FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUCKLEY v TERRIGAL GROSVENOR LODGE (ERINA) PTY LTD (No.2) | [2015] FCCA 2267 |
| Catchwords: INDUSTRIAL LAW – Unfair dismissal – whether applicant had a workplace right – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 185, 340, 341, 342, 361, 365, Part 2-2, Aged Care Act 1997 (Cth), ss.2-1. 94A-1, 96-1 |
| Applicant: | SHANE MARK BUCKLEY |
| Respondent: | TERRIGAL GROSVENOR LODGE (ERINA) PTY LTD |
| File Number: | SYG 1553 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing dates: | 8 April 2014, 9 April 2014, 3 June 2014, 4 June 2014, 30 July 2014 and 31 July 2014 |
| Date of Last Submission: | 11 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Edwards |
| Solicitors for the Applicant: | TDP Lawyers Wyong |
| Counsel for the Respondent: | Ms C Ronalds SC |
| Solicitors for the Respondent: | D.C. Balog & Associates |
ORDERS
The application made on 18 July 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1553 of 2012
| SHANE MARK BUCKLEY |
Applicant
And
| TERRIGAL GROSVENOR LODGE (ERINA) PTY LTD |
Respondent
REASONS FOR JUDGMENT
On 18 July 2012 Mr Shane Mark Buckley (“the applicant”) commenced proceedings in this Court pursuant to the Fair Work Act 2009 (Cth) (“the FWA”) alleging dismissal from employment in contravention of a “general protection”.
In particular, the applicant alleged that his former employer, Terrigal Grosvenor Lodge (Erina) Pty Ltd (“the respondent”) had contravened s.340 of the FWA by taking “adverse action”, being the alleged actions by the respondent in relation to the applicant’s exercising of his workplace rights under the “Aged Care Complaints Scheme”, in accordance with the “Complaints Principles” created under s.94A-1 and s.96-1 of the Aged Care Act 1997 (Cth) (“the ACA”) (as it was at the relevant time). The principles are contained in Complaints Principles 2011 (“the Complaints Principles”), and, by process, were directed, at the relevant time, to the Aged Care Complaints Scheme (“ACCS”). Further, that the respondent failed to comply with relevant obligations under the relevant Employment Agreement (“EA”) in relation to events leading to the termination of his employment.
Prior to commencing these proceedings, the applicant made an application to Fair Work Australia pursuant to s.365 of the FWA. A certificate was issued by a Fair Work Australia Commissioner on 10 July 2012 certifying that a reasonable satisfaction had been reached that attempts at resolution of the dispute between the parties had been, or were likely to be, unsuccessful.
Background
I previously handed down an interlocutory judgment in this matter which outlines the background to the case (Buckley v Terrigal Grosvenor Lodge (Erina) Pty Ltd [2014] FCCA 1098 (“Buckley (No.1)”). Relevantly (at [4]):
“The applicant’s claim before the Court, as set out in his amended Statement of Claim (“ASOC”) filed on 9 November 2012, asserts that the applicant had been employed by the respondent as the Deputy Director of Nursing at the Matthew John Nursing Home in Erina, NSW (“the nursing home”) from 1 March 2012 to 25 May 2012. He had been employed on a probationary period of six months and his employment was terminated about three months into that period. A copy of the written notice of dismissal of employment was issued on 25 May 2012 by the Managing Director of the respondent, Ms Veronica Klumper-Peters.”
The applicant made a complaint to the ACCS, allegedly pursuant to the Complaints Principles, about a number of matters related to the management by the respondent of the Matthew John Nursing Home in Erina, NSW (“the nursing home”), sent by facsimile on 10 May 2012. This followed a previous telephone complaint to the ACCS. He made a subsequent telephone complaint to the ACCS on 16 May 2012 (see the Amended Statement of Claim (“ASOC”) at [9]).
On 16 May 2012 the applicant was directed to attend a meeting with the respondent where he was advised that he was to be suspended from performing the duties of his employment (see ASOC at [10]). He received a written confirmation of his suspension alleging “performance issues”, which were not outlined in the letter (see ASOC at [10] and SMB1 at annexure “E”).
The applicant received correspondence by letter dated 21 May 2012 requesting his attendance at an “interview” on 23 May 2012. The letter further enumerated his alleged “performance issues” and “unprofessional conduct” (see ASOC at [12] and SMB1 at annexure “G”). The meeting scheduled for 23 May 2012 was delayed such as to occur on 24 May 2012, to allow the applicant to obtain legal representation.
