BAFFIS v MACQUARIE HEALTH SERVICE

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40525/97 MASON P MEAGHER JA STEIN JA Thursday 29 July 1999

Gwenyth Hazel BAFFIS v MACQUARIE HEALTH SERVICE & ANOR The appellant was unsuccessful in her application to be appointed to the position of Manager, Nursing Services at Dubbo Base Hospital. She appealed against the appointment of another candidate to the Government and Related Employees Appeal Tribunal ("the Tribunal") relying upon s20(b) of the Government and Related Employees Appeal Tribunal Act 1980 ("the GREAT Act"). The Tribunal dismissed this appeal for want of jurisdiction.

The Tribunal declined jurisdiction on 24 July 1997 because s20(b) of the GREAT Act provides that the Tribunal only has jurisdiction in relation to appointment disputes concerning candidates who are both employees of the same employer. The submission by the appellant that the two women had a common employer, the Crown, was rejected and the two applicants were held to be employees of two different area health service employers.

The appeal is in the nature of a test case and is limited to error of law in the rejection of jurisdiction by the Tribunal.

HELD by Mason P (Meagher and Stein JJA concurring), dismissing the appeal with costs:

The fact that the parties were both "employed in the service of the Crown" is not enough to found jurisdiction because the appellant did not have an employee/employer relationship with the same employer as the respondent and this is a jurisdictional condition under s20(b) of the GREAT Act. The appellant's construction and interpretation of s4 and s20(b) of the GREAT Act is incorrect in textual and policy terms.

Baldestowe v Brown (1990) 19 NSWLR 459 (applied); Mounsey v Findlay (1993) 32 NSWLR 1 (distinguished); Holly v Director of Public Works (1988) 14 NSWLR 140 (followed)

The appellant's alternative submission that the common employer is the Health Administration Corporation is rejected by implication derived from the definition of "employee" in s4(1) of the GREAT Act. Leave to reopen Baldestowe on this issue is declined.

Public Hospitals Act 1929, Area Health Services Act 1986, Health Administration Act 1982 (discussed)

The Tribunal properly held that it was not its prerogative to determine whether the reasoning in Mounsey should lead to the overruling of Baldestowe. It is open for Parliament to amend this complex legislation if these anomalies in application continue.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40525/97 MASON P MEAGHER JA STEIN JA

Gwenyth Hazel BAFFIS v MACQUARIE HEALTH SERVICE & ANOR

1 MASON P: At issue is a claim that the Government and Related Employees Appeal Tribunal ("the Tribunal") erred in law when it dismissed the appellant's appeal to it for want of jurisdiction. 2 The appellant was unsuccessful in her application to be appointed to the position of Manager, Nursing Services at Dubbo Base Hospital. The successful applicant was Ms Gossip. The appellant appealed to the Tribunal relying upon s20(b) of the Government and Related Employees Appeal Tribunal Act 1980 ("the GREAT Act"). 3 Section 20(b) provides: Subject to and in accordance with this Part: … (b) an employee, not being an officer within the meaning of section 3 (1) of the Public Sector Management Act 1988, may appeal to the Tribunal against a decision of the employee's employer to appoint or recommend the appointment of another employee of that employer to fill a vacant office, on the ground that the appellant is, having regard to the provisions of any Act, statutory instrument, industrial award or agreement or any advertisement published in good faith in relation to the vacant office, being an Act, statutory instrument, industrial award or agreement or advertisement which is required to be applied or taken into consideration by the employer in respect of an appointment to the vacant office, more entitled to be appointed to the vacant office than the employee in whose favour the decision was made. (emphasis added) 4 The words I have emphasised express a clear legislative intent that the successful and unsuccessful candidates must each be employees of the same employer. The terms "employee" and "employer" are defined in s4. 5 The Tribunal (constituted by Mr J L Lynn) declined jurisdiction on 24 July 1997. It did so because Ms Baffis and Ms Gossip were held to be employees of different employers and therefore the appeal to the Tribunal lay outside s20(b) which, it was common ground, was the only relevant provision. Ms Baffis was employed by the Macquarie Area Health Service (she was in fact acting in the position the subject of the appeal) and Ms Gossip was employed by the Mid Western Area Health Service. 6 The Tribunal rejected the submission that the two women had a common employer, the Crown. 7 Counsel for the appellant conceded before the Tribunal that this Court's decision in Baldestowe v Brown (1990) 19 NSWLR 459 presented an obstacle to the argument. It was however submitted that jurisdiction was established by the reasoning in this Court's later decision in Mounsey v Findlay (1993) 32 NSWLR 1. Having decided that the case was on all fours with Baldestowe, the Tribunal properly held that it was not its prerogative to determine whether the reasoning in Mounsey should lead to the overruling of Baldestowe. 8 The Tribunal summarised its decision as follows: As a result the present state of the law appears to be that there is a right of appeal to the Tribunal available to an employee of an area health service against the appointment of another employee of the same area health service to a position within such area health service. However, if either employee is attached to another area health service no such right of appeal is available.

