DISPUTE RE APPLICATION OF AWARD AMENDMENTS

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2012 WAIRC 00059

DELIVERED : wednesday, 8 february 2012

FILE NO. : PSACR 26 OF 2008

Applicant

AND

Director General of Health as the delegate of the Minister of Health in his incorporated capacity under section 7 of the Hospitals and Health Services Act 1972 for the hospitals formerly comprising the Metropolitan Health Services Board in the person of Dr Phillip Montgomery, Executive Director, Royal Perth Hospital, South Metropolitan Area Health Service

Respondent

Catchwords : Industrial Relations (WA) - Claim for the salary of the position of Head of Department, Medical Engineering and Physics to be restored to the same relativity at the time applicant's member was appointed to position - Matter remitted by Full Bench for further hearing and determination - Whether fair, just and reasonable to refuse to award an increase in remuneration - Issues of equity and good conscience considered - Order and declaration issued

Legislation : Industrial Relations Act 1979 s 7, s 26(1)(a), s 37(1), s 39, s 39(1), s 39(3), s 44(9), s 44(13), s 80E, s 80E(1), s 80E(2), s 80E(5), s 80F(1), s 80G(1)

Result : Order and declaration issued

Representation:

Applicant : Mr M Swinbourn

Respondent : Mr R Andretich (of counsel)

Case(s) referred to in reasons:

BHP Billiton Iron Ore Pty Ltd v Construction Forestry, Mining & Energy Union of Workers & Anor [2006] WASCA 49; (2006) 86 WAIG 1193

Health Services Union of Western Australia (Union of Workers) v Director General of Health as the delegate of the Minister of Health (2010) 91 WAIG 234

Director General of Health as the delegate of the Minister of Health v Health Services Union of Western Australia (Union of Workers) (2011) 91 WAIG 856

Robe River Iron Associates v Association of Drafting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11

Reasons for Decision

1         On 17 January 2011 an order issued in this matter that the salary of the position of Head of Department, Medical Engineering and Physics (the Position) at Royal Perth Hospital (the Hospital) held by Mr Edward Scull be increased to reflect the relativity of this position to other senior positions within the Department of Medical Engineering and Physics (the Department) at the level it was when Mr Scull commenced employment in the Position in 2002.  This decision was appealed and on 23 May 2011 the Full Bench of the Commission allowed the appeal, suspended the order that issued on 17 January 2011 and remitted the matter to the Public Service Arbitrator (the Arbitrator) at first instance for further hearing and determination on the merits.  The Full Bench remitted the matter on the basis that the issue before the Arbitrator included whether the respondent acted in a manner that was not fair, just or reasonable by refusing to award an increase to the salary of the Position after it implemented the Health Professional Work Value Review (the HPR) and the Full Bench stated that this application should be heard and determined on these grounds (see Director General of Health as the delegate of the Minister of Health v Health Services Union of Western Australia (Union of Workers) (2011) 91 WAIG 856).

2         The respondent was the only party to give further evidence with respect to this application.

3         Dr Philip Montgomery gave evidence by way of a witness statement (Exhibit R4).  Dr Montgomery is currently the Acting Regional Medical Director of the WA Country Health Service for the Pilbara region.  During 2002 Dr Montgomery was the Deputy Director of Clinical Services at the Hospital and in this position his responsibilities included the selection and appointment of senior staff at the Hospital.  Dr Montgomery stated that following the resignation of Dr Richard Fox it was intended that the Position would continue as a clinical position.  Dr Montgomery confirmed that he was a member of the selection panel for the Position.

4         After Mr Scull’s interview he asked Dr Montgomery whether the salary and conditions of the previous incumbent of the Position would be maintained and Dr Montgomery told him that the salary and conditions of the appointment would be commensurate with those of Dr Fox.  Dr Montgomery could not recall any specific discussions about the package but he stated that there was no discussion at Mr Scull’s interview about which salary increments would apply to the Position over time and no one on the interview panel gave any undertaking that the relativity of Mr Scull’s salary compared to other positions in the Department would be retained, although he told Mr Scull the status of the position would be retained.

5         Dr Montgomery stated that after the Position was offered to Mr Scull the Hospital clarified the terms and conditions of Mr Scull’s employment by way of a written contract and Dr Montgomery had discussions with Mr Scull about the terms of this contract following his interview.  Dr Montgomery stated that before the final contract was issued to Mr Scull he did not give any undertaking to him that the relativity of his salary compared to subordinate positions reporting to him would be maintained and he gave evidence that he did not give any undertaking or make any representation to Mr Scull that the outcomes of the HPR would be applied to the Position or that the outcomes of this review would be applied in a particular way.  Dr Montgomery also stated that Mr Scull’s appointment predated the decision for the HPR to take place.

6         Under cross-examination Dr Montgomery stated that after he ceased in his role as the Acting Director of Clinical Services at the Hospital in October 2002 he became the Deputy Director of Clinical Services.  He was in this role until 2004 when he became the Executive Director at the Hospital and he held this position until July 2009.

7         Dr Montgomery stated that Dr Fox was a medical physicist and his salary was linked to a classification in the Australian Medical Association (AMA) award even though he was not covered by that award and his salary included a professional expense allowance.  Dr Montgomery stated that it was the Hospital’s intention that the Position have the same status as a clinical appointment as it had both clinical and managerial responsibilities and he stated that this arrangement was a unique and a long standing one.

8         Dr Montgomery stated that when Dr Fox expressed his intention to retire in the middle of 2002 discussions took place about maintaining the status of the Position within the Hospital’s executive as the Department at the Hospital is one of the largest of its kind in an Australian hospital and it was important to get the best possible applicant for the Position.  The rate of pay for the Position was therefore higher than that provided by the then applicable Hospital Salaried Officer’s Award 1968 (the Award).  Dr Montgomery stated that the remuneration of the Position was to be retained at the same level as that of Dr Fox as the Department has many different disciplines and the role of the head of department is the same irrespective of the background of the person undertaking the Position.  Dr Montgomery stated that he had approval from the Hospital to retain the remuneration of the Position at the same rate as the quantum paid to Dr Fox.

9         Dr Montgomery stated that during his discussions with Mr Scull about the salary of the Position he confirmed that the status of the Position, including its salary, would be maintained at the previous level and he stated that Mr Scull was eventually offered the contract for the Position with terms commensurate with Dr Fox’s remuneration package.  Dr Montgomery stated that he understood that Mr Scull would receive a base salary plus increments in the same way as other employees under the Award and the Hospital Salaried Officers Metropolitan Health Services Enterprise Agreement 2001 and any subsequent agreement.

