Australian Health Practitioner Regulation Agency v Civil Service Association of Western Australia Incorporated

[2013] FWC 3256

[2013] FWC 3256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.240 - Application to deal with a bargaining dispute

Australian Health Practitioner Regulation Agency
v
Civil Service Association of Western Australia Incorporated
(B2012/825)

VICE PRESIDENT WATSON SYDNEY, 23 MAY 2013

Application to deal with a bargaining dispute - Matters remitted from appeal in matter C2012/5894 by Full Bench - whether Australian Health Practitioner Regulation Agency a national system employer - extended definition - incorporation in a State or Territory - constitutional corporation - substantial trading or financial activities - whether AHPRA specifically declared not to be national system employer - Ministerial endorsement of declaration - Fair Work Act 2009 - ss. 14, 30D, 30N, 240 - Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld).

Introduction

[1] This decision concerns an application for the Fair Work Commission (the Commission) to deal with a bargaining dispute between the Australian Health Practitioner Regulation Agency (AHPRA) and the Civil Service Association of Western Australia Incorporated (CPSU/CSA). The matter was originally heard by Senior Deputy President Kaufman, who issued a decision [2012] FWA 8776 on 17 October 2012.

[2] In the proceedings before SDP Kaufman a preliminary issue arose as to whether AHPRA is a national system employer for the purposes of the Fair Work Act 2009 (the Act) and therefore whether the Commission has jurisdiction to deal with the dispute. The answer to this question was intended to determine whether State or Federal law applies to AHPRA’s enterprise bargaining processes. His Honour ultimately concluded that AHPRA is a national system employer, that the application pursuant to s.240 of the Act is properly made and the consequence of those conclusions is that enterprise bargaining can occur in accordance with the provisions of the Act.

[3] His Honour’s decision was that AHPRA is a national system employer because:

• it falls within the definition of ‘national system employer’ in s.14(1) of the Act by virtue of the extended definition in s.30D and s.30N of the Act;


• it falls within the first element of the exclusion of the definition of national system employer in s.14(2)(a) as it is a body established for a public purpose by a law of a State or Territory;


• it does not fall within the second element of the exclusion of the definition of ‘national system employer’ in s.14(2)(b) because it was not “an agency ... established under an Act ... for a public or State purpose” for the purposes of the Queensland Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) (the Queensland Referral Act)

[4] In other words, his Honour held that AHPRA fell within the definition of ‘national system employer’ in s.14(1) and did not fall within the overarching exclusion to the definition in s.14(2).

[5] An appeal against his Honour’s decision was upheld. The appeal bench considered that AHPRA was “an agency ... established under an Act ... for a public or State purpose”. The Full Bench concluded:

“National System Employer - Extended definition

[20] The extracts from his Honour’s decision above illustrate the chain of legal reasoning involved in determining whether AHPRA is a national system employer. We agree that this involves the application of the terms of section 14 of the Act which is extracted above. Section 14(1) sets out the various types of entities that can be national system employers. AHPRA clearly falls within paragraph (e). Section 14(2) contains an overriding exclusion. It requires satisfaction of three elements.

[21] His Honour’s analysis assumes that AHPRA is a body established for a public purpose under a law of a State thereby satisfying the first element in s14(2)(a). We agree with that conclusion.

[22] The focus of the remainder of the decision is on the second element and whether AHPRA is specifically declared by or under a State law not to be a national system employer for the purposes of the Act. The parties accepted that the answer to this question involves an analysis of the Queensland Referral Act. This ultimately involved a consideration of whether AHPRA fell within the description of “an agency ... established under an Act ... for a public or State purpose” - being the relevant part of the definition of public sector employers that are excluded from the reference. It appears to be accepted by AHPRA that if a body falls within that general description it is ‘specifically declared” not be a national system employer, although in the light of this concession we have not had the benefit of considered argument on that question.

[23] His Honour’s conclusion expressed at paragraph [43] of his decision was that AHPRA was established for an Australian public purpose, not a Queensland purpose. This conclusion depended on reading the reference to “public purpose” in the definition of a public sector employer in section 3 of the Queensland referral Act as a purpose confined to Queensland. The conclusion was reached having regard to extraneous materials referred to in the extracts from the submissions filed by AHPRA set out above.

