WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. Industrial Relations Act 1979. Lesley Ann Cala and Metropolitan Health Service Board and Craig Bennett, Chief Executive Sir Charles Gairdner Hospital. No. 300 of 2000. COMMISSIONER P E SCOTT. 17 April 2000. Reasons for Decision. THE COMMISSIONER: By notice of application filed with the Commission, the Applicant seeks— “A. Interim relief setting aside the suspension of her by the first and second respondents until further order of this Commission pursuant to clause 48(3)(a) of the Metropolitan Health Service Board AMA Medi- cal Practitioners Agreement 1999; B. Substantive relief setting aside the suspension re- ferred to at A. above and otherwise resolving the dispute between the applicant and the respondents pursuant to clause 48(3)(a) of the Industrial Agree- ment, or alternatively sections 23(1) and 29(1)(b)(ii) of the Act.” The Commission heard from the parties as to preliminary matters relating to the Applicant’s capacity, pursuant to the Industrial Relations Act, 1979, (“the Act”) to bring such ap- plication. The Applicant says that a proper reading of clause 48 of the Metropolitan Health Service Board AMA Medical Practition- ers Agreement 1999 (“the Agreement”) enables her as a party, to make application to the Commission in respect of a ques- tion and/or dispute and/or difficulty. The parties agree that the Applicant’s employment is subject to the Agreement. The Applicant also says that because she is enabled by clause 48 of the Agreement to bring the matter to the Commission, s.29 of the Act must be read subject to s.41 of the Act, and that s.41(4) provides that an industrial agreement extends to and binds each of the parties vis-a-vis every employment relation- ship. The Applicant also says that to undertake work is a benefit to which she is entitled under her contract of service and there- fore she seeks relief pursuant to s.29(1)(b)(ii) of the Act. Accordingly, the Applicant says that there is no impediment to her, as an individual employee, bringing this matter to the Commission. The Respondent says that the Applicant is not a party to the Agreement and clause 48(3) of the Agreement only enables “parties”, identified as the Metropolitan Health Service Board and the Western Australian Branch of the Australian Medical Association Incorporated, to bring matters to the Commis- sion. The Respondent also says that s.29 of the Act sets out those matters which the Act enables employees to bring to the Com- mission. This matter is not such a matter. The Respondent says that there is no benefit under her contract of employment to enable the Applicant to bring a matter of the provision of work to the Commission. The first question is whether the Applicant is a party to the Agreement such as to enable her to refer a matter to the Com- mission. The Agreement has the following relevant provisions— “2. APPLICATION 1. The parties to this Agreement are the Metro- politan Health Service Board (the employer) and the Western Australian Branch of the Aus- tralian Medical Association Incorporated (the Association). 2. This Agreement shall extend to and bind the employer and all medical practitioners em- ployed by the employer throughout Western Australia. Provided that the Agreement shall not apply to Medical Superintendents (or equivalent) or members of the Senior Execu- tive Service. … 48. DISPUTE SETTLING PROCEDURES 1. Subject to Clause 3 No Further Claims, to the provisions of the Industrial Relations Act, 1979 and Clause 47—Introduction of Change any questions, disputes or difficulties raised by a party to this Agreement, shall be settled in accordance with the following procedures. 2. Where the matter is raised by an employee, or a group of employees, the following steps shall be observed— a. The employee(s) concerned shall dis- cuss the matter with the Head of Department. If the matter cannot be resolved at this level the Head of De- partment shall, within three working days, refer the matter to the Medical Superintendent and the employee(s) shall be advised accordingly. b. The Medical Superintendent shall, if so able, answer the matter raised within one week of it being referred and, if the Medical Superintendent is not able, refer the matter to the Hospital Execu- tive for its attention, and the employee(s) shall be advised accord- ingly. c. If the matter has been referred in ac- cordance with paragraph (b) above the employee(s) or the appropriate AMA hospital medical practitioner repre- sentative shall notify the Association, to enable the opportunity of discuss- ing the matter with the employer. d. The employer shall, as soon as practi- cable after considering the matter before it, advise the employee(s) or, where necessary, the Association of its decision. Provided that such advice shall be given within one month of the matter being referred to the employer. e. Where the parties agree that a matter is non-industrial it may by agreement be referred to other appropriate bodies (eg relevant Royal Colleges) for advice and/or assistance. f. Nothing in this procedure shall prevent the parties agreeing to shorten or ex- tend the periods prescribed. 