10      Dr Montgomery stated that the Position was not equivalent to the same position at Sir Charles Gairdner Hospital as the Position had more responsibilities.  Dr Montgomery stated that Mr Scull was offered a market rate for his skills and experience and the quantum was designed to retain a quality person in the Position.  Dr Montgomery stated that the issue of relativities of salaries within Mr Scull’s department only came about at the time of the HPR and he was unaware of this review at the time Mr Scull was interviewed for the Position.  Dr Montgomery stated that no discussions took place with Mr Scull about retaining the relativity of the Position with him or in his presence and he stated that the issue of relativities of positions within his department was first raised with him by Mr Scull in 2005.

11      Dr Montgomery agreed that an undertaking was given to Mr Scull to maintain the status of the Position and he stated that retaining the status of the Position related not just to the remuneration of the Position but to its clinical status and the status of the Position could include the quantum of the salary paid to the Position.  Dr Montgomery also gave evidence that maintaining the relativity of positions which report to the Position was important to maintaining the status of a position.

12      Dr Montgomery stated that his memorandum to Mr Scull dated 10 July 2006 was based on industrial advice he received that the Position was not part of the HPR.  Dr Montgomery confirmed that he told Mr Scull in this memorandum that if he could demonstrate a significant increase in the work value of the Position he could renegotiate his contract.  This memo reads as follows (formal parts omitted):

I refer to your memorandum dated 24 November 2005 in which you seek a salary adjustment of 17.28%.

As you are aware, your position is award free and your commencing salary of $126,662 in October 2002 has increased in line with general salary movements under the HSU Award / Agreements.  Those general salary movements are in accordance with the terms of your contract of service and the related explanatory memorandum sent to you on 6 January 2003.

The 17.28% salary adjustment sought by you is not in accordance with the terms of your contract of service and the explanatory memorandum.  The Health Professionals Work Value Review does not apply to the position you occupy.

Under your contract of service you are only entitled to general salary movements.  Should you ever be able to demonstrate significant increases in the value of the work allocated to your position then you would need to renegotiate your contract of service with the South Metropolitan Area Health Service.

(Exhibit A4 document 21)

13      Dr Montgomery agreed that Mr Scull was unhappy with what was stated in this memorandum and he then raised the issue of Mr Scull’s salary with Dr Peter Flett, the Area Chief Executive who had responsibility for the Hospital, on behalf of Mr Scull and he was advised that the Hospital’s human resource section should deal with this issue.  Dr Montgomery was hoping to have this matter resolved but he was not given the go ahead to do so.  Dr Montgomery confirmed that the next step to move this forward was to have an external review of the work value of the Position.  Dr Montgomery then stated that it seemed logical and fair to maintain the relativity of a position which supervises other positions.

14      Dr Montgomery stated that his reference to ‘in scope’ in his memorandum to Mr Scull dated 23 May 2007 was that a commitment was given to Mr Scull to look at the work value of the Position in the context of the HPR.  This memo reads as follows (formal parts omitted):

I have recently been requested to have the classification of the Head of Department Medical Physics determined as it was not included in the recent Specified Callings Work Value Review and I have now been informed that the position is “in scope”.

I have requested the Human Resources Department to engage an independent classification consultant to undertake this review.

HR will be in contact with you shortly requesting the usual documentation.

I would ask you to provide the necessary assistance and support.

(Exhibit A4 document 28)

15      Dr Montgomery was unaware of the outcome of the review of the Position.  Dr Montgomery stated the letter dated 2 October 2007 which he sent to Mr Scull rejecting his claim for an increase in his remuneration was based on the respondent not accepting the methodology for the quantum that was being claimed by Mr Scull and he stated that this correspondence was the end of his direct involvement in this issue (see Exhibit A8).

16      Under re-examination Dr Montgomery confirmed that during the selection processes for the Position he had authority to make a final offer to the successful applicant and he stated that the issue of the relativity of the salary of the Position was not discussed with Mr Scull at his interview or around the time of the interview and no commitment was given to Mr Scull about any outcome with respect to the HPR.

Submissions

Applicant

17      The applicant submits that the basis of the Full Bench’s Order for remitting the matter back to the Arbitrator can be found at [82] of Smith AP’s reasons for decision in Director General of Health as the delegate of the Minister of Health v Health Services Union of Western Australia (Union of Workers) as follows:

I do however agree with the submission made on behalf of the respondent [the Applicant at first instance] that part of the industrial matter before the Public Service Arbitrator was whether consequent upon the appellant implementing the outcomes of the Health Professional Work Value Review the appellant acted in a manner that was not fair, just or reasonable by refusing to award an increase in remuneration for the position held by Mr Scull.  I also agree that it is open to hear and determine the application on these grounds and for this reason it is my opinion that the appeal should be allowed and the decision remitted to the Public Service Arbitrator for further hearing and determination.

18      The applicant relies on Smith AP’s summary at [44] of this decision containing the original findings which were not appealed against and are as follows:

After having regard to this evidence the Public Service Arbitrator found that:

(a) Mr Scull was not entitled by the terms of the memorandum dated 6 January 2003 to have his salary automatically adjusted as a result of work value changes to positions that reported to Mr Scull and was dependent on work value changes to Mr Scull’s position;

(b) At that time Mr Seeds accepted the proposition put to him by Mr Scull that if internal relativities with respect to senior positions within the department changed and the value of work of the position increased then Mr Scull could renegotiate his salary with the appellant; and

(c) As the value of the work required of Mr Scull’s position had increased from a Level 11 to a Level 12; and

(d) The appellant through his representatives had agreed to retain the status of the position prior to Mr Scull’s appointment to the position;

the salary of the position should be increased to reflect the relativity of the position to other senior positions within the department at the level it was when Mr Scull commenced employment in the position.

19      The applicant submits that the jurisdiction of the Arbitrator to deal with an industrial matter arises under s 80E(1) of the Industrial Relations Act 1979 (the Act) and the powers the Arbitrator has with respect to an industrial matter brought before the Arbitrator under s 80E(1) are contained at s 80E(5) of the Act.  The applicant maintains that the industrial matter before the Arbitrator that is liable to be reviewed, nullified, modified or varied by the Arbitrator is the decision of the respondent on 29 September 2009 not to award an increase in remuneration for the Position occupied by Mr Scull after the respondent implemented the outcome of the HPR.  The applicant also argues that the Arbitrator must exercise its powers under s 80E(5) of the Act in compliance with s 26(1)(a) of the Act in accordance with equity, good conscience and the substantial merits without regard to technicalities or legal forms.