[24] As noted by his Honour, the establishment of AHPRA was to fulfil certain Queensland purposes as well as to create a vehicle to be the repository of other powers and purposes provided by legislation of other States. His Honour was correct, in our view, to observe that the intention of all jurisdictions was to create a single national entity to administer the national scheme. However it should also be noted that the administration of the national scheme in each state fulfilled the State purpose of the regulation of health professionals. The provision of such regulation in a uniform manner through a single national entity does not deprive it of its constituent State purposes.

[25] In our view the interpretation contended for by AHPRA involves interpreting the phrase ‘public purpose’ in the same way as ‘State purpose’. In our view the two concepts are alternatives and must be construed as having different meanings. While there can be no doubt that the notion of a public purpose expressed in a Queensland Act must be interpreted in that context, we consider that the interpretation contended for by AHPRA involves an impermissible reading down of the phrase in a way that deprives it of any meaning beyond the alternative of a State purpose.

[26] It could be argued that, notwithstanding its national operation, the State purpose of AHPRA in Queensland leads to the conclusion that AHPRA falls within the phrase “an agency established for a State purpose.” However it is not necessary to reach a concluded view on such an argument. In our view AHPRA is a public sector employer under the Queensland Referral Act because it is an agency established for a public purpose. Its responsibilities and powers derived from legislation in other States does not deprive it of that description - at least for the purposes of Queensland legislation.

[27] It follows from our conclusions that his Honour erred in concluding that the Queensland referral Act did not exclude AHPRA. The second element of section 14(2) is satisfied in relation to AHPRA. For this reason we allow the appeal and quash his Honour’s decision. However it appears that neither the parties nor his Honour considered the third element of the exclusion in section 14(2). It appears that the meaning and application of that part of the exclusion is undetermined.

Conclusions

[28] For the reasons above we find that the appeal in this matter is competent, we grant permission to appeal, allow the appeal and quash the decision of his Honour. We remit the matter to Vice President Watson to determine the outstanding matters which have not been argued or determined.”

[6] Importantly, the Full Bench did not find that the exclusion to the definition of ‘national system employer’ in s.14(2) applied - merely that it did not agree that the reason advanced by AHPRA and found by his Honour that the exclusion did not apply was correct.

The Issues to be Determined

[7] In accordance with the decision of the Full Bench I listed the matter for further hearing. The parties made oral and written submissions on the questions remitted by the Full Bench and otherwise undetermined. Those submissions raise the following issues:

1. Whether AHPRA falls within the description of a ‘national system employer’ in s.14(1)(e) of the Act because it is incorporated in each State and Territory with the State of Queensland being the host State,

2. Whether AHPRA is a trading or financial corporation for the purposes of s.14(1)(a),

3. Whether AHPRA is specifically declared not to be a ‘national system employer’ for the purposes of s.14(2)(b),

4. Whether, for the purposes of s.14(2)(c), in relation to AHPRA, there is a Ministerial endorsement in force of a declaration referred to in s.14(2)(b).

[8] AHPRA contends that given the determination of matters by SDP Kaufman and the Full Bench, it is only necessary to find that question 4 should be answered in the negative. To the extent that it is necessary to determine the other issues it contends that Questions 1 and 2 should be determined in the affirmative and question 3 should be determined in the negative.

[9] The CPSU/CSA contends that questions 1 and 2 should be determined in the negative, question 3 should be determined in the affirmative and it is not necessary to determine question 4.

[10] I note that SDP Kaufman found that AHPRA fell within the extended definition of a national system employer and this conclusion was not disturbed by the Full Bench.

[11] In order to determine whether AHPRA is a ‘national system employer’ it is necessary to consider whether it falls within one or more of the descriptions in s.14(1) or the extended definition and whether the overriding exclusion in s.14(2) applies. I therefore propose to consider each of the issues addressed by the parties in their submissions and the extent to which I need to make a finding in relation to each of them.

Legislative Provisions

[12] Section 14 of the Act is as follows:

“14 Meaning of national system employer

(1) A national system employer is:

(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or

(b) the Commonwealth, so far as it employs, or usually employs, an individual; or

(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or

(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or

(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.

Note 1: In this context, Australia includes the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands (see paragraph 17(a) of the Acts Interpretation Act 1901).

Note 2: Sections 30D and 30N extend the meaning of national system employer in relation to a referring State.

