CONTRACTUAL BENEFIT CLAIM

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00300

DELIVERED : THURSDAY, 14 July 2022

FILE NO. : B 71 OF 2022

Applicant

AND

Government of Western Australia Mental Health Commission

Respondent

CatchWords : Industrial Law (WA) – Contractual Benefit Claim – Continued participation in government vehicle scheme – Application made for summary dismissal – Jurisdiction to hear and determine application – Whether the Commission has jurisdiction – Whether or not the applicant was a government officer – Applicant found to be a member of the respondent’s salaried staff – Application dismissed

Legislation : Industrial Relations Act 1979 (WA)

Public Sector Management Act 1994 (WA)

Public Service Award 1994 (WA) 

Result : Application dismissed for want of jurisdiction

Representation:

Applicant : Ms T Williams on her own behalf

Respondent : Mr J Carroll of counsel

Case(s) referred to in reasons:

Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward [2008] WAIRC 00079; (2008) 88 WAIG 156

Crowley v Chief Executive Officer, Department of Commerce [2017] WAIRC 00262; (2017) 97 WAIG 454

Crowley v Department of Commerce [2016] WAIRC 00882; (2016) 96 WAIG 1648

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         Ms Theresa Williams commenced proceedings in the general jurisdiction of the Commission, claiming the Mental Health Commission has denied her a benefit of her contract of employment, namely, access to a government vehicle scheme vehicle. The relevant circumstances are that Ms Williams was given a written assurance in the form of an email from the Chief Psychiatrist dated 9 August 2017 that ‘…continuation of the SOVS (or equivalent) vehicle…’ would be part of the conditions of a mutually agreed process for her to transfer from the Department of Health to the Mental Health Commission.

2         Having then had the benefit of a government vehicle scheme vehicle for her use, Ms Williams was notified earlier this year that her continued participation in the government vehicle scheme would be withdrawn from 1 November 2022.

3         The Mental Health Commission applied for the summary dismissal of Ms Williams’ claim on the basis that the Commission does not have jurisdiction to determine her claim. It says that Ms Williams is a government officer for the purposes of s 80C of the Industrial Relations Act 1979 (WA) (IR Act) and that the Public Service Arbitrator has exclusive jurisdiction (to the exclusion of the general jurisdiction of the Commission) over industrial matters relating to government officers under s 80E of the IR Act.

4         Copies of Ms Williams’ offer of employment with the Mental Health Commission, her contract of employment and her job description were each tendered into evidence and relied upon in support of the respondent’s application for summary dismissal.

5         Ms Williams agrees that she is a government officer within the meaning of s 80C of the IR Act. She did not seek to make any submissions in opposition to the summary dismissal application.

6         I find that Ms Williams is a government officer. It follows, for the reasons set out below, that the Commission does not have jurisdiction in respect of her claim, and it must therefore be dismissed.

The Public Service Arbitrator’s exclusive jurisdiction in relation to government officers

7         Section 80E(1) provides:

(1) Except as provided in Part II Divisions 3, 3AA and 3B 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.

8         It has been held that the effect of this provision is to confer exclusive jurisdiction in respect of industrial matters relating to government officers on the Public Service Arbitrator. That the Commission’s general jurisdiction under s 29(1)(b)(ii) and s 23 of the IR Act is not able to be availed of by a government officer was discussed in Crowley v Department of Commerce [2016] WAIRC 00882; (2016) 96 WAIG 1648, affirmed by the Full Bench in Crowley v Chief Executive Officer, Department of Commerce [2017] WAIRC 00262; (2017) 97 WAIG 454. Mr Crowley claimed that he had standing to make an application pursuant to s 29(1)(b)(ii) to recover a sum he said was due as a contractual benefit that had been denied to him. Acting Senior Commissioner Kenner (as he was then) found the claim to be beyond the jurisdiction of the Commission to hear and determine under s 23 of the IR Act, as Mr Crowley was a government officer, and all industrial matters in connection with such officers fall exclusively within the jurisdiction of the Public Service Arbitrator. The learned Acting Senior Commissioner cited Chief Executive Officer, Department of Agriculture and Food v Trevor James Ward [2008] WAIRC 00079; (2008) 88 WAIG 156.