20      The applicant submits that as findings of facts identified by the Arbitrator at first instance were not appealed against it remains open to the Arbitrator to consider the facts as found in the matter at first instance to be correct.

21      The applicant submits that the failure to award an increase in remuneration in the face of an identified increase in the value of the work Mr Scull provides to the respondent is unfair and the applicant argues that the respondent’s refusal to agree to Mr Scull’s claim for an increase to his salary is contrary to the finding of the respondent’s assessor that there had been work value changes to the Position which were significant enough to justify a reclassification of the Position from Level 11 to Level 12.  The applicant argues that as the respondent has taken the benefit of the increase in work value of the Position without providing any additional remuneration to Mr Scull this is unfair and justifies the Arbitrator exercising its jurisdiction in Mr Scull’s favour.

22      Even though the State Wage Fixing Principles do not strictly apply in the present proceedings they provide a useful basis upon which the Arbitrator can be guided when exercising its discretion.  The applicant argues that Mr Scull’s salary was based on Level 11 under the Award at the time of the HPR and when the Position was reclassified to Level 12 his salary should have increased accordingly.  When there has been a significant increase to the value of the work of a position this would usually result in the incumbent moving up the classification structure and their remuneration being increased but this did not occur in the case of Mr Scull because the respondent took the view that his existing salary was adequate.  As the respondent’s refusal to reflect the increase in work value in the Position is not consistent with the State Wage Fixing Principles this is also unfair and unreasonable.

23      The applicant argues that maintaining the status of the Position with respect to those positions that report to Mr Scull was of critical importance to Mr Scull at the time he commenced in the Position.  The applicant argues that whilst there was no express or implied contractual right for the salary of the Position to be increased to reflect the relativity of the Position to other senior positions within the Department at the level it was when Mr Scull commenced employment in the Position it is unfair, unjust and unreasonable for the respondent not to award this increase.  The applicant submits that by failing to apply any increase to Mr Scull’s salary the respondent has sought to devalue the Position and to reduce the relativity of the Position with respect to like professionals and positions which report to his position.  The applicant relies on the following changes to senior positions which reported directly to Mr Scull being reclassified at least one level upwards.

24      The applicant submits that it is appropriate that Mr Scull retain the status which goes with his remuneration and the applicant claims that the respondent’s failure to maintain Mr Scull’s salary has reduced the relativity of his salary compared to positions which report to the Position.  The respondent’s failure to maintain this relativity has reduced the overall relativity of Mr Scull’s salary from 51.97% to 28.6% or an overall reduction in relativity of 55%.  The applicant argues that the starting point for consideration is Mr Scull’s salary relative to the rate for HSU Level 11 which applied before the HPR took effect, being a relativity of 51.97%.  The applicant argues that the respondent’s claim that Mr Scull has had the benefit over time of the general percentage increases in salary rates is irrelevant to the determination of whether there was merit to Mr Scull’s claim for an increase in his salary based on work value increases as Mr Scull received no more in percentage terms than any other employee covered by the HSU agreements when general percentage movements in salary rates were made.  The applicant submits that there has been no change to Mr Scull’s remuneration, notwithstanding an increase in the work value of the Position, other than general enterprise bargaining agreement increases and there is nothing in Mr Scull’s contract indicating that any part of his salary could be apportioned to any future increases in work value.  The effect of the respondent’s decision is that the work value increases are being absorbed into Mr Scull’s existing salary and there is no provision in his contract of employment express or implied that permits the respondent to do this.  Furthermore, the evidence shows that the HPR was a matter to be taken into account in any future determination of the remuneration attached to the Position.

25      The applicant argues that the status of the position has not been maintained given the significant reduction in the relativity of the remuneration paid to Mr Scull.  The applicant argues that Mr Scull had a reasonable expectation based on the statements made to him during the course of accepting the Position that the relativity of the Position with respect to positions that answered to his position would be maintained and Mr Scull went to considerable efforts to ensure that the respondent was aware of this and the respondent also agreed that it was important to maintain the status of the Position.  Whilst representations made by the respondent prior to the formation of the contract are not included as a term of his contract it does not necessarily follow that in determining the matter on the basis of equity, good conscience and the substantial merits that the Arbitrator should have no regard to these representations.  The applicant argues that it is recognised that relativities between positions are important in terms of the status and standing of positions and in providing a significant and substantial increase to positions that report to Mr Scull but providing no comparable increase in the remuneration paid to Mr Scull the respondent has significantly diminished the status and standing of his position with respect to positions reporting to him.

26      The applicant rejects the respondent’s claim that because Mr Scull was remunerated more than the Award rate of pay he should not be entitled to any increase arising out of an increase in work value to his position.  Mr Scull had bargained for a particular rate of pay and should have the benefit of the retention of the status of that bargain and Mr Scull’s salary should have been renegotiated in good faith within that context.  The applicant submits that the respondent’s actions in refusing to increase the salary of the Position reneges on the bargain that was originally made with Mr Scull and the respondent is obtaining a windfall gain on the basis that it maintains that Mr Scull’s salary is already enough.

27      The applicant argues that Mr Ross qualified his evidence about salary maintenance by saying that this would be the recommendation made to the Classification Review Committee and it cannot be assumed that Mr Scull would have been placed on salary maintenance.

28      The applicant argues that as it has instituted this application under s 80F(1) of the Act and it is not an application by a government officer then the Arbitrator’s broad jurisdiction is available to the Arbitrator.  The applicant submits that s 80E(1) of the Act provides that the Arbitrator has exclusive jurisdiction to inquire into and deal with any industrial matter relating to a government officer.  Mr Scull is a government officer and the industrial matter relates to the salary to be paid to him which is an industrial matter as defined in s 7 of the Act.  The applicant submits that s 80E(5) of the Act gives the Arbitrator power to review the respondent’s decision in relation to a matter of this nature and the applicant relies on [83] of the Full Bench decision in Director General of Health as the delegate of the Minister of Health v Health Services Union of Western Australia (Union of Workers) where Smith AP cast doubt on s 80E(2)(a) of the Act, which the respondent relies on for its argument that the Arbitrator lacks jurisdiction to deal with this application, having application to this matter.  The applicant argues that the respondent’s claim that the only way a government officer who is subject to an award or agreement who is dissatisfied with their remuneration can be addressed is by a review of their classification pursuant to s 80E(2) of the Act is incorrect as the industrial matter in this instance is the contract between Mr Scull and the respondent and the unfairness or otherwise not to increase Mr Scull’s remuneration under his contract and not a classification review.