9 The Tribunal directed its Registrar to forward a copy of the decision to the Minister together with the Tribunal's recommendation that consideration be given to amending the GREAT Act to make it clear that a right of appeal is available against appointments which are contested by employees who work within different area health services. Presumably this was done. However, there has been no legislative amendment and it therefore falls to this Court to determine whether the Tribunal erred in law (cf s54) in rejecting jurisdiction. Since the appeal is limited to error of law, the question of jurisdiction is to be determined upon the proper construction of the legislation applicable at the time of the impugned decision (Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234 at 250). 10 The appeal appears to have been treated as a test case. Although filed in August 1997, no application was made to expedite the hearing.

The appellant's argument in brief 11 The appellant submits that, for the purposes of the GREAT Act, she was an employee "employed in the service of the Crown". She relies upon that part of the extended definition of "employee" in s4(1) which refers to: (e) a person (not being a person to whom paragraph (a), (b), (c), (c1) or (d) applies) who is employed in the service of the Crown but not in the Public Service or by an employing authority.

12 The appellant says that she was "employed in the service of the Crown", notwithstanding that her immediate employer was the Macquarie Area Health Service. She relies upon the reasoning in Mounsey. 13 The appellant then points to the corresponding definition of "employer" in the same subsection: employer means - … (e) in relation to an employee of the class referred to in paragraph (e) of that definition - (i) … (ii) for the purposes of those provisions of this Act relating to the making of appeals and the hearing of appeals - the person in whose service the employee is employed.

14 The appellant submits that the words "the person in whose service the employee is employed" means, in effect, "the Crown". The upshot is that persons who are employees by virtue of par (e) of the definition of "employee" satisfy the requirement of common employment in s20(b). 15 I flag this lastmentioned proposition as the essential fallacy in the appellant's case. It will take some detail to explain why that is so.

The decision in Baldestowe 16 Baldestowe involved employees of two different area health services. Mr Baldestowe was an employee of the Western Sydney Area Health Service at Mount Druitt Hospital and he had been appointed to the position of Chief Medical Technologist at that hospital. Ms Brown was employed by the Central Sydney Area Health Service and she had been an unsuccessful candidate. She appealed to the Tribunal, invoking s20(b). The Tribunal held that it had jurisdiction to entertain her appeal, but that decision was set aside on appeal to this Court. 17 Samuels AP and Priestley JA agreed with Handley JA. The steps in Handley JA's reasoning may be summarised as follows:

(a) The Western Sydney Area Health Service and the Central Sydney Area Health Service were each constituted pursuant to the Area Health Services Act 1986 . Each was a body corporate controlled by an area health board with functions that included the management of hospitals under its control.

(b) Section 21(1) of the Area Health Services Act empowered an area health service to appoint and employ such employees as may be necessary for the purpose of exercising its functions.

(c) Handley JA referred to s11(1)(e) of the Area Health Services Act, which provided that an area health service does not represent the Crown. He compared this with other sections which gave extensive ministerial control over area health service boards. However, he found it unnecessary to decide whether an area health service represented the Crown for the purposes of the GREAT Act.