The applicant alleged that he was “prevented” from responding to the allegations of poor performance and unprofessional conduct at that time because the respondent did not provide full particulars of the allegations. The applicant’s employment was terminated on 25 May 2012 (ASOC at [20], see letter at annexure “I”).
As was explained in Buckley (No.1), this matter has had a protracted history before the Court (see [6] – [7]). At the close of evidence on 31 July 2014, the parties elected to provide written submissions to the Court instead of making lengthy and detailed oral submissions. The submissions ultimately filed were as follows:
1)Applicant’s submissions filed on 8 September 2014.
2)Respondent’s submissions filed on 7 October 2014.
3)Applicant’s submissions in reply filed on 19 November 2014.
4)Respondent’s further written submissions (dated 5 December 2014) and applicant’s further written submissions (dated 9 December 2014) filed before the Court on 11 February 2015, following an Application in a Case.
These submissions have informed the consideration below.
Evidence Before the Court
Before the Court the following affidavits were read into evidence by the applicant [I note the objections to evidence and findings as set out in Buckley (No.1)]:
1)The affidavit of Shane Mark Buckley affirmed on 28 March 2013 (“SMB1”).
2)The affidavit of Leone Edgar affirmed on 27 March 2013 (“LE”).
3)The affidavit of Ray Garner affirmed on 27 March 2013 (“RG”).
4)The affidavit of Shane Mark Buckley affirmed on 19 September 2013 (“SMB2”).
5)The affidavit of Shane Mark Buckley affirmed on 23 July 2014 (“SMB3”)
The following affidavits were read into evidence by the respondent:
1)The affidavit of Veronica Klumper-Peters, Managing Director, affirmed on 12 August 2013 (“VKP1”).
2)The affidavit of Veronica Klumper-Peters, Managing Director, affirmed on 1 July 2014 (“VKP2”).
3)The affidavit of Veronica Klumper-Peters, Managing Director, affirmed on 22 August 2014 (“VKP3”).
Relevant Legislation
Section 340 of the FWA is as follows:
“340 Protection
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4‑1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4‑1).”
Section 341 of the FWA is in the following, relevant, terms:
“341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her employment.
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument:
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2‑2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument…”
Section 12 of the FWA defines a “workplace instrument” and “workplace law” as follows:
“workplace instrument means an instrument that:
(a) is made under, or recognised by, a workplace law; and
(b) concerns the relationships between employers and employees.
workplace law means:
(a) this Act; or
(b) the Fair Work (Registered Organisations) Act 2009; or
(c) the Independent Contractors Act 2006; or
(d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).”
Section 361 of the FWA is in the following terms:
“361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.”
The ACA, at Division 2-1, states the following as its “objects”:
“2-1 The objects of this Act
(1) The objects of this Act are as follows:
(a) to provide for funding of aged care that takes account of:
(i) the quality of the care; and
(ii) the type of care and level of care provided; and
(iii) the need to ensure access to care that is affordable by, and appropriate to the needs of, people who require it; and
(iv) appropriate outcomes for recipients of the care; and
(v) accountability of the providers of the care for the funding and for the outcomes for recipients;
(b) to promote a high quality of care and accommodation for the recipients of aged care services that meets the needs of individuals;
(c) to protect the health and well‑being of the recipients of aged care services;
(d) to ensure that aged care services are targeted towards the people with the greatest needs for those services;
(e) to facilitate access to aged care services by those who need them, regardless of race, culture, language, gender, economic circumstance or geographic location;
(f) to provide respite for families, and others, who care for older people;
(g) to encourage diverse, flexible and responsive aged care services that:
(i) are appropriate to meet the needs of the recipients of those services and the carers of those recipients; and
(ii) facilitate the independence of, and choice available to, those recipients and carers;
(h) to help those recipients to enjoy the same rights as all other people in Australia;
(i) to plan effectively for the delivery of aged care services that:
(i) promote the targeting of services to areas of the greatest need and people with the greatest need; and
(ii) avoid duplication of those services; and
(iii) improve the integration of the planning and delivery of aged care services with the planning and delivery of related health and community services;
(j) to promote ageing in place through the linking of care and support services to the places where older people prefer to live.
(2) In construing the objects, due regard must be had to:
(a) the limited resources available to support services and programs under this Act; and
(b) the need to consider equity and merit in accessing those resources.”
The relevant part of the applicant’s EA in relation to dispute resolution was in the following terms (see SMB1 at Annexure “B”):
“9. Dispute resolution
9.1 In the event of a dispute about any matter, under this Agreement, or the NES, in the first instance the parties must a/tempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.