29      The applicant argues the industrial agreements which have covered Mr Scull’s employment have facilitative clauses for the renegotiation of the terms of these agreements and they therefore contemplate additional matters and these industrial instruments have not settled all industrial matters in dispute between the parties.

30      The applicant rejects the respondent’s claim that the Arbitrator has limited power to award retrospectivity with respect to this application.  The applicant argues that the Arbitrator’s powers are broad and can vary or nullify and give retrospectivity to any decision.  As the change in the value of the work for the Position dates back to 2003 and the respondent did not finally decide this issue until 2009 it is unfair not to increase the quantum from this period onwards.  The applicant submits that Mr Scull has persistently and consistently pursued this matter with the respondent and the delays in progressing this issue are not of his making.  The Arbitrator is not enforcing an order or an award by awarding the quantum sought by the applicant but is only reviewing, nullifying, modifying or varying the respondent’s decision.  If retrospectivity is to be limited then it should apply at least from the date of the application.

31      In conclusion the applicant argues that the Arbitrator should find that the respondent’s decision to refuse to award an increase in the remuneration of the Position is unfair and unjust.  Work value changes to the Position have occurred and the value of this increase is being absorbed unfairly into Mr Scull’s existing salary.  The applicant therefore argues that it is fair, just and equitable for the Arbitrator to vary the decision of the respondent in the terms sought by the applicant.

Respondent

32      The respondent submits that the Full Bench was unanimous in finding that there was no term of Mr Scull’s contract that his salary would be maintained relative to his subordinates and no representation was made on behalf of the respondent that it would (see Director General of Health as the delegate of the Minister of Health v Health Services Union of Western Australia (Union of Workers) [79], [80], [94] and [95]).

33      Smith AP at [82] stated that the remaining matter for consideration, and which is remitted for further hearing, is:

… whether consequent upon the appellant implementing the outcomes of the Health Professional Work Value Review the appellant acted in a manner that was not fair, just or reasonable by refusing to award an increase in remuneration for the position held by Mr Scull.

34      The respondent submits that the outcome of the HPR resulted in those positions immediately subordinate to Mr Scull’s being increased by one classification level and this was not by way of any amendment to the Award but was the outcome of ‘Desktop Assessments’ of all positions classified above Level 7.  Mr Scull’s position was not within the scope of the HPR as his position was anomalous and he was paid above the remuneration available under the Award for his position, but was otherwise within the description of a specified calling for the purpose of the Award.  When an independent external review of the classification of Mr Scull’s position was undertaken the consultant concluded:

Consideration of the factors which contributed to an increase in work value for the Medical Physics Profession under the Health Professional Work Value Review supports an increase in classification to Level 12.  This classification is further supported by the alignment of the position with the ‘Health Professionals Descriptors’ for Level 12 and with increases in staffing levels.  Comparison with other positions currently classified Level 12 also supports a Level 12 classification for the review position.

35      The respondent submits that classification of the Position at Level 12 is consistent with classification of the equivalent position Head of Department, Medical Technology and Physics Department at Sir Charles Gairdner Hospital.  The respondent also relies on Mr Seeds’ evidence that Mr Scull is being paid significantly more than comparable positions and more than persons occupying Health Executive positions which involve management responsibilities across whole metropolitan regions, not just a hospital.  At the time of the hearing Mr Scull’s annual salary was $182,557 which is $42,199 more than the salary prescribed for Level 12 officers under the Award.  Level 12 is also seen as the most senior classification within the Health Professional’s classification structure contained in the Award.  It was therefore not unfair, unjust or unreasonable for the respondent to refuse to increase Mr Scull’s remuneration following the HPR.

36      The respondent rejects the applicant’s complaint that Mr Scull was treated differently and unfairly with respect to the outcome of the HPR given the way pay rates are structured in the public sector and how classification levels are allocated to positions.  The respondent argues the public sector has a hierarchical pay structure contained in relevant awards and industrial agreements, except for the most senior positions whereby remuneration is determined by the Salaries and Allowances Tribunal, and remuneration outside the limits of the relevant awards and industrial agreements is generally not permitted and is determined on the basis of work value.  In this respect the remuneration paid to Mr Scull is anomalous and without any obvious justification.  Classification is the process by which a level is allocated to a position according to the relative worth of the work associated with a position compared to like positions and from the level of classification flows the amount of remuneration associated with the position and is payable to the incumbent.  That is, what is fair remuneration for the work associated with the position and like positions having the same work value have the same level of classification and the incumbents of positions having the same level of classification, as a matter of fairness, are paid the same.

37      The HPR did not involve the maintenance of relativities to other classifications or positions and according to the work value of his position Mr Scull was and is being remunerated far above the classification his position was given and there is no evidence that the classification was incorrect.  Mr Ross gave evidence that where the incumbent of a position is paid in excess of the remuneration that would follow reclassification as a result of the HPR he or she would be placed upon salary maintenance until classification remuneration overtook the remuneration otherwise payable to the incumbent.

38      The respondent argues that although both parties initially submitted that Mr Scull’s employment was ‘award free’ it was only ‘award free’ in the sense that his remuneration was not set under the relevant award.  Otherwise, the Position was covered by the Award and within the specified callings clause.  The remuneration for the Position was complicated by the fact that Mr Scull’s predecessor was remunerated by alignment to an AMA award under an individual contract.  Initially an offer was made to Mr Scull under the HSU award and the $126,000 per annum salary ultimately offered to Mr Scull was the AMA award rate which would have applied to Mr Scull’s predecessor had he remained in the Position.

39      The respondent now raises the issue of the Arbitrator’s jurisdiction to hear this matter.  The effect of awards and industrial agreements made under the Act is to settle the industrial matters with which they deal in relation to the employees and the employers to whom they apply and it is not open to an employee who is dissatisfied with the conditions of employment available under an award or an industrial agreement that applies to him or her to seek special conditions that are outside the limits of the award or agreement that only apply to him or her.  There would be no point in making awards or industrial agreements if this avenue was to be available to individual employees which in effect is an award applying to one person.  It is open to an employer to provide individual employees with conditions different but better than those under an applicable award or agreement by contract as was done in relation to the remuneration payable to Mr Scull however, where there is a dispute in relation to that remuneration it may only be dealt with as a matter of contract, as it was at first instance.