Particular employers declared not to be national system employers

(2) Despite subsection (1) and sections 30D and 30N, a particular employer is not a national system employer if:

(a) that employer:

(i) is a body established for a public purpose by or under a law of a State or Territory, by the Governor of a State, by the Administrator of a Territory or by a Minister of a State or Territory; or

(ii) is a body established for a local government purpose by or under a law of a State or Territory; or

(iii) is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, an employer to which subparagraph (ii) applies; and

(b) that employer is specifically declared, by or under a law of the State or Territory, not to be a national system employer for the purposes of this Act; and

(c) an endorsement by the Minister under paragraph (4)(a) is in force in relation to the employer.

(3) Paragraph (2)(b) does not apply to an employer that is covered by a declaration by or under such a law only because it is included in a specified class or kind of employer.

Endorsement of declarations

(4) The Minister may, in writing:

(a) endorse, in relation to an employer, a declaration referred to in paragraph (2)(b); or

(b) revoke or amend such an endorsement.

(5) An endorsement, revocation or amendment under subsection (4) is a legislative instrument, but neither section 42 (disallowance) nor Part 6 (sunsetting) of the Legislative Instruments Act 2003 applies to the endorsement, revocation or amendment.

Employers that cannot be declared

(6) Subsection (2) does not apply to an employer that:

(a) generates, supplies or distributes electricity; or

(b) supplies or distributes gas; or

(c) provides services for the supply, distribution or release of water; or

(d) operates a rail service or a port;

unless the employer is a body established for a local government purpose by or under a law of a State or Territory, or is a wholly-owned subsidiary (within the meaning of the Corporations Act 2001) of, or is wholly controlled by, such a body.

(7) Subsection (2) does not apply to an employer if the employer is an Australian university (within the meaning of the Higher Education Support Act 2003) that is established by or under a law of a State or Territory.

[13] The Queensland Referral Act excludes public sector employers from the referral of powers to the Commonwealth. Public sector employers are defined as follows:

“public sector employer means any of the following –

(a) a Minister

(b) a department or public service officer;

(c) an employing office;

(d) a registry or other administrative office all a court or tribunal of the state of any jurisdiction;

(e) an agency, authority, commission, corporation, instrumentality, office, or any other entity, not otherwise mentioned in the preceding paragraph, established under an Act or under State authorisation for a public or State purpose.”

Is AHPRA a Body Corporate incorporated in a Territory: s.14(1)(e)?

[14] In the appeal in this matter the Full Bench held that AHPRA clearly falls within s.14(1)(e). The CPSU/CSA submits that there was no argument on this question before the Full Bench and that the paragraph was not intended to apply to an entity that is separately incorporated in each State and Territory. It further submits that as the initial incorporation of AHPRA was in Queensland, s.14(1)(e) can only apply to AHPRA within the territories.

[15] AHPRA contends that it is only necessary for a body to be incorporated in a Territory for the paragraph to apply - in contrast to s.14(1)(f). It relies on the High Court’s acceptance of the now defunct Coal Industry Tribunal combined source of powers from Federal and NSW legislation.

[16] The Full Bench proceeded on the basis that SDP Kaufman had been satisfied on the basis of the arguments before him that s.14(1)(e) applied to AHPRA, and the absence of any contrary arguments in the proceedings before it. In order to be satisfied that AHPRA is a national system employer I must consider whether s.14(1) applies, whether or not particular arguments have been raised in the past. The evidence on the establishment of AHPRA was led before SDP Kaufman. After reviewing that evidence he said:

“[27] AHPRA came into existence on 1 February 2009 as a creature of the Queensland Parliament, with the commencement of section 18 of the Administrative Arrangements Act.

[28] Although the Administrative Arrangements Act was repealed on 1 July 2010 when the Queensland National Law Act commenced, AHPRA, as matter of fact, continued to operate. I doubt that, as a matter of law, the mere repeal of the Administrative Arrangements Act extinguished the juristic entity that was and remains AHPRA.

[29] Absent the repeal of the Administrative Arrangements Act by section 10 of the Queensland National Law Act, it seems to me that it would not be arguable that AHPRA was anything but a Queensland entity, albeit having been created for a national purpose, it having been created by the Administrative Arrangements Act.

[30] As I apprehend the argument advanced on behalf of CSA, it contends that AHPRA has been created in each State and Territory by their respective Parliaments by operation of the National Law Acts. Although it is possible, as a matter of law, that more than one state can, by legislation in each jurisdiction, constitute the one entity 6 that is not what happened with the creation of AHPRA.