(d) Even if both parties were "in the service of the Crown" for the purposes of par (e) of the definition of "employee" , they were held to lack a common "employer" in the light of the corresponding definition of "employer" . Ms Brown's employer was the Central Sydney Area Health Service and Mr Baldestowe's employer was the Western Sydney Area Health Service.

(e) Handley JA then addressed an argument which had found favour in the Tribunal in Baldestowe . It was that the two parties' common employer was the Health Administration Corporation, by virtue of s26(3) of the Area Health Services Act . That subsection provided: The …Corporation shall, for the purpose of making any determination under subsection (2) or of any proceedings relating to employees of area health services, held before a competent tribunal having power to deal with industrial matters, be deemed to be the employer of the employees of area health services. Handley JA held that this subsection did not apply, for two reasons: (i) GREAT was not a "competent tribunal" in the instant case, because its essential requirement of a common employer was not met. (I shall call this the "circularity ground");

(ii) The reference in s26(3) to "a competent tribunal having power to deal with industrial matters" was a reference to an industrial tribunal with general jurisdiction over industrial matters, and GREAT was not such a body. (I shall call this the "industrial matters" ground.) Handley JA supported this interpretation of s26(3) by reference to the legislative history of that provision (see at 464-5). This history included reference to corresponding provisions of the Public Hospitals Act 1929, especially s40BA(3). 18 It can therefore be seen that Baldestowe assumed that a person in the present appellant's situation was prima facie "employed in the service of the Crown" for the purposes of par (e) of the definition of "employee" in s4(1) of the GREAT Act. Nevertheless, that Act (read with the Area Health Services Act 1986) deemed the parties' employers to be distinct where two different area health services had employed them.

The decision in Mounsey 19 In Mounsey the appellant to the Tribunal (Mr Findlay) was an employee of the same area health service (Illawarra Health Service) as that which employed the persons whose appointment he challenged, both after and (it would appear) before their promotion. The Tribunal held that Mr Findlay's appeal to it pursuant to s20(b) was competent. That decision was upheld in this Court. 20 The leading judgment is that of Clarke JA with whose reasons Priestley JA and Cripps JA agreed. Priestley JA added some remarks which are of present relevance. Clarke JA accepted that Mr Findlay was an employee of the Illawarra Area Health Service. Nevertheless, he held that Mr Findlay was "in the service of the Crown". His Honour's reasoning involved the following steps: (a) A person may be in the service of the Crown while employed by a particular person or body (see Holly v Director of Public Works (1988) 14 NSWLR 140 at 151);

(b) An area health service constituted under the Area Health Services Act 1986 was not itself the servant or agent of the Crown. Clarke JA applied the express terms of s11(1)(e) observing that this was the point which Handley JA had considered it unnecessary to decide in Baldestowe (par 17(c) above);