40      The principles of classification are well known within the public sector and the applicant does not contend that there has been an error in classifying the office occupied by Mr Scull rather that he should be paid more.  Unless the claim for more is related to the remuneration structure imposed by the instruments which apply to Mr Scull’s employment there is no jurisdiction to entertain his claim except in so far as it is based upon contract.

41      The respondent argues that an award, by s 37(1) of the Act, extends to and binds all employees employed in any calling mentioned in the industry or the industries to which the award applies and to all employers employing those employees.  An industrial agreement, by s 41(4) of the Act, extends to and binds all employees who are employed in any calling mentioned in the industrial agreement in the industry or industries to which the agreement applies and by an employer who is a party to the industrial agreement.  Industrial agreements may only be varied by the making of a subsequent agreement under s 43 of the Act.  If a government officer whose employment is subject to an award or industrial agreement is dissatisfied with his or her remuneration, apart from contract, the only remedy he or she has is to make an application to the Arbitrator under s 80E(2) of the Act seeking to review the classification of the office he or she occupies and where an award or industrial agreement applies to a person’s employment, there is no jurisdiction in the Commission as a matter of fairness and equity to consider at large what remuneration should be paid to an employee.  That falls to be determined under and in accordance with s 80E(2) of the Act and the salary levels contained in the award or agreement.  The respondent argues that the facilitative provisions in the agreements applying to Mr Scull do not assist the applicant’s argument and the Arbitrator has no power in this instance to determine a salary subject to an award and an agreement.

42      The respondent maintains that Part II, Division 2 of the Act applies to the Arbitrator by virtue of s 80G(1) of the Act therefore retrospective orders can only be made from the date of the application and if an order can be made to vary Mr Scull’s remuneration the respondent submits that it can only be given limited retrospectivity.  The respondent relies on BHP Billiton Iron Ore Pty Ltd v Construction Forestry, Mining & Energy Union of Workers & Anor [2006] WASCA 49; (2006) 86 WAIG 1193 at [83] which stated:

The courts have frequently declared that, in the absence of some clear statement to the contrary, an Act will be assumed not to have retrospective operation.  Similarly, in the absence of some clear statement to the contrary, an Act will be assumed not to confer upon a court or tribunal the power to make orders that have retrospective operation.

The Appeal Court found the effect of s 44(13) of the Act together with s 39 only permitted a retrospective operation to be given to an order no earlier than the date of the application in respect to which the order was made.  Section 26(1)(a) of the Act does not provide an independent source of power to grant retrospective relief (see Robe River Iron Associates v Association of Drafting, Supervisory and Technical Employees of Western Australia (1987) 68 WAIG 11, 19, 20 and 22).

43      The issues referred for determination arise out of a s 44 conference and s 44(9) of the Act permits the Commission to determine those issues and make binding orders.  Section 44(13) provides that s 39 applies with such modifications as are necessary, to enable the Commission to make an order under this section.  By s 39(1) of the Act an award can only have a prospective operation which is in accord with the nature of arbitral proceedings which create new rights as opposed to providing for the enforcement of past or existing rights.  By s 39(3) the Commission may only give a retrospective operation to its awards by consent or if there are special circumstances making it fair to do so but in the absence of consent not prior to the date upon which the application was lodged in the Commission.  That date was 23 September 2008 and the respondent does not consent.  In any event the decision refusing Mr Scull an increase in his remuneration as a result of the HPR was made on 5 October 2009 and an order could not be made to operate earlier than that date.

44      The respondent argues that there is no unfairness or unreasonableness in the decision of the respondent to refuse to increase Mr Scull’s remuneration.  Mr Scull was also not treated any differently than any other employee under the HPR and he was already receiving significantly more remuneration than the work value of the Position.

45      The respondent maintains that the value of the work undertaken by Mr Scull was determined to be at Level 12 and therefore his salary should be retained at the existing level until increments in the Award catch up with his salary and this is what would normally occur in this type of circumstance even though the respondent concedes that a number of positions which report to Mr Scull had the value of the work reassessed and some of those who reported to him moved up another classification.

The respondent submits that the decision made with respect to Mr Scull is not unfair given the purpose of the HPR, the outcome in relation to Mr Scull and the value of the work he did, and its application to other employees when taking into account public sector processes.

Findings and conclusions

Credibility

46      I listened carefully to the evidence given by Dr Montgomery and closely observed him.  In my view he gave his evidence in a direct and considered manner and I find that his evidence was given honestly and to the best of his recollection.  I therefore accept his evidence.

47      This matter was remitted to the Arbitrator as constituted after the Full Bench issued the following orders:

1. The appeal is allowed.

2. The order made by the Public Service Arbitrator on 17 January 2011 [2011] WAIRC 00039; (2011) 91 WAIG 259 is suspended.

3. The matter is remitted to the Public Service Arbitrator at first instance for further hearing and determination.

48      The majority of the Full Bench (Smith AP and Beech CC) in Director General of Health as the delegate of the Minister of Health v Health Services Union of Western Australia (Union of Workers) stated the following with respect to the appeal before it at [78] – [83]:

It is common ground that the Public Service Arbitrator did not err in finding that the terms and conditions of Mr Scull’s contract of employment were contained in the letter of appointment dated 9 December 2002, the contract signed by Mr Scull on or about 23 December 2002 and the memoranda and emails exchanged between Mr Seeds and Mr Scull between 23 December 2002 to 8 January 2003.  When regard is had to that finding and the terms contained in these documents are analysed, it is clear that the terms of the contract in respect of salary increases were as follows:

(a) The position was not covered by the Award or any relevant industrial agreement.

(b) Any percentage increases that applied to the Award, the 2001 industrial agreement and any subsequent agreement would be applied to the salary paid to Mr Scull.

(c) If senior positions that report to the position held by Mr Scull were reclassified or were to receive additional remuneration which resulted in significant work value for the position held by Mr Scull, Mr Scull could renegotiate his contract.

(d) Any review of senior positions in the Department which were positions that reported to Mr Scull would include a review of his position.

When regard is had only to these documents, it was not open to find that it was a term of the contract that the status of the position held by Mr Scull as at the date of the contract would be maintained.  All of the discussions that took place between Mr Scull and the appellant’s representative prior to the entering into the contract between 23 December 2002 and 8 January 2003 were pre-contractual negotiations.  That is evident from the evidence given by Mr Scull and his summary.  It is clear in particular from the summary, that at its highest Mr Scull ‘expected’ that the relativity of the salary that would attach to his position would be maintained with the salaries of those senior positions that reported to him.  However, there is no record in the summary of any representation made to Mr Scull which could be construed as a representation made on behalf of the appellant that such a relativity would be maintained.