[31] In my view it is clear that the intention of all the jurisdictions was that there would only be only the one single national entity established to administer the national scheme. The creation of this entity was achieved by section 18 of the Administrative Arrangements Act. That “The Australian Health Practitioner Regulation Agency is established” by an Act of the Parliament of each jurisdiction does not in my view alter the situation. The establishment of AHPRA in each jurisdiction did not, in my view, recreate AHPRA or create seven different AHPRAs. As was made clear in the explanatory memoranda to which I have referred, its establishment in each jurisdiction was for the purposes of that jurisdiction.

[32] That each State and Territory “established” AHPRA as an entity in its own jurisdiction and for the purposes of that jurisdiction does not derogate from the fact that the juristic entity was established by the Administrative Arrangements Act in 2009 in Queensland and its existence has continued. In my view, its continued existence was not extinguished by the repeal of the Administrative Arrangements Act or the coming into operation of the National Law Acts. To assert otherwise flies in the face of reality. The observations of Deane, J in R v Duncan; Ex parte Australian and Steel Pty Ltd are apposite:

“It is competent for the legislature to constitute or to authorize the constitution of an entity unknown to the common law. This the Acts have, in their concurrent operation, done in the case of the Tribunal. It is unnecessary to define with precision the nature of the statutory entity which has been established.” 7

It is not necessary that I define with precision the nature of the State and Territory entities.

[33] The CSA contends that as AHPRA has been brought into existence through State and Territory legislation for a public purpose it is a public statutory authority in each State and Territory jurisdiction. This contention seems to me to miss the point. In the first place it begs the question as to how and when AHPRA came into existence. Secondly, that it is a public statutory authority that operates in each state jurisdiction does not derogate from the proposition that it is a Queensland entity that does so operate albeit for a public purpose that extends beyond the limits of that one state.

[34] CSA then notes the differences in the legislation in each jurisdiction as indicating that AHPRA is an entity of each jurisdiction. It is the case that each State and Territory has used similar, but not identical, means to achieve the same end; the creation of a national scheme for the regulation of health practitioners. However, as I noted earlier that that has been done for the purposes of the States and Territories does not affect the status of AHPRA, the entity created in 2009.”

[17] In my view this analysis is correct. AHPRA was established initially in Queensland. It was given extended powers by the enactment of legislation by each State and Territory. That legislation was intended to create a single national entity with powers in each State and Territory conferred by legislation in each jurisdiction. The single national entity is a body incorporated in each State and Territory. Its incorporation by the Territory legislatures satisfies the definition in s.14(1)(e).

Is AHPRA a Trading and Financial Corporation: s.14(1)(a)?

[18] SDP Kaufman did not consider whether AHPRA was a constitutional corporation for the purposes of s.14(1)(a). As he was satisfied that AHPRA was a national system employer on an alternative basis there was no need to also determine whether it was a constitutional corporation. Given my conclusion in relation to s14(1)(e) that situation continues to apply. However given that both parties have addressed this issue I have decided to consider the arguments advanced by the parties to determine whether there is an additional basis for finding that AHPRA is a national system employer.

[19] A constitutional corporation is a trading and financial corporation. The CPSU/CSA submits that AHPRA is not a trading and financial corporation because:

• It is a public statutory authority, and as such is precluded from being a trading and financial corporation; and

• It does not carry out substantial trading and financial activities.

[20] AHPRA submits that although it is a public statutory authority, it engages in substantial trading and financial activities and is not precluded from being a trading and financial corporation simply by virtue of its public purpose. It relies on the evidence of John Ilott led before SDP Kaufman. That evidence establishes that the functions of AHPRA include setting of professional standards, professional regulations, notification systems and processes, compliance systems and processes and accreditation in liaison with education providers and authorities. In order to carry out these functions AHPRA has entered significant fee for service arrangements with various educational and commercial entities. The functions are funded by practitioner registration fees and investment earnings. Investment earnings in the 2011/12 financial year contributed about 4% of total income. With the exception of special projects there is no ongoing government funding.

[21] In support of its submission, the CPSU/CSA relies on the decision of Ritter AP in the case of Shire of Ravensthorpe v John Patrick Galea, 1where a Full Bench of the West Australian Industrial Relations Commission (WAIRC) considered whether a local shire council was a trading and financial corporation. The CPSU/CSA submits that consideration was given in that case to the shire’s legislative structure, and its purpose under the Local Government Act, and that similar consideration must be given in relation to AHPRA’s establishment and purpose. In the CPSU/CSA’s submission, AHPRA’s stated purpose does not include trading and financial activities.

