1997) 77 WAIG 1889. In the view of Kennedy J in that case, the ordinary dictionary meaning of “salary” was the starting point for consideration, that being a “Fixed payment made periodically to a person as compensation for regular work; now usually restricted to payments made for non-manual or non-mechanical work (as opposed to wages)”. He then stated that “the concept of a fixed payment is central to the definition” (at 1890).

Whilst at first blush it might be said that prison officers are now paid a salary on this basis, the history of the award and agreement shows that they were historically wages employees and that the payment of remuneration annually was a result of administrative changes some years ago. As noted above, the industrial instruments in part, still refer to the payment of “wages”. Further, s 80C of the Act does not just refer to the payment of a “salary” to a person. The statute refers to a person employed on the “salaried staff” of a public authority. Whilst the distinction between “wages employees” and “salaried staff” in terms of somewhat anachronistic “blue collar” and “white collar” employment may no longer have the connotations it once may have had, nonetheless, the legislature has sought to confine the jurisdiction of the Arbitrator to those specific employees in s 80C of the Act. They are generally those in the administrative, technical and professional ranks of the public sector.

Capewell v DCS

36      Capewell v Department of Corrective Services [2013] WAIRComm 390; (2013) 93 WAIG 1454 was another unanimous decision of the Board, chaired by Commissioner Kenner (as he was then).

37      Ms Capewell was a long-standing prison visitor employed by the Department of Corrective Services. She appealed to the Board against the termination of her employment. The Board’s jurisdiction was conditioned upon her being a “government officer” under s 80C. The key contentious issue was whether Ms Capewell was a member of the “salaried staff” of the Department.

38      Ms Capewell was paid a loaded hourly rate for hours that fluctuated from pay period to pay period.

39      The Board set out the Board’s prior statements in McGinty at [10]-[11] and ANF at [19]-[20], before concluding at [12]:

In this case, it is common ground that Ms Capewell was paid an hourly rate of pay which was a loaded rate, compensating her for the absence of entitlements such as annual leave and sick leave. Furthermore, the evidence was that Ms Capewell did not work fixed regular hours each week, and did not receive remuneration in the form of a “fixed periodical payment” computed by time. Rather, the evidence was that Ms Capewell was paid for the hours she actually worked, as and when required, on an hourly basis. Accordingly, we are not persuaded that the payments made to Ms Capewell during the course of her employment as a Visitor could be regarded as a “salary” in accordance with the authorities. Furthermore, as was the case in McGinty, we are also of the view that it could not be said that Ms Capewell, was a member of the “salaried staff” of the Department, in the sense referred to in McGinty.

Wilkes v RPH

40      In Wilkes v Metropolitan Health Service - Royal Perth Hospital (formally EMHS now SMAHS) [2013] WAIRComm 936; (2013) 93 WAIG 1739 Chief Commissioner Beech was required to consider whether the Commission had jurisdiction to determine a claim for unfair dismissal under s 29(1)(b)(i) where the applicant was a “government officer”. He found the Commission did not have jurisdiction to enquire into and deal with Ms Wilkes’ claim of unfair dismissal because s 80E(1) confers exclusive jurisdiction for industrial matters relating to government officers on the Public Service Arbitrator. The Commission was not called upon to consider the issue of whether or not the applicant was “salaried staff”.

Mirosevich v EMHS

41      In Mirosevich v East Metropolitan Health Service [2018] WAIRComm 220; (2018) 98 WAIG 176, Commissioner Emmanuel considered whether a casual security officer employed at metropolitan hospitals was “employed on the salaried staff” of EMHS and was therefore a government officer. The applicant in that case had made an unfair dismissal claim under s 29(1)(b) of the IR Act. EMHS objected to the Commission hearing his unfair dismissal claim on the basis that the applicant was a government officer and therefore within the exclusive jurisdiction of the Board.

42      The parties did not agree as to which industrial instrument applied to Mr Mirosevich’s employment. The learned Commissioner did not consider it was necessary to resolve the issue of which industrial agreement, if any, applied, in order to resolve the jurisdictional objection “because whether Mr Mirosevich was employed on the salaried staff of EMHS does not depend on which industrial instrument, if any, applied” [32].