(c) Nevertheless, the ultimate issue remained that of deciding whether Mr Findlay was employed in the service of the Crown. The situation of his immediate employer was not determinative. Clarke JA referred (at 7-9) to several provisions in the Area Health Services Act before concluding (at 9) that the employees were themselves "employed in the service of the Crown" for the purposes of par (e) of the definition of "employee" in the GREAT Act. (I explain below the essential reasoning that led to this conclusion.) 21 It is important to observe that the only and the critical issue in Mounsey was whether Mr Findlay was employed "in the service of the Crown" within the meaning of par (e) of the definition of "employee" in s4(1) of the GREAT Act. Since he and the fellow employees whose promotion he sought to challenge were all employees of a common employer, the Illawarra Health Service, there was no need to consider the application of par (e)(ii) of the definition of "employer". This, to my mind is a vital distinction between Mounsey on the one hand and Baldestowe and the present case on the other. 22 There were three places in Mounsey where aspects of Baldestowe were considered. 23 I have already referred to the first. Clarke JA expressed a view on the point left undecided by Handley JA as to the relationship between an area health service and the Crown. Clarke JA held that s11(1)(e) of the Area Health Services Act 1986 was determinative, and that an area health service was a servant or agent of the Crown, even for the purpose of legislation other than that Act, ie for the purposes of the GREAT Act. This conclusion was not, however a vital step in the reasoning in Mounsey, nor does it cast light on the issues presently before this Court. 24 Secondly, Clarke JA expressed himself in disagreement of one aspect of Handley JA's reasoning in Baldestowe, namely the "industrial matters ground" referred to in par (e)(iii) of my summary of the reasoning in Baldestowe. Clarke JA was considering the impact of s26(3) of the Area Health Services Act 1986 (set out at par 17(e) above), which deemed the Health Administration Corporation to be the employer of the employees of area health services for the purpose of any proceedings relating to the employees of area health services held before a competent tribunal having power to deal with industrial matters. Clarke JA expressed the view (at 9) that the definition of "industrial matters" (defined with modifications in terms of s5 of the Industrial Arbitration Act 1940 in s26(1) of the Area Health Services Act) was "wide enough to comprehend questions concerning discipline and promotion". Clarke JA added (at 9): In these circumstances were it not for the decision in Baldestowe I would be disposed to think that the Health Administration Corporation should be deemed to be the employer of the employees of Area Health Services for the purposes of proceedings before the GREAT Tribunal…. However, the respondent did not seek leave to argue that Baldestowe should not be followed and in these circumstances the conclusion of the Court in that case that the Health Administration Corporation was not the employer of the employees working for area health services should be accepted. What, however, is apparent from my brief reference to various sections of the Act is that although employees may be employed by the Area Health Service, which is not a servant or agent of the Crown, the persons actually employing them would, either directly or indirectly, be under total ministerial control. More importantly their conditions of employment are regulated by a servant or agent of the Crown and they are deemed to be in the employ of that body for the purposes of determinations as to their conditions of employment and appearances in proceedings before a competent tribunal having power to deal with those conditions of employment. The second paragraph of this passage shows two matters that are relevant to the present appeal.

First, Clarke JA's decision that employees of area health services were "in the service of the Crown" was not based upon them being deemed to be employees of the Health Administration Corporation. Rather, it was because of a range of matters demonstrating that the employees were, in the final analysis, subject to ministerial direction.

Secondly, the reference back to Baldestowe in the first paragraph of the passage quoted was necessarily obiter . This contrasts with Handley JA's expression of a contrary view in his "industrial matters" ground which, although one of two alternative reasons, was an essential step in his and the Court's reasoning in Baldestowe (cf Commissioner of Taxation (NSW) v Palmer [1907] AC 179 at 184-5, Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 at 25, MacAdam and Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia 1998, pars [3.29]-[3.32]). 25 The third point of reference back in Mounsey to Baldestowe appears in the judgment of Priestley JA. In Mounsey Priestley JA and Cripps JA agreed with the reasons of Clarke JA. Priestley JA recognised that he had been party to the Court's decision in Baldestowe. Accordingly, he explained in his own words why he did not think that the decision in Mounsey was inconsistent with that of Baldestowe. That distinction lay in the fact that in Baldestowe the intending appellant was not an employee of the Health Service of which the respondent was an employer, and therefore was not "another employee of that employer" within the meaning of s20(b) of the GREAT Act. Priestley JA added (at 3): That barrier to jurisdiction does not exist in the present case where the parties are all employees of the same Health Service.

The decision in the present case turns upon the point that, for the reasons explained by Clarke JA, the employees, as well as being in an employee/employer relationship with the Health Service are also "employed in the service of the Crown" within the meaning of s4(1)(e) of the Tribunal Act. For the reasons given by Clarke JA it follows from that conclusion that the Tribunal had jurisdiction to entertain the appeal. The fact that, pursuant to this Court's view in the present case, the parties in Baldestowe were likewise "employed in the service of the Crown", was not enough to found jurisdiction in that case, because of the barrier to jurisdiction already mentioned, that the intending appellant did not have an employee/employer relationship with the same employer as the respondent, which the provision relied on in that case required as a condition of jurisdiction.

It may be that the legislature intended to bring about the differing results which Baldestowe and the present case demonstrate, although the circumstances do not present any obvious difference of significance. On the other hand the differing results may stem simply from a quirk in draftsmanship. The position seems to me to be one which should be looked at by those responsible for the legislation so that the results that have been reached, if on further consideration they do not seem to be fully appropriate, could be corrected. So far as I can see, if a change were thought desirable, it would not cause any difficulty to bring about.