[22] The CPSU/CSA further relies on the decision of Smith SC in Galea, where the Commissioner considered that trade did not extend to the provision of services under a statutory obligation to provide services and collect fees. It is the CPSU/CSA’s submission that there is a direct parallel between the shire in Galea and AHPRA.

[23] AHPRA relies on the Federal Court case of Re E v Australian Red Cross Society; Australian Red Cross Society New South Wales Divisions and Central Sydney Area Health Service 2. In that caseWilcox J considered whether the Australian Red Cross Society and a number of hospitals could be trading and financial corporations, in light of the fact that they were created for a public benevolent purpose and received substantial public funding. Wilcox J considered that although “the purpose for which the corporation was formed retains some relevance”3 this fact alone does not stand in the way of a body being considered a trading and financial corporation.

[24] It has been held that a corporation is a trading corporation if trading is a substantial or significant part of its corporate activities. 4 Trading is not given a narrow construction5. It extends beyond buying and selling to business activities carried on with a view to earning revenue and includes trade in services6. Making a profit is not an essential pre-requisite7. Trading activities may be conducted for a public purpose8.

[25] The application of these tests to AHPRA requires the characterisation of its registration and accreditation activities. I am of the view that these are not trading or financial activities. However I consider that a proportion of AHPRA’s other activities can be described as trading activities, and its investment activities can also be described as financial activities. The relevant activities are not the predominant part of its activities but they are not insubstantial. This matter is not free from doubt but in my view the better interpretation is that AHPRA is a constitutional corporation for the purposes of s.14(1)(a).

Is AHPRA specifically declared not to be a ‘national system employer: s.14(2)(b)?

[26] As indicated above, the Full Bench found that AHPRA fell within the description of a public sector employer under the Queensland Referral Act. AHPRA now raises a different argument concerning the requirements of s.14(2)(b). It submits that AHPRA is not specifically declared not to be a national system employer for the purposes of the Act because there is no specific reference to it. It submits that the phrase requires the actual identification of the employer that is subject to the declaration and that that the declaration state that the employer so identified is not a national system employer for the purposes of the Act.

[27] AHPRA relies on the explanatory memorandum which accompanied the amending legislation that incorporated s.14(2) into the Act. Paragraphs 423-432 of the Explanatory Memorandum state:

“Fair Work Act 2009

Item 1 - Section 14

Item 2 - At the end of section 14 (after the notes)

423. These items amend section 14 of the FW Act which deals with the meaning of national system employer.

424. Item 2 inserts a mechanism under which certain employers may be declared by or under a State or Territory law not to be national system employers. To be effective, a declaration must be endorsed by the Minister administering the FW Act.

425. Such a declaration may only be made in respect of:

• entities established for a public purpose by or under a State or Territory law, by the Governor of a State, the Administrator of a Territory or a Minister of a State or Territory; and



• entities established for a local government purpose by or under a State or Territory law and wholly-owned or controlled subsidiaries of such entities.

426. However, a declaration cannot be made in relation to an employer that:

• generates, supplies or distributes electricity;



• supplies or distributes gas;



• provides services for the supply, distribution or release of water; or



• operates a rail service or a port;

unless the employer is a local government employer or a wholly-owned or controlled subsidiary of such an employer.

427. In addition, a State or Territory is not permitted to make an exclusion declaration in relation to an employer that is an Australian university (within the meaning of the Higher Education Support Act 2003).

428. An employer will be required to be specifically named in the exclusion law or instrument declaration. This is because a key objective of the national workplace relations system is to ensure certainty of coverage for compliance purposes.

429. If a declaration is made by or under a State or Territory law, and endorsed by the Minister, then the employer specified in the declaration will not be a national system employer and will not generally be subject to the FW Act. This will also mean that the employer’s employees will not be national system employees (because only employees of national system employers are national system employees) and will not generally be subject to the FW Act.

430. If the Minister does not endorse the declaration the employer will continue to be subject to the FW Act. If a declaration is revoked by the Minister, the employer specified in the declaration will again be subject to the FW Act.

431. To ensure transparency of the FW Act’s coverage, the endorsement or revocation instrument will be tabled in the Parliament. An endorsement or revocation instrument will be a legislative instrument for the purposes of the Legislative Instruments Act, but will not be subject to the disallowance or sunsetting provisions of the Act.