9         In Ward, Acting President Ritter said at [86]‑[88]:

86 The next question is whether the Senior Commissioner did have jurisdiction to determine the s29(1)(b)(ii) claims.

87 Section 80E(1) of the Act has been earlier quoted. It provides the Arbitrator with “exclusive jurisdiction to enquire into and deal with any industrial matter relating to a government officer”. It is not in dispute that the respondents were and are government officers. The expression “industrial matter” is defined in s7 of the Act. I have earlier referred to the expansive definition of “industrial matter” in s7 of the Act. The “matter” of the dispute between the appellant as employer and the respondents as employees was clearly within both the general meaning of “industrial matter” and the matters specified in paragraph “(a)” of the definition.

88 Accordingly, under s80E(1) of the Act the Arbitrator had “exclusive jurisdiction to enquire into and deal with” the present dispute. The next relevant question is what was the nature and content of Arbitrator’s exclusive jurisdiction.

10      His Honour concluded at [92]:

92 When an industrial matter is referred to the Commission under s29, the Commission has the jurisdiction to inquire into and deal with the industrial matter because of s23(1) of the Act. As stated in the joint reasons quoted earlier, the effect of s80E(1) is that the general jurisdiction of the Commission pursuant to s23 is excluded. That “general jurisdiction” includes claims referred to the Commission under s29(1)(b)(ii) of the Act. The consequence is that the Commission did not have any jurisdiction to deal with the respondents’ referral of the s29(1)(b)(ii) claims…

and at [94]:

The s29(1)(b)(ii) claims ought to have been dismissed on the basis of an absence of jurisdiction…

11      Commissioner Wood agreed with the Acting President’s reasons on the issue of jurisdiction. Chief Commissioner Beech similarly found that the denied contractual benefits claims made by the two government officers in the Commission’s general jurisdiction were invalid because the Commission’s general jurisdiction cannot enquire into and deal with an industrial matter relating to a government officer: [170].

Was Ms Williams a government officer?

12      Section 80C(1) of the IR Act defines government officer to mean, relevantly:

…

government officer means —

(a) every public service officer; and

…

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

…

13      A public authority includes a State Government department. The Mental Health Commission was established as a State Government department with effect on and from 8 March 2010, pursuant to s 35(1)(a) of the Public Sector Management Act 1994 (WA) (PSMA) and a designation, gazetted on 5 March 2010.

14      ‘Public service officer’ means a public service officer within the meaning of the PSMA. Section 3 of the PSMA defines public service officer to mean:

…an executive officer, permanent officer or term officer employed in the Public Service under Part 3;

15      Section 34 of the PSMA provides that the public service is 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.

16      Ms Williams’ offer of employment refers to her permanent full‑time position as being classified at ‘Level 9 non‑SES under the terms and conditions of the Public Service Award 1992 and the Public Service and Government Officers General Agreement 2014’. The scope of the Public Service Award 1992 (WA) is set out in cl 4 of the Award:

4. – SCOPE

 This Award shall apply to all public service officers, other than those listed in (a), (b) and (c) of this clause, appointed under Part 3 or Part 8 Section 100, of the Public Sector Management Act 1994 or continuing as such by virtue of clause 4(c) of Schedule 5 of that Act, who are members of or eligible to be members of the Civil Service Association of Western Australia (Inc).

(a) A public service officer whose remuneration payable is determined or recommended pursuant to the Salaries and Allowances Act 1975.

(b) A public service officer whose remuneration is determined by an Act to be at a fixed rate, or is determined or to be determined by the Governor pursuant to the provisions of any Act.

(c) A chief executive officer as defined in section 3(1) of the Public Sector Management Act 1994.

17      The terms of Ms Williams’ engagement therefore indicate that her engagement is pursuant to Part 3 of the PSMA and that she is a public service officer.

18      The respondent submitted in the alternative that Ms Williams is employed on the salaried staff of a public authority. It is uncontentious that, as a State Government department, the Mental Health Commission is a public authority.