43      It appears to have been uncontentious in that case that Mr Mirosevich was paid by the hour and the number of hours he worked varied from week to week. The learned Commissioner summarised Mr Mirosevich’s contention as being that ‘salary’ “must be a fixed amount of money, rather than fixed by reference to a particular hourly rate and number of hours worked” [22]. The learned Commissioner dealt with this contention as follows:

23. Anderson J in TAB said that ‘although it can be helpful to see how words have been defined in other cases, the starting point is the ordinary meaning of the words.’ In that case, reference was made to several dictionary definitions, with Anderson J noting there was not much difference between them. Anderson J said that the money received by the employee in TAB was:

... not a “fixed periodical payment” or a “fixed regular payment”. It was a commission on the turnover achieved in the betting shop. The amount of money the respondent would receive did not depend on any fixed hourly, daily or weekly rate of remuneration, but on how much betting took place at the premises. It might be a lot one week and little the next. Neither was the money paid for “regular work or services” or “in return for work” (1891).

24. Anderson J quoted from the judgments in Re Shine; Ex parte Shine [1892] 1 QB 522: ‘At 529 Bowen LJ said – ‘Salary, I think, must mean a definite payment for personal services arising under some contract, and (to borrow an expression of my brother Fry) computed by time’ (1891).

25. In Re Shine Fry LJ said at 531 ‘Whenever a sum of money has these four characteristics – first, that it is paid for services rendered; secondly, that it is paid under some contract or appointment; thirdly, that it is computed by time; and fourthly, that it is payable at a fixed time – I am inclined to think that it is a salary’.

26. Scott J in TAB said ‘the judgment of Fry LJ in Re Shine... gives an indication of the criteria that may be looked at in determining whether or not a particular payment is a “salary”. The four characteristics to which Fry LJ refers at 531 are a valuable guide in determining whether or not any payment is a “salary” for the purpose of a particular statute’ (1891). Further, he said ‘it is sufficient to say that in my opinion, [the appellant in TAB] was not being paid for her services in a manner computed by time and that is sufficient to dispose of the matter’ (1891).

27. Consistent with the reasoning in TAB, a ‘salary’ may be an amount that varies depending on hours worked. Here Mr Mirosevich was rostered to work and paid a casual rate in accordance with the number of hours he worked. It is clear from his contract and payslips that Mr Mirosevich’s casual rate of pay was fixed according to time and derived from the annual full-time salary of a level G4 security officer.

44      The learned Commissioner ultimately found that Mr Mirosevich “received a salary and was not a wages employee. He was employed on the salaried staff of EMHS and was therefore a government officer” [33]. The basis for so finding followed from the following relevant findings:

(a) Mr Mirosovich’s pay slips and contract which showed Mr Mirosevich’s casual rate of pay was fixed according to time in accordance with the hours he worked and derived from the annual full-time salary of a level G4 security officer [27];

(b) Mr Mirosovich was paid for services rendered under his contract of employment, computed by time [28]; and

(c) A job description for the position “Security Officer” indicated the position was professional and administrative in nature, that is, “white collar” [29]-[31].

45      The outcome in Mirosevich appears to be at odds with the earlier decisions of ANF, McGinty and Capewell, indicating a departure from the established approach. We are not inclined to follow Commissioner Emmanuel’s approach in Mirosevich. In our view, the meaning the learned Commissioner gives to the word “salary” does not adequately delineate what salary is, and what it is not. The legislature intended for the reference in the definition of “government officer” to “salaried staff” should delineate a particular group of employees, that is, to set a group of employees apart from employees as a whole. Equating “salaried staff” to those employees who are paid an amount fixed by reference to, or computed by time, does not achieve any effective delineation. It would be difficult to envisage an employee whose earnings do not fall into such broad a meaning, except those paid exclusively by commission or piece rates.

