DISPUTE RE PAYMENT OF PRIVATE PRACTICE COST ALLOWANCE AS PER CLAUSE 23(7) OF WA HEALTH SYSTEM MEDICAL PRACTITIONERS AMA INDUSTRIAL AGREEMENT 2016

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2022 WAIRC 00763

DELIVERED : TUESday, 18 October 2022

FILE NO. : PSAC 9 OF 2022

Applicant

AND

Child and Adolescent Health Service (CAHS)

Respondent

CatchWords : Industrial Law (WA) – Public Service Arbitrator – Section 44 application –Dispute regarding Private Practice Cost Allowance – Application for dismissal – Jurisdiction of the Arbitrator – Enforcement of an industrial instrument – Interpretation of an industrial instrument – Contravention of ‘no further claims’ clause of the relevant industrial instrument – Judicial or arbitral powers – Section 44 does not give the Arbitrator judicial power or jurisdiction to enforce industrial instruments nor to merely construe them – Application dismissed for want of jurisdiction

Legislation : Industrial Relations Act 1979 (WA) 

Result : Application dismissed for want of jursdiction

Representation:

Applicant : Ms K Taylor

Respondent : Mr J Carroll of counsel

Case(s) referred to in reasons:

Civil Service Association of Western Australia Incorporated v Mr Neil Fernandes Managing Director Central Institute of Technology [2016] WAIRC 00250; (2016) 96 WAIG 527

Crew and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623

United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2015) 95 WAIG 13

Reasons for Decision

Ex Tempore

1         This matter was commenced by the Australian Medical Association (WA) Incorporated (AMA) as an application for a compulsory conference under s 44 of the Industrial Relations Act 1979 (WA) (IR Act). The respondent, Child and Adolescent Health Service (Health Service) seeks the dismissal of the claim on the basis the Public Service Arbitrator (Arbitrator) is without jurisdiction to deal with the matter under s 44, because it is, in substance, either:

(a) a claim for enforcement of an industrial instrument, which is a claim within the exclusive jurisdiction of the Industrial Magistrates Court under s 83 of the IR Act; or,

(b) a claim for interpretation of an industrial instrument which needs to be made under s 46 of the IR Act and which would require the joinder of all named parties to the industrial instrument; or

(c) if neither of the above, a claim that contravenes the ‘no further claims’ clause of the relevant industrial instrument.

2         In order to determine the dismissal application, I need to characterise the essential nature of the proceedings: Crew and Sons Pty Ltd v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1989) 69 WAIG 2623 at 2628.

3         The Arbitrator’s powers under s 44 are arbitral, not judicial powers. The exercise of judicial power involves the ascertainment, declaration and enforcement of rights and liabilities of parties as they exist or are deemed to exist when proceedings are instituted. Arbitral powers are directed at whether rights and obligations should be created, consistent with the objects of the IR Act.

4         The Health Service’s counsel rightly acknowledged that an industrial dispute might be within the arbitral jurisdiction and invoke only arbitral powers, even if it involves interpreting an industrial instrument along the way. This was recognised by Smith AP in United Voice WA v The Director General, Department of Education [2014] WAIRC 01361; (2015) 95 WAIG 13 at [100] and [107].

5         The relief the AMA seeks is the starting point for determining whether the essential nature of the present application is such as to invoke judicial or arbitral powers. The relief must be connected to the industrial dispute, so the industrial dispute itself also needs to be analysed.

6         The AMA argued that the application essentially only seeks the involvement of the Arbitrator to assist in resolving an industrial dispute by conciliation and in accordance with the dispute settlement procedure set out cl 54 of the WA Health System ‑ Medical Practitioners ‑ AMA Industrial Agreement 2016 (Industrial Agreement), which was the industrial instrument that was in operation when the application was filed.