19      In Fenton v WA Country Health Service - SW [2021] WAIRC 00214; (2021) 101 WAIG 585, the Public Service Appeal Board examined the case law regarding what it means to be ‘on the salaried staff’ of a public authority for the purposes of the definition of ‘government officer’. It is not necessary to repeat that analysis, other than to emphasise that whether a person is paid a salary is a matter of fact, and whether a person is on the salaried staff involves a consideration both of the structure of the employee’s remuneration as well as the nature of the services for which the remuneration is paid.

20      Ms Williams’ remuneration is described in her contract of employment as ‘salary’. The initial starting salary is $173,819 per annum.

21      The job description form for Ms Williams’ position indicates that her role as a director, research and strategy, reporting to the chief psychiatrist, has as its objectives and responsibilities:

Primary Objectives of role:

• Deliver a strategic research program to support the Chief Psychiatrist in fulfilling his/her statutory responsibilities.

• Undertake reviews and investigations relating to Standards and statutory Guidelines to support safe, high quality care.

• Support the Chief Psychiatrist in his clinical leadership role of promoting best practice and continuous quality improvement.

• Provide high-level analysis and advice to the Chief Psychiatrist on emerging issues and trends in mental health policy and service delivery.

• Identify and capitalize on opportunities to strengthen the capability of the mental health sector in delivering the highest level of contemporary clinical treatment and care.

Primary Responsibilities

Employees are required to undertake all duties and responsibilities in accordance with Public Sector Commissioner's Instruction No. 7 Code of Ethics, Office of the Chief Psychiatrist Code of Conduct, Policies/Procedures and relevant legislation.

Research and Sector Development

• Deliver a strategic research program to support safe, high quality treatment and care.

• Disseminate findings from research, reviews and investigations to inform the implementation of evidence-based reforms in the mental health sector.

• Translate knowledge from international and national advances in the field of mental health and allied areas to the Western Australian context to support the mental health sector build capacity and deliver safe, high quality services.

• Provide high level strategic advice to the Chief Psychiatrist on international and national trends and issues including the implications for the Western Australian mental health sector.

Reviews and Investigations

• Review and evaluate the performance of the mental health system against the national and State reform agendas.

• Undertake system-wide, service level and individual reviews and investigate issues of a complex and sensitive clinical nature as directed by the Chief Psychiatrist.

• Participate in quality reviews of mental health services for the Chief Psychiatrist that may progress into identifying issues pertinent to research initiatives.

Stakeholder Engagement

• Build productive relationships with key stakeholders including the university, social welfare, justice and general health sectors.

• Develop research partnerships at the international, national and State level and conduct inter-sectoral research projects as joint initiatives with key stakeholders.

• Represent the Office of the Chief Psychiatrist on working groups and committees at a national and State level.

Other

• Contribute to the strategic direction of the Office of the Chief Psychiatrist by participating as a member of the Executive Team.

• Duties as directed.

…

22      Notably, the position is clearly a high level position that is professional in nature. The job description describes it as involving the provision of high level strategic advice, high level analysis and contributions to the strategic direction of the Mental Health Commission as a member of its executive team.

23      Ms Williams’ role is within the professional ranks of the public service and is therefore of the type of specific employees of the public sector described by Commissioner Kenner (as he was then), in McGinty v Department of Corrective Services [2012] WAIRC 00054; (2012) 92 WAIG 190 as forming part of the salaried staff.

24      The fact that the terms and conditions of Ms Williams’ employment are governed by industrial instruments whose scope has, historically, been defined by reference to government officers within the meaning of the IR Act also fortifies my conclusion that the work is in the nature of work performed by salaried staff and that the remuneration arrangements are consistent with Ms Williams being salaried staff.

25      On this basis, I find, as a matter of fact, that Ms Williams was employed on the Mental Health Commission’s salaried staff. Accordingly, she was a government officer, and the Commission is without jurisdiction.

26      Ms Williams’ claim for denied contractual benefits must be dismissed for want of jurisdiction.