46      It must be remembered that when Anderson J adopted the phrase “computed by time” used by Fry LJ in Re Shine, his Honour subordinated it to the ordinary and natural meaning, which involved a “fixed regular payment”. His Honour also placed it within the requirement for “definite payment for personal services”, effectively paraphrasing and adding to the other three characteristics identified by Fry LJ. This would exclude from the meaning of salary an amount computed on an hourly basis (by time) which, because of the variability in hours worked or the circumstances such work is performed, results in indefinite periodical payments. As Kenner C identified in McGinty, the concept of a fixed payment is central.

47      We therefore return to what is the ordinary and natural meaning of the phrase “salaried staff”. The earlier decisions we have referred to above refer to various dictionary definitions, and it is helpful to briefly revisit those. The Macquarie Dictionary meaning of “salary” is:

…a fixed periodical payment paid to a person for regular work or services, especially work other than that of a manual, mechanical, or menial kind.

48      The Oxford English Reference Dictionary definition of “salary” is:

A fixed regular payment, usually monthly or quarterly, made by an employer to an employee, esp. a professional or white-collar worker (cf wage).

49      The Oxford definition references the definition of wage for clarification of meaning. “Wage”, then, is defined:

…a fixed regular payment, usually daily or weekly, made by an employer to an employee, especially to a manual or unskilled worker (cf salary).

50      We consider these definitions are most helpful in understanding the phrase “salaried staff” in s 80C. From these definitions one can appreciate the subtlety of difference between “salary” and “wages”. Once it is accepted that the words are intended to limit the class of employees to whom it applies, it follows that the dichotomy between salary and wages is important. Contrasting these two concepts, wages and salary, assists to clarify where the focus of the difference between wages employees and salaried staff lies. Both are paid a fixed, regular/periodical payment. Accordingly, a focus on computation of earnings by time is of little utility. Rather, the key differences are in the frequency of payments and the services for which the payment is made. Commissioner Kenner arrived at this point in McGinty when he succinctly described salaried staff as “generally those in the administrative, technical and professional ranks of the public sector”.

Application to Ms Fenton

51      Notwithstanding the reference in Ms Fenton’s employment contract to her “salary,” her remuneration arrangements were such that she was paid a wage, calculated by reference to an hourly “Base rate” of pay for the hours she worked. Further, despite the 2018 Agreement using the term “salary” in various clause headings, the pay arrangements, particularly those for Ms Fenton’s classification of Level 2 Registered Nurse, were that she would be paid an hourly rate calculated by reference to an “ordinary rate of pay” in addition to overtime for hours worked exceeding 38 hours in a week, and allowances. Her earnings were regular or periodic. They were also determined, in part, by reference to time. Payment for the base hours was calculated by reference to a fixed amount, namely the “Full time salary” rate. However, her earnings were not entirely fixed in the necessary sense, because penalties, allowances and overtime rates were payable depending on what work was performed and when it was performed.

52      It is also necessary to consider the nature of the services Ms Fenton provided and for which her remuneration was paid. As a Level 2 Registered Nurse, Ms Fenton provided nursing care directly to patients or clients within the school setting. She was accountable for her own service delivery, but not anyone else’s. She drew on her clinical nursing experience, and status as a Registered Nurse, to provide patient care and management of patients. Her duties did not involve organisational management so it cannot be said her earnings were for administrative, managerial or technical services. Nor could her role be described as being in the administrative or professional ranks of the public service.

53      Having regard to both the structure of Ms Fenton’s remuneration and the services she provided in respect of which her remuneration was paid, we do not consider she earned a salary or was a member of the respondent’s salaried staff. Indeed, her position is in contrast to the managerial and salaried positions held by Level 7 to Level 10 Senior Registered Nurses who were held to be “government officers” in ANF.

54      As Ms Fenton is not employed on WACHS’s salaried staff to bring her within the definition of a “government officer” for the purposes of s 80C(1) of the IR Act, her appeal is beyond the Board’s jurisdiction.

Orders

55      Ms Fenton’s appeal will be dismissed.