The evidence given by Mr Scull in his witness statement, orally and the record of negotiations in his summary does not support a finding that the appellant’s representatives made any representation that could be regarded as promissory that the relativity of his salary to those positions that reported to him would be maintained.  There was no such representation.  It was simply an expectation of Mr Scull.

For these reasons I am of the opinion that the Public Service Arbitrator erred in failing to have regard to the express terms of the contact which provided that Mr Scull was not entitled to automatically have his salary adjusted as a result of changes to the classifications or remuneration of the senior positions that reported to him as head of Department.

I do however agree with the submission made on behalf of the respondent that part of the industrial matter before the Public Service Arbitrator was whether consequent upon the appellant implementing the outcomes of the Health Professional Work Value Review the appellant acted in a manner that was not fair, just or reasonable by refusing to award an increase in remuneration for the position held by Mr Scull.  I also agree that it is open to hear and determine the application on these grounds and for this reason it is my opinion that the appeal should be allowed and the decision remitted to the Public Service Arbitrator for further hearing and determination.

Whilst the issues raised by the appellant in respect of the application of s 80E(2)(a) of the Act is not directly raised by the appellant in his ground of appeal, as the issue was ventilated by counsel it is appropriate to make some observations about whether s 80E(2)(a) of the Act has any application to the facts of the matter in this appeal.  Section 80E(2) of the Act makes it clear the jurisdiction under s 80E(2)(a) of the Act includes jurisdiction to deal with a claim in respect of the salary or range of salary allocated to an office occupied by a government officer.  However, it is apparent that s 80E(2)(a) of the Act is not concerned with the salary that attaches to the person who holds an office but to the office.  Section 80E(1)(a) (sic) of the Act contains a distinction between what may be colloquially described as a job (an office) and the person who holds that job (an officer).  This distinction is found not only in s 80E(1)(a) (sic) of the Act but in other provisions of the Act and the Public Sector Management Act 1984 (WA):  (see, for example, s 80I(1)(b) and s 80I(1)(c) of the Act).  The documents that contain Mr Scull’s terms of contract of employment attach to him personally and do not attach to the office held by him.  For this reason I am of the opinion that it is doubtful that s 80E(2)(a) of the Act has any application to the industrial matter raised in this appeal.

49      Kenner C stated the following with respect to the appeal at [89] - [106]:

In my view it was open to find that the negotiations between the respondent and appellant regarding his appointment to the position of Head of Department, which commenced in about April 2002, involved pre-contractual representations which were not intended to be promissory in character, objectively determined from the stance of a reasonable person: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41. 

Statements of parties to negotiations reflecting their subjective intentions and reasonable expectations, consistent with the parole evidence rule, are generally not admissible, nor of assistance, in construing the terms of a contract ultimately reduced to writing. Whilst the Commission is of course, not bound by the strict rules of evidence, nonetheless such evidence can sometimes distract attention from the real issues in dispute.

As a matter of broad principle, where parties record their agreement in writing, and such writing does not include a pre-contractual statement later alleged to be a term, this is strongly indicative of it not being enforceable as a term of the agreement.

In this case, there was no doubt from the evidence before the learned Arbitrator that the respondent had a desire and an expectation, that any salary relativity between his position, then under negotiation, and other senior positions within the Department, would be maintained.

However, ultimately, objectively considered, it is to the terms of the relevant written instruments, embodying the terms of the contract as finally agreed, that primary attention must be paid in ascertaining the rights and entitlements of the parties: Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 per Kirby J at 70.

The terms of the written agreement between the parties, does not reflect any undertaking that the respondent’s salary relativity will be maintained with other senior officers of the department.  Indeed, Mr Seeds’ reply of 6 January 2003 to the respondent, expressly denied that there was any such commitment other than an opportunity to renegotiate the contract, if certain preconditions were met.

There was also no reference in the written agreement as to the preservation of the status of the respondent’s position, relative to others, whatever ultimately, that might entail.

In contract law parlance, it is settled that an offer and acceptance must precisely correspond. A variation from the offer, in an acceptance, may result in any such acceptance being invalid. Any purported acceptance which accepts an offer in general terms, but with additions and qualifications, may in fact constitute a counter offer, open for acceptance by the other party: Carello v Jordan [1935] QSR 294.

It might be open to have concluded that the respondent’s memorandum of 23 December 2002 to the appellant, which sought “clarification” of some matters, in reality, constituted a counter offer which was not accepted by the appellant in its reply of 8 January 2003. Regardless of this however, the parties, by their conduct, entered into a contractual relationship of employment and have continued to do so for some years to date.  In these circumstances, the respondent must be taken to have accepted the terms as proposed by the appellant at the time.

Accordingly, with respect, I consider that the learned Arbitrator was in error in concluding that the status of the respondent’s position, and hence salary relativity to others in his Department, would be preserved, as a contractual term. As these findings were integral to the learned Arbitrator’s further consideration of whether any salary adjustment should apply to the respondent, the appeal should be allowed.

However, that is not the end of the matter. Whilst the appellant attempted to argue that the only issue before the learned Arbitrator was the terms of the respondent’s contract with the appellant, and whether it afforded him a contractual entitlement to a salary increase, in my view, that was not the totality of the dispute at first instance.

The application originally made by the respondent was for a compulsory conference pursuant to s 44 of the Act. The application referred to the review of health professionals work value in accordance with the provisions of the Hospital Salaried Officers Metropolitan Health Services Enterprise Agreement 2001.

Grounds advanced in support of the application, included allegations that the appellant had failed to deal with the respondent’s position in good faith and the appellant had dealt with the respondent in a manner which was harsh, unfair and oppressive: AB 5-8.

The Memorandum of Matters Referred for Hearing and Determination under s 44(9) of the Act, appearing at AB 15-17, makes it plain at par 1, that the dispute referred for arbitration included allegations that the respondent “has acted in a manner which is not fair, just and or reasonable by refusing to award an increase in remuneration for the position of Head of the Department of Medical Engineering and Physics at Royal Perth Hospital (post number: 103229)”.

Furthermore, the applicant’s outline of submissions at first instance, as set out at AB 172-185, also makes reference to the unfairness, harshness and unjustness of the appellant’s conduct towards the respondent, by denying him a salary review.