3. Subject to Clause 3—No Further Claims, should a question, dispute or difficulty remain in dispute after the above processes have been exhausted the matter may— a. be referred by either party to the West- ern Australian Industrial Relations Commission (provided that persons in- volved in the question, dispute or difficulty must confer among them- selves and make reasonable attempts to resolve questions, disputes or diffi- culties before taking these matters to the Commission); or b. where the parties agree, be referred to another independent arbitrator chosen by the parties or as a last resort nomi- nated by the Public Sector Commission. In such a case— (i) either party may be represented in the arbitration by an agent or WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1947 80 W.A.I.G. legal practitioner and shall bear the costs of that representation; (ii) the employer will meet the costs of the arbitration. Provided that where the arbitrator determines that a claim is frivolous or vexa- tious, the arbitrator may assign the costs of the arbitration (but not the costs of representation) against the claimant or appor- tion them in any manner between the parties. The parties undertake to accept the arbi- trated decision as final and binding. 4. Industry wide issues will be dealt with by dis- cussions between the appropriate Association official(s) and employer representative(s). Should a matter remain in dispute after dis- cussions have been exhausted it may be dealt with in accordance with subclause 48(3). 5. While the above procedures are being followed no party shall take action, of any kind, which may frustrate a settlement in accordance with the above procedures. The status quo (ie the condition applying prior to the issue arising) will remain until the issue is resolved in ac- cordance with the above procedures. 6. Where the employer seeks to discipline or ter- minate an employee the following steps shall be observed— a. Where an employee commits a misde- meanour, the employee’s immediate supervisor or any authorised medical practitioner may reprimand the em- ployee so that the employee understands the nature and implica- tions of his/her conduct. The employee has a right to be represented when be- ing reprimanded. b. The first two reprimands shall take the form of warnings and, if given verbally, shall be confirmed in writing as soon as practicable after the giving of the reprimand. c. Should it be necessary, for any reason, to reprimand an employee three times, the contract of service shall, upon the giving of that third reprimand, be ter- minable in accordance with the provisions of this Agreement. d. This procedure shall not, limit the right of the employer to summarily dismiss a medical practitioner for misconduct. Nor shall it limit the right of an em- ployee to refer a claim for alleged wrongful or unlawful termination to a Board of Reference.” An examination of the Agreement for the purpose of estab- lishing its true intent shows that subclause (1) of clause 2.—Application clearly defines the “parties” to the Agreement. They are the Metropolitan Health Service Board and the West- ern Australian Branch of the Australian Medical Association Incorporated. Subclause (2) of that clause notes that the Agree- ment extends to and binds the employer and all medical practitioners employed by the employer, subject to certain exclusions. Subclause (1) of clause 48. – Dispute Settling Procedures makes the clause subject to clause 3. – No Further Claims, which is not relevant to this matter; to the provisions of the Act, which is of significance; and clause 47. – Introduction of Change, which is not relevant to this matter. It provides that any questions, disputes or difficulties “raised by a party to this Agreement” shall be settled in accordance with the proce- dure it sets out. Subclause 2 provides for a range of steps to be followed where a matter is raised by an employee or a group of employees. This procedure starts out at the level of the employee(s) and the head of the department. If unresolved at that stage it may be referred to the Medical Superintendent. If unresolved at this level it is referred to the Hospital Execu- tive, and according to paragraph (c) of subclause (2), if the matter is referred to the Medical Superintendent and then to the Hospital Executive, the employee(s) or the appropriate AMA hospital medical practitioner representative shall no- tify the Association. Subclause (3) of clause 48.—Dispute Settling Procedures then provides that subject clause 3. – No Further Claims (which is not relevant for this matter) if the matter is not resolved after the process set out in subclause (2) has been exhausted, then the matter may be dealt with in one of two ways— 1. It may be referred by “either party to the