9.2 If a dispute about a matter arising under this agreement or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to FWA.
9.3 Unless otherwise stated in this Agreement, the parties agree that FWA shall have the power to do all such things as are necessary for the just resolution of the dispute including mediation, conciliation and finally arbitration.
9.4 Where the matter in dispute remains unresolved, the FWA may exercise any method of dispute resolution permitted by the Act that ii considers appropriate to ensure the settlement of the dispute.
9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause. ·
9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.”
The Applicant’s Case
The applicant submits that his case has two dimensions. First, that the respondent terminated his employment because it became aware of his complaint under the ACA and the Complaints Principles, or that he proposed to make such a complaint, or to prevent him from making any further complaint. Second, and arising from that context, that the respondent terminated his employment in a manner so as to prevent him from relying on his EA in relation to dispute resolution. Further, related to both, that the respondent made “unfounded and unreasonable” allegations of poor performance because of the complaint under the ACA and ACCS, or to prevent him from utilising the dispute resolution mechanism under the EA.
The applicant submitted that, on the evidence before the Court, he made a complaint under the ACA and the Complaints Principles in relation to the respondent’s conduct in, and management of, the workplace, the nursing home (see the document filed with the Court on 15 May 2014 and tendered before the Court as “A5” – reproduced at Schedule 1 below).
The applicant submitted that the balance of the evidence showed the respondent did suspend, and then terminate, his employment, at least in part, because he had made, or intended to make, a complaint about the respondent’s compliance with the ACA. The applicant submitted that his complaint, or intention to complain, was within the definition of an exercise of a “workplace right”, with reliance on a number of authorities that had “widely defined” the term, as set out in the FWA (Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526 (“Aircraft Engineers Association (2011)”), Bayford v Maxxia [2011] FMCA 202; (2011) 207 IR 50 (“Maxxia”), Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525).
The Respondent’s Case
The respondent submitted that the application could not be made out for three reasons (see [13] of the respondent’s submissions). For the reasons set out below, only the first and second are relevant to this consideration. That is, the applicant was unable to establish that the claim is “properly made” under the provisions of the FWA, in that the applicant did not have the workplace right he claimed, and further, that the applicant has not established the objective facts on which he relies.
The respondent submitted that both the ACA and ACCS did not fall within the definition of a “workplace law” and, specifically, “any other law of the Commonwealth”, as the ACA did not “regulate the relationships between employers and employees as required in the definition of workplace law”. Similarly, that while the ACCS creates a mechanism to make complaints, it also does not regulate the relationships between employers and employees.
The respondent referred to Justice Barker’s statement in Aircraft Engineers Association (2011) at [234]:
“Both parties recognise that the Court must give effect to the definitions of ‘workplace law’ and ‘workplace instrument’ as they are found in s 12 FW Act. In my view, the argument of the respondent, to the effect that the Transitional Act does not of itself regulate relationships between employers and employees when it provides for the continuance of an ITEA, should be rejected. I understand the argument put on behalf of the respondent. But it advances a constrained view of a law ‘that regulates the relationships between employers and employees’. It depends on that expression being interpreted to mean a law that directly impacts, whether in a positive of negative way, or authorises a court or some other body to make decisions that directly impact, on, or on the exercise of, particular rights, duties or obligations that define the relationships of employers and employees. No doubt laws of such a description would very clearly be within the definition of a ‘workplace law’ provided by s 12 of the FW Act. However, that is not to say a law that preserves the underlying agreement that gives rise to such rights, duties and obligations does not also answer the description.”
Further, it drew attention to Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222; (2012) 208 FCR 386 (“Sunstate”) at [33] – [34] per Logan J:
“[33] A regulation which, like reg 51 or reg 215(9) of the CA Regs, imposes a duty on a person as an incident of undertaking a particular task in the course of employment – ‘engaged in the maintenance of an Australian aircraft’ (reg 51) or as an incident of a particular type of employment - operations personnel of an operator (reg 215(9)) does not regulate the relationship between that person and his employer. Having regard to the dictionary definitions cited by Barker J in ALAEA v International Aviation Service, each of these provisions in the CA Regs might readily be characterised as a provision which ‘regulates’ the conduct of a person to whom it applies but the object of that regulation is not the relationship between that person as an employee and his employer but rather that of air safety by the imposition of particular reporting obligations. Common to the definitions of “workplace instrument” and ‘workplace law’ in s 12 of the Fair Work Act is the object of the relationship between employer and employee. Provisions which do no more than use the status of employer or employee as an incidental touchstone for the imposition of duties serving other ends do not fall within the terms of these definitions.