The appellant's argument 26 It was desirable to set out my understanding of Baldestowe and Mounsey before addressing the appellant's argument in full, which was to the following effect. 27 The appellant accepts that the words in s20(b) which are emphasised above (par 3) manifest a clear statutory intention that both the appellant to the Tribunal and the nominated successful candidate must be employees of the same employer. However, the appellant relies upon the extended definitions of "employee" and "employer" in the GREAT Act in support of her contention that this is satisfied either because they are each in the service of the Crown simpliciter or because they are each deemed to be employed by the Health Administration Corporation through the direct application of s40BA(3) of the Public Hospitals Act 1929, which corresponds with s26(3) of the Area Health Services Act 1986. 28 The appellant relies on Mounsey as establishing that she and Ms Baffis were each an employee employed in the service of the Crown for the purposes of par (e) of the definition of "employee" and par (e)(ii) of the definition of "employer". 29 Mounsey is invoked although each of the Mid Western Health Service and the Macquarie Health Service were, at the relevant time, "incorporated hospitals" under the Public Hospitals Act 1929 (see Second Schedule thereto). That Act and the Area Health Service Act 1986 were repealed on 1 July 1998, being the date of proclamation of the Health Services Act 1997. I agree that this technical point of distinction between the present case and the two earlier Court of Appeal decisions of Baldestowe and Mounsey does not provide any basis for distinguishing the earlier cases. I am prepared to accept this proposition in the light of the correspondence between the Public Hospitals Act 1929 (esp ss22A and 40BA) and the Area Health Service Act 1986 (esp s11(1)(e), 14 and 26). The Minister's powers over incorporated hospitals under the Public Hospitals Act 1929 appear to be similar to the corresponding powers over health services and the Area Health Services Act 1986. These powers are continued under the Health Services Act 1997 (see ss24-25, 30-32). 30 If the employees are each "in the service of the Crown" for the purposes of par (e) of the definition of "employee" then it follows, the appellant submits, that they have the same employer, namely the Crown, notwithstanding particular provisions in the Public Hospitals Act 1929 which, like their counterparts in the Area Health Services Act 1986, treated incorporated hospitals as the particular employer and as bodies that did not represent the Crown. 31 This, in my view, is the essential fallacy in the appellant's case. It is to be remembered that the definition of "employer" that corresponds with par (e) of the definition of "employee" is in the following form: 'employer' means - … (e) in relation to an employee of the class referred to in paragraph (e) of that definition - (i) … (ii) for the purposes of those provisions of this Act relating to the making of appeals and the hearing of appeals - the person in whose service the employee is employed.

