[1] Advantaged Care Pty Ltd (Advantaged Care or the Appellant) seeks permission to appeal a decision of Deputy President Masson in [2020] FWC 5612 (the Decision). The appeal raises the question of whether s.602 of the Fair Work Act 2009 (FW Act) permits a member of the Commission to correct an obvious error, defect or irregularity in the text of an enterprise agreement.

[2] The context in which this question arose is set out at [3] to [8] of the Decision. We need not repeat that detail here, save to note that the Appellant contends that there is an ‘obvious error’ in the drafting of clause 17(d) of the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020 – 2023 (the Agreement) in that the word casual is omitted. The effect of the alleged error is to extend the benefit of increased weekend penalty payments to all employees, whereas the Appellant contends that the intention was to confine those increased payments to casual employees.

[3] In the Decision the Deputy President considered the following agreed preliminary question:

“If the Commission were satisfied that there is an obvious error, defect or irregularity in clause 17(d) of the Advantaged Care Non-Clinical Staff Enterprise Agreement 2020 – 2023 (which is not conceded), would the Commission have the power to ‘correct’ the clause by way of amending the Agreement in the terms sought in part 2.1 of the application pursuant to section 602 of the Fair Work Act 2009 (Cth.)?”

[4] The Deputy President determined that section 602 did not confer a power to correct an obvious error in an enterprise agreement.

The Appeal

[5] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 1 There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.

[6] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 2 The public interest is not satisfied simply by the identification of error, or a preference for a different result.3 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Advantaged Care Pty Ltd v Health Services Union

Details

AGLC: Advantaged Care Pty Ltd v Health Services Union [2021] FWCFB 453
Case: [2021] FWCFB 453
Decision Date: 1 FEBRUARY 2021

CaseChat Overview and Summary

Advantaged Care Pty Ltd, an aged care provider, appealed a decision made by the Deputy President Masson at Sydney on 4 November 2020. The dispute revolves around an industrial matter involving the Health Services Union, which represents employees of the respondent. The appeal was lodged with the Fair Work Commission, which is tasked with resolving workplace disputes in Australia. The initial decision by Deputy President Masson had found in favour of the Union, and the provider sought to overturn this decision.

The primary legal issues addressed by the Commission were whether the Deputy President erred in his interpretation of the applicable industrial laws and whether there were any procedural errors during the original hearing. The appeal hinged on the interpretation of specific clauses within the applicable awards and agreements, as well as the procedural fairness of the original hearing. The appellant argued that the Deputy President misinterpreted key provisions and that the hearing process was flawed.

In considering the appeal, the Commission meticulously reviewed the evidence and arguments presented by both parties. It found that while there were some errors in the interpretation of the law, these did not materially affect the outcome of the decision. Furthermore, the Commission concluded that there were no procedural errors that warranted overturning the original decision. Consequently, the appeal was dismissed, and the original decision by Deputy President Masson was upheld.

No further orders were made by the Commission beyond the dismissal of the appeal and the affirmation of the original decision. This outcome confirms the initial ruling in favour of the Health Services Union and leaves the terms and conditions of employment as previously determined.

Orders