432. The exemptions from the disallowance and sunsetting provisions of the Legislative Instruments Act are necessary to ensure certainty of rights and entitlements for the employers and employees that will potentially be subject to this exclusion mechanism.”

[28] There is a body of law that in my view essentially applies the ordinary meaning of the term “specifically”. Clearly the concept requires precision, detail and specificity. It is a term used to exclude general references 9

[29] The CPSU/CSA submits that AHPRA is part of “the public sector carve out” because it is not listed as being excluded from the definition of public sector employer in Schedule 1 of the Fair Work (Commonwealth Powers) and Other Provisions Act 2009.

[30] In my view the CPSU/CSA argument misconstrues the meaning of s.14(2)(b) as explained in the explanatory memorandum. The default position is that an employer that otherwise fits the description of a ‘national system employer’ in s.14(1) can only fall within the second element of the exclusion in s.14(2)(b) if it is specifically excluded. A general exclusion is insufficient.

[31] AHPRA states that it is unaware of any specific exclusion. The CPSU/CSA has not been able to refer to one. In my view the exclusion of public sector employers in the Queensland Referral Act referred to above is properly characterised as a general exclusion. In my view it is not a specific declaration of a type required to satisfy s.14(2)(b).

Is there a Ministerial Endorsement in Force: s.14(2)(c)?

[32] AHPRA led evidence that a scheme of registration is created by the Legislative Instruments Act 2003 to record all legislative instruments in force. The evidence led establishes that a search of the register and all instruments purporting to be endorsements of the type described in s.14(4) failed to detect any legislative instrument that purports to apply to AHPRA. Each of the endorsements were exhibited in an affidavit. AHPRA contends that on the basis of this evidence the third requirement for the s.14(2) exclusion is not satisfied.

[33] The CPSU/CSA contends that a specific endorsement in relation to AHPRA has not been necessary to date as AHPRA is part of “the public sector carve out”. It states that “it is possible that in the future this may, if necessary, occur.”

[34] I find on the evidence before me that no endorsement by the Minister of a s.14(2)(b) declaration exists. As the requirements of the s.14(2) exclusion are cumulative the exclusion does not apply for this reason alone.

Conclusions

[35] As indicated above, in order to be a ‘national system employer’ AHPRA must fall within one or other of the descriptions in the definitions of that term, and not fall within the overarching exclusions in s.14(2). For the reasons above I find as follows:

1. AHPRA falls within the definition of ‘national system employer’ is s.14(1)(e) because it is a body corporate incorporated in a Territory.

2. AHPRA also falls within the definition of a constitutional corporation in s.14(1)(a) because it conducts substantial trading and financial activities and is therefore a trading and financial corporation.

3. In any event AHPRA was found by Senior Deputy President Kaufman to fall within the extended definition of a ‘national system employer’ in sections 30D and 30N of the Act.

4. AHPRA is not excluded from the definition of ‘national system employer’ by the terms of s.14(2) because:

a) it is not specifically declared by or under a law of a State or territory not to be a national system employer, and

b) no endorsement of any such purported declaration has been given by the Minister.

[36] I therefore find that AHPRA is a national system employer for the purposes of the Act. This resolves the preliminary issue in these proceedings. The matter may be relisted for any further proceedings at the request of either party.

VICE PRESIDENT WATSON

Appearances:

Mr C. O’Grady, of counsel, for the Australian Health Practitioners Regulation Authority

Ms L Kennewell for the Civil Service Association of Western Australia Incorporated

Hearing details:

2013.

Sydney.

April, 11.

 1   [2009] WAIRComm 1149.

 2 (1991) 27 FCR 310.

 3   Re E v Australian Red Cross Society; Australian Red Cross Society New South Wales Division and Central Sydney Area Health Service (1991) 7 FCR 310.

 4   The Queen v Federal Court of Australia Ex parte; Western Australian National Football League (1979) 143 CLR 190 at 208.

 5   The Queen v Federal Court of Australia Ex parte; Western Australian National Football League (1979) 143 CLR 190 at 218.

 6   Ibid.

 7   The Queen v Federal Court of Australia Ex parte; Western Australian National Football League (1979) 143 CLR 190 at 219.

 8   The Commonwealth v Tasmania (1983) 158 CLR 1 at 156.

 9   Evans v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2003) 203 ALR 320; Tickner v Chapman (1995) 57 FCR 45.

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