In my view therefore, the matter referred for hearing and determination under s 44(9) of the Act, was not confined to the contractual rights of the parties.  This is so, notwithstanding the fact that it appeared from exchanges between the parties and the learned Arbitrator, for example at AB 65-66, a focal point was the contractual arrangements between the appellant and the respondent.

The referral plainly raised matters going to discretionary considerations under s 26(1)(a) of the Act, as to whether, in accordance with equity and good conscience, the respondent should be granted the relief sought.

In these circumstances, it would be appropriate, that under s 49(5)(c) of the Act, the decision at first instance be suspended and the matter be remitted to the learned Arbitrator for further hearing and determination on the merits.

50      In summary, the Full Bench found that Mr Scull’s contract of employment with the respondent did not include a term that he was automatically entitled to have his salary adjusted as a result of changes to the classifications or remuneration of the senior positions which reported to him as head of department.  The Full Bench therefore allowed the appeal and remitted this application to the Arbitrator as currently constituted to hear further from the parties and to determine whether consequent upon the respondent implementing the outcomes of the HPR it acted in a manner that was not fair, just or reasonable by refusing to award an increase to the remuneration of the Position and whether according to equity and good conscience the respondent should pay Mr Scull the salary increase that he is seeking.

Preliminary issue - jurisdiction

51      When this matter was remitted back for further hearing and determination the parties agreed that the terms and conditions of Mr Scull’s employment with the respondent are covered by the Award and relevant industrial instruments operating in conjunction with the Award.  In the circumstances the respondent maintains that the Arbitrator does not have jurisdiction to deal further with this application as it argues that any dispute in relation to an over award payment which is the case in this instance, must be dealt with as a contractual issue.  The respondent also argues that because the Position occupied by Mr Scull is covered by a classification in the Award which contains the rate of pay on which the salary of the Position is based the only remedy a government officer whose salary is subject to an award has to vary his or her rate of pay is to make an application under s 80E(2) of the Act seeking a review of the classification of the office he or she occupies which this application does not seek to do.

52      The applicant argues that the Arbitrator has jurisdiction to deal with this application given the nature of the issue to be determined.  The applicant argues that even though Mr Scull’s terms and conditions of employment are covered by the Award and relevant industrial agreements the Arbitrator can deal with this application as it relates to a refusal to grant Mr Scull an increase to the salary of the Position consequent upon the respondent implementing the outcomes of the HPR.  The applicant argues that this issue is not about the enforcement of an over award contractual entitlement but it relates to whether it is unfair and unjust for the respondent not to increase the rate of pay of the Position by the quantum it is seeking in order to retain the status of the Position, when taking into account movements in the salaries paid to positions reporting to the Position.  The applicant also argues that as it has instituted this application under s 80F(1) of the Act the Arbitrator’s broad jurisdiction is therefore available to the Arbitrator.  The applicant also argues that the Arbitrator can deal with the remedy sought by this application, pursuant to the terms of s 80E(1) of the Act when read in conjunction with s 80E(5) of the Act.

53      After carefully considering the submissions of the parties with respect to jurisdiction I find that the Arbitrator can consider and determine this application given the nature of the dispute with respect to this application.

54      Section 80F(1), (2) and (3) of the Act read as follows:

(1) Subject to subsections (2) and (3) an industrial matter may be referred to an Arbitrator under section 80E by an employer, organisation or association or by the Minister.

(2) A claim mentioned in section 80E(2)(a) may be referred to an Arbitrator by the government officer concerned, or by an organisation on his behalf, or by his employer.

(3) A claim mentioned in section 80E(2)(b) may be referred to an Arbitrator by an organisation or an employer.

55      Section 80E(1) and (2)(a) of the Act read as follows:

(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

56      Section 80E(5) of the Act reads as follows:

(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.

57      The applicant is seeking a review of the respondent’s decision not to increase Mr Scull’s salary to reflect work value increases to the Position since 2003 and is claiming this relativity differential on behalf of Mr Scull.  I find that Mr Scull is a government officer within the meaning of s 80C of the Act and that the issue before the Arbitrator relates to an industrial matter as it concerns a dispute over the amount of Mr Scull’s salary.  I also find that the applicant is an organisation capable of making this application pursuant to s 80F(1) of the Act.  It is also the case and I find that the Arbitrator’s powers under s 80E(5) of the Act include the power to review, nullify, modify or vary an employer’s decision.  In the circumstances I find that the remedy being sought by the applicant can be considered and determined pursuant to s 80E(1) and s 80E(5)of the Act.  I also find that this application is not one to be progressed under s 80E(2)(a) of the Act as this application seeks an adjustment to the total salary paid to Mr Scull as the occupant of the Position and is not an adjustment to the salary of the classification in the Award on which the Position is based.

58      I reject the respondent’s argument that as the Position is covered by the Award this application can only be dealt with as a contractual issue.  The matter remitted to the Arbitrator for determination relates to the fairness of the respondent’s conduct in refusing to award an increase to Mr Scull’s total salary subsequent to the respondent agreeing that Mr Scull could renegotiate an increase to his salary if work value changes occurred and the remedy being sought by the applicant therefore does not relate to the enforcement of a benefit under Mr Scull’s contract of employment with the respondent.

Did the respondent act in a manner that was unfair, unjust and unreasonable by refusing to award a salary increase to Mr Scull?

59      When taking into account the terms of s 26(1)(a) of the Act and the duty on the Arbitrator to consider the relief being sought on the basis of equity and good conscience and after carefully considering the facts relevant to these proceedings I find that as the occupant of the Position Mr Scull should be paid the increased salary the applicant is seeking on his behalf by way of this application as it is my view that Mr Scull was treated unfairly and unreasonably when the respondent refused to increase Mr Scull’s salary after the work value of the Position increased.