32 In my opinion, it is impossible to read "the person in whose service the employee is employed" in this provision as if it were synonymous with "the Crown" in par (e) of the definition of "employee". Parliament would have used the same word in each (corresponding) provision if this had been intended, especially since there is only one class of employer mentioned in par (e) of the definition of "employee", ie "the Crown". 33 The appellant's approach to par (e)(ii) of the definition of "employer" encounters more than a textual problem. It also runs counter to the pattern of the definition as a whole, and the policy which it conveys. For each of pars (a)(ii) and (b)(ii) (which correspond with (e) in their generality), the Act singles out the particular emanation of the Crown in whom the effective power to hire and fire is vested. 34 This reasoning is expressed in greater detail and with greater felicity in Holly v Director of Public Works (1988) 14 NSWLR 140 at 149-151. In Holly each candidate was a ministerial employee, "employed in the service of the Crown" within par (e) of the definition of "employee". The Director argued that he was not "the person in whose service" they were employed, within par(e)(ii) of the definition of "employer". He contended that their employer was the Crown with the result that the Tribunal lacked jurisdiction, because s20 (in the form in which it stood in 1986) was not engaged. This was because the employer was "the Crown" and not the Director (see Holly at 144 D-E). This Court rejected the Director's submission that he was not the common "employer" of the successful and unsuccessful candidates for a position in the Department. 35 It can therefore be seen that the argument rejected in Holly was the converse of the appellant's present argument. But the issue is the same, and Holly is therefore in point, because, in rejecting the Director's argument, Mahoney JA (whose reasons were adopted by the other members of the Court) was rejecting the proposition that par (e)(ii) of the definition of "employer" contemplates "the Crown" as the relevant employer. 36 Accordingly, I cannot accept the submission that par (e)(ii) of the definition of "employer" deems persons within par (e) of the definition of "employee" to have a common employer (the Crown). The submission is contrary to Baldestowe, contrary to the reasoning in Holly, unaffected by the reasoning in Mounsey (as Priestley JA there pointed out) and wrong. 37 The appellant's alternative submission is that the common employer is the Health Administration Corporation. Reliance is placed upon s40BA(3) of the Public Hospitals Act 1929 which (for "incorporated hospitals") corresponded with s26(3) of the Area Health Services Act 1986 (for "area health services"). Each of these provisions was in force when the decision under appeal was made. (They are now replaced by s115(3) of the Health Services Act 1997.) 38 The appellant invokes the obiter remarks in the first paragraph of the passage in Mounsey (at 9) quoted at par 24 above, where Clarke JA indicated the possibility of overruling Baldestowe and concluding that the (common) employer of the parties in Mounsey for the purpose of proceedings before the Tribunal was the Health Administration Corporation. 39 I would decline the leave necessary to reopen Baldestowe on this issue. In doing so, I am not driven to express a preference between the views of Handley JA in Baldestowe and Clarke JA in Mounsey on the scope of "industrial matters" (see par 24 above), beyond noting that I do not entertain the requisite strong conviction as to the incorrectness of Baldestowe (cf Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 100; Thompson v Hill (1995) 38 NSWLR 714 at 726). It is relevant in this regard to observe that the Legislature has not seen fit to intervene, despite the remarks of Priestley JA in Mounsey that I have quoted at par 25 above. 40 In my opinion, resort via s40BA(3) of the Public Hospitals Act 1929 to the Health Administration Corporation as the common employer of the appellant and Ms Baffis for the purposes of the GREAT Act is repelled by an implication deriving from par (c) of the definition of "employee" in s4(1) of the GREAT Act. That paragraph defines employee to mean : a person who is employed, whether permanently or otherwise, in the service of an employing authority".

41 "Employing authority" is defined to mean "subject to subsection (8), a person whose name is included in Schedule 4". Schedule 4 includes: Health Commission of New South Wales in respect of persons appointed and employed under section 14A of the Health Commission Act 1972,

[For "Health Commission" read "Health Administration Corporation": see Health Administration Act 1982 , Schedule 2 cl 5(2)(a).]

42 Subsection (8) of s4 provides: Where the name of a person is included in Schedule 4 in respect of a person or class of persons, the firstmentioned person is, for the purposes of this Act, an employing authority only in respect of that other person or class of persons. 43 The effect of subsection (8) is to deem the Health Administration Corporation to be, for the purposes of the GREAT Act, an employing authority only in respect of the other class of persons named, ie "persons appointed and employed under section 14A of the Health Commission Act 1972". 44 Neither the appellant nor Ms Baffis fell within this category or its corresponding s14 in the Health Administration Act 1982 (Schedule 2, cl 3). 45 The combined effect of par (c) of the definition of "employee" and subsection (8) is to preclude resort to the argument that all Health Administration Corporation employees fall within par (c) of the definition. But they also repel by implication the argument that a person may be treated as employed in the service of the Crown for the purposes of par (e) of the definition. The concluding words of par (e) specifically exclude persons employed by an employing authority. 46 I record that the appellant submitted that Baldestowe was wrongly decided and that this prompted a belated counter-submission for the respondent that Mounsey was wrongly decided. For the reasons already given I would not overrule either decision. Each side pointed to anomalies consequent upon acceptance of the other side's position. With legislation as complex in its application as the GREAT Act is, this is hardly surprising. The Act has been frequently amended by Parliament and by the Executive (cf s4(9)). Doubtless it will continue to be amended in the light of the ebb and flow of public sector management policy. 47 The appeal should be dismissed with costs. 48 MEAGHER JA: I agree with Mason P. 49 STEIN JA: I agree with Mason P. *************

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