7         This does not answer the problem of the Arbitrator’s jurisdiction. First, even if the AMA is only seeking conciliation, it has done so by invoking s 44 of the IR Act. Crewe and Sons Pty Ltd and United Voice WA establish that s 44 does not give the Arbitrator judicial power or jurisdiction to enforce industrial instruments nor to merely construe them.

8         Second, a dispute resolution clause in an industrial agreement cannot confer jurisdiction which the Arbitrator does not otherwise have: Civil Service Association of Western Australia Incorporated v Mr Neil Fernandes Managing Director Central Institute of Technology [2016] WAIRC 00250; (2016) 96 WAIG 527.

9         The remedies sought in the application are:

(a) a conference to assist resolve the ‘…longstanding … backpay dispute, as per clause 59 of the [Industrial] Agreement’; and

(b) ‘Any other recommendations or orders the Commission sees fit in the interests of supporting ongoing compliance with the Agreement and expeditious resolution of any disputes between the parties in future’.

10      The application did not merely seek conciliation. The relief extended to seeking orders in the nature of enforcement. In particular, reference to compliance suggests the invocation and determination of vested rights and obligations.

11      To understand this relief, further context is required about the nature of the dispute. The application was made ‘…on behalf of a number of Senior Doctors who continue to be denied back‑pay for accepted claims … [for the Private Practice Cost allowance under] clause 23(7)…’. The factual background in the application refers to a particular doctor whose claims for the cl 23(7) allowance this year were accepted, but had claims for previous years denied. It also sets out a history of correspondence disputing the Health Service’s decision and seeking to resolve the dispute. The correspondence dates from November 2021 to July 2022, that is, about eight months of to‑ing and fro‑ing.

12      The last substantive word or words on the matter were in a letter from the AMA President of 28 June 2022 and an email in response from the Health Services’ Manager, Workplace Relations, dated 4 July 2022. What emerged from that exchange is that there was a dispute between the parties involving issues of enforcement of the Industrial Agreement, and issues of construction of the industrial agreement. But the dispute also involved disparity in the application of the industrial agreement across health service providers, issues of timing and delays, and grievances about the lack of or quality of communications to resolve these issues.

13      So, from the correspondence attached to the application, it is apparent that the parties were in dispute about the construction of cl 23(7) of the Industrial Agreement and other industrial issues not strictly to do with rights and entitlements.

14      Of these issues, which does the present application relate to? I pressed Ms Taylor for the AMA about this. She confirmed that the AMA is not seeking any relief which would go beyond the rights, entitlements and obligations of the relevant clause in the industrial agreement. She said that the relief the AMA would seek if the dispute was not resolved by conciliation, would be the consistent application of the clause across health service providers and back paid to the doctors on whose behalf the claim is brought.

15      Ms Taylor also said that in order to be satisfied that such relief could be granted, the Arbitrator would need to determine the meaning of the relevant terms of the Industrial Agreement, and whether the respondent had an obligation to pay. This means that the essential nature of the application is for enforcement of the industrial agreement. Ms Taylor, to her credit, did not try to squeeze a round peg into a square hole. She frankly stated that the dispute is essentially about the round peg ‑ that is, the rights and obligations under the agreement.

16      In Crewe and Sons Pty Ltd, the Full Bench repeatedly emphasised that s 44 should not be read down. It also said, at 2628, that the powers in s 44 are available unless it is unequivocally apparent that the matter is one that should be dealt with under s 46, s 83 or another special power conferring section of the IR Act.

17      There may be occasions when the powers in s 44 are available, particularly prior to referral for arbitration, when industrial disputes involve issues about the construction and enforcement of industrial instruments as part of an industrial dispute. However, given the AMA’s frank characterisation of the dispute and what is ultimately sought by the application, it is unequivocally apparent that the matter should be dealt under s 46 or s 83 of the IR Act. Its essential character is not within the arbitral jurisdiction, and, therefore, not capable of being referred for arbitration under s 44.

18      I will accordingly grant the Health Service’s application and dismiss the proceedings for want of jurisdiction.