60      I made the following findings in my original decision which were not overturned on appeal (see Health Services Union of Western Australia (Union of Workers) v Director General of Health as the delegate of the Minister of Health (2010) 91 WAIG 234):

80 Given the above exchange, I find that after Mr Scull raised this issue with Mr Seeds, he confirmed that it was open for Mr Scull to negotiate an increase to the salary of the Position if work value increases to senior positions within the Department impacted on the work undertaken by the Head of the Department, that is the Position. …

…

86 It was also not in dispute and I find that after the work value of the Position occupied by Mr Scull was not reviewed as part of the HPR process, Mr Scull asked the respondent to adjust the relativity of his salary with respect to other senior positions within the Department in consideration of the outcome of the HPR on 24 November 2005. …

…

91 Mr Seeds’ memorandum dated 6 January 2003 to Mr Scull, which I have found forms part of Mr Scull’s contract of employment, states that Mr Scull was not automatically entitled to have his salary adjusted as a result of internal changes to the work value of senior positions and any increase to the salary of the Position, apart from automatic salary adjustments, was dependent on work value changes to the Position.  At the time Mr Seeds also accepted the proposition put to him by Mr Scull that if internal relativities with respect to senior positions within the Department changed and the value of work of the Position increased then Mr Scull could renegotiate his salary with the respondent. …

61      It was not in dispute that in January 2003, through Mr Seeds, the respondent agreed that Mr Scull could renegotiate his contract if senior positions which reported to him were reclassified and received additional remuneration as a result of work value increases if this impacted on the work undertaken by the Position.  It was also not in dispute that after the respondent completed a review of the work value of positions which reported to the Position as part of the HPR, a number of positions were found to have an increased work value and the salaries of these positions were increased.  It was also not in dispute that after this application was lodged a review of the work value of the Award classification on which the Position is based took place and this position was reclassified on or about May 2009 from a Level 11 position to a Level 12 position, with effect from 3 August 2003, based on an increase to the work value of the Position.  It was also the case and I find that on or about 5 October 2009 the respondent advised Mr Scull that notwithstanding the increase to the work value of the Position since August 2003 it declined to pay Mr Scull the salary increase that he was seeking to restore the relativity of the Position to other senior positions within the Department.

62      I find that it is unfair that the increased work value of the Position which resulted in the Position being reclassified, is not being recompensed by the respondent and is being absorbed into the existing salary of the Position.  Even though Mr Scull is in receipt of a salary which is significantly in excess of a Level 12 position under the Award I find that it is unjust that the salary of the Position was not increased to reflect work value changes to the Position as it denies Mr Scull a salary increase which is open to other employees when changes to the work value of their positions take place.  I also find that the respondent’s refusal to increase Mr Scull’s salary in light of work value changes to the Position and senior positions reporting to Mr Scull is unfair because Mr Scull and the respondent had an express agreement, which formed part of Mr Scull’s contract of employment, to the effect that if positions that reported to the Position were reclassified and this resulted in the value of the work of the Position increasing then Mr Scull could renegotiate the level of remuneration of the Position.  This agreement was also confirmed by Dr Montgomery in his memorandum to Mr Scull dated 10 July 2006 (see paragraph 12).  In reaching the conclusion that it is unfair that Mr Scull’s salary should absorb a salary increase related to work value changes I note that the respondent agreed to pay Mr Scull the market rate for the Position when he commenced in the Position which was higher than the relevant Award rate at the time and by not increasing the salary of the Position to reflect work value changes to the Position I find that this undermines the integrity of this rate of pay.  It is also the case that Dr Montgomery confirmed that duties required of the Position were more complex than a similar Level 12 position at Sir Charles Gairdner Hospital and that is why Mr Scull was and has been paid a higher salary than the position at Sir Charles Gairdner Hospital.

63      I find that the status of the Position relative to other senior positions which report to it has diminished as a result of the respondent’s refusal to pay Mr Scull the salary increase he is seeking and I find that the respondent’s actions in this regard are unfair as this is contrary to undertakings given to Mr Scull when he commenced in the Position.  In my view there is a relationship between the level of the salary paid to the Position when compared to the salary of positions which report to it and I find that any diminution of this differential negatively impacts on the status of the Position.  Furthermore, Dr Montgomery confirmed that when Mr Scull was offered the Position, he assured him that the status of the Position would be retained and he gave evidence that the remuneration of a position and the seniority of a position with respect to positions which report to it are relevant to the status of a position.

64      Dr Montgomery gave the following evidence during cross-examination:

THE WITNESS:   Well, all the way through this, in all my discussions with Ed, I had indicated that the - the status of the position, and including remuneration, would be maintained at the previous level.  So on every occasion I met with Ed, that’s the position I had affirmed with him.

(Transcript p 65)

I - I appreciate that.  But I guess the point remains that - that - well, I suppose the issue is, would you agree that seniority could be reflected in the amount of money paid to a particular person?---Definitely.

So with regard to that, would you then agree that retaining the seniority to the position is part of retaining the status to other positions?---Well, that - the flavour of status within a hospital environment more relates to the clinical status and the standing within the hospital community, not necessarily financial.

But it can include that as well?---It - of course it can.

Yes.  So would you agree with the proposition then that maintaining the remuneration with respect to the positions that report to the head of department is an important - is important in terms of maintaining status?---My own personal belief is yes, …

(Transcript pp 71-72)

65      I reject the respondent’s argument that the Arbitrator does not have the power to award the full quantum being claimed by the applicant on behalf of Mr Scull given the terms of s 44(13) of the Act when read in conjunction with s 39 as the quantum the applicant is seeking on behalf of Mr Scull includes salary increases prior to the date of the lodgement of this application.  This claim is for the relativity differential which currently exists between the Position and other senior positions which report to the Position and this differential has been accumulating since August 2003.  I find that as what is being sought by the applicant is the current salary differential between the Position and other senior positions which report to it, the remedy being sought by the applicant does not involve retrospectivity.  If I am wrong in reaching this conclusion, which I do not concede, I find that the relativity differential that is due to Mr Scull should be the quantum which has accumulated since the date of this application, which is 23 September 2008, given Mr Scull’s repeated attempts to resolve the dispute about his salary since 2005 and the tardy manner in which this issue was dealt with by the respondent.

66      I have already heard from the parties and determined the quantum due to Mr Scull with respect to the claim made by the applicant on behalf of Mr Scull.  Following are the orders, which were suspended by the Full Bench:

1. THAT the salary of the position of Head of Department, Medical Engineering and Physics (position number 103229) at Royal Perth Hospital held by Mr Edward Scull be increased to reflect the relativity of this position to other senior positions within the Department of Medical Engineering and Physics at the level it was when Mr Scull commenced employment in the position.

2. THAT the salary levels contained in Column 3 of the table in the Internal Memorandum to the Chief Executive South Metropolitan Area Health Service from Mr Gregory dated 2 September 2009 be applied to the position of Head of the Department, Medical Engineering and Physics at Royal Perth Hospital held by Mr Scull.

As the quantum in Order 2 was not appealed by the respondent I find that it is appropriate to issue an order that the respondent apply the salary differential as contained in this order to the Position.

67      A minute of proposed order will now issue in these terms.