[34] Insofar as there may, because of this feature of the definitions, otherwise be room for debate as to whether provisions in statutes or regulations dealing with occupational health and safety matters had as their object the relationship between employer and employee, that debate is quelled by the express inclusion of such provisions in the definition of “workplace law”. That express inclusion also sets the limit of the additional reach of the definition.”
The respondent also submitted that the applicant had not established that he sought to complain of matters that were capable of being resolved through the disputes provision in the EA, and in the event that there were such matters, that he was “prevented” from exercising his rights under the EA by the respondent.
The respondent submitted that the applicant did not make any submissions or provide any evidence on what matters he sought to raise under the dispute resolution provisions of the EA. Further, in relation to the complaint contained in A5, the respondent submitted that none of the matters raised there could be said to arise under the National Employment Standards (“NES”) (at Part 2-2 of the FWA), as it is referred to in the EA. The complaints raised in A5 also do not fit within the “permitted” matters contained in the EA.
The respondent submitted that it was not sufficient to “simply allege” that he had a workplace right and that he was subject to adverse action (Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22).
The respondent submitted that the matters complained of in A5 were not matters that he was able to make complaints about in relation to his employment under s.341(1)(c)(ii) of the FWA. Further, that the complaints were “not matters underpinned by an entitlement or right”. With reference to Harrison v In Control Pty Ltd (2013) 230 IR 452 (see at [63], [72], [78] and [80] per Judge Burnett), the respondent submitted that for the complaint contained in A5 to “enliven rights”, they must be of a kind that would invite the intervention of bodies having capacity to enforce compliance in relation to employment matters (see [75] of the respondent’s submissions).
Consideration
The immediate question for the Court is whether the applicant had a workplace right as defined by the FWA, and as explained by the relevant authorities, in relation to the ACA and the Complaints Principles, and, subsequently, the EA. If the Court does not find there are such workplace rights or workplace laws, it will not be necessary, or appropriate, to consider the remainder of the applicant’s case and evidence. For the reasons set out below, I find that the applicant did not have the workplace right he asserts in relation to the ACA and the Complaints Principles.
As stated above, the applicant’s case is as follows as presented in his ASOC. The applicant was employed by the respondent from 1 March to 25 May 2012. While employed by the respondent he made a complaint about a number of matters under the ACA and in accordance with the Complaints Principles. These matters concerned certain conduct, practices and incidents that he alleged had occurred at the aged care facility managed by the respondent.
The making of this complaint was said to be an exercise of a “workplace right” by the applicant, as that term is defined and understood pursuant to the FWA.
As a result of making this complaint, at first, the applicant’s employment was suspended by the respondent, and subsequently his employment was terminated. The termination of employment was also said to have occurred to prevent him from making further complaints. The applicant says that this was, and involved, an “adverse action” by the respondent under the FWA.
Further, that in relation to the suspension and termination of employment, the respondent unfairly breached or ignored the processes, as set out in the relevant EA, that was in force at the time of his employment. The EA was a “workplace instrument” under the FWA.
As stated above, the application to the Court was made under the FWA and asserts breaches of that Act. The applicant contends that he has “workplace rights” under the ACA, and relevant Complaints Principles, and subsequently under the relevant EA.
The application, and the first of the respondent’s arguments, directs immediate attention to the relevant statutory scheme under the FWA. “Workplace Rights” are set out at Division 3 of Part 3-1 of the FWA.
As is plain, s.340 of the FWA seeks to provide protection to certain persons who experience adverse treatment as a result of “adverse action” taken, relevant to the current case, by an employer in relation to an employee. The circumstances of “adverse action” are set out at s.342 of the FWA. That protection seeks to prohibit “adverse action” in circumstances where, relevant to the claim in the current case, the employee has a “workplace right” as defined in s.341 of the FWA.
The terms of s.341 of the FWA are reproduced above (at [13]). As can be seen, the term “workplace right” has a number of different meanings. I agree with the respondent that the applicant, in his pleadings and submissions, has not particularised which part of s.341 of the FWA he relies on, which creates some difficulty in understanding the detail of his case, and the case which the respondent is required to answer (R v Associated Northern Collieries (1910) 11 CLR 738 and Dye v Commonwealth Securities Limited [2010] FCA 720).
In his submissions of 8 September 2014 (“the first submissions”), the applicant set out the terms of s.341(1) of the FWA. This is followed by the words “Emphasis Added”. The difficulty however is that given the font size employed, and, possibly, the quality of reproduction as a result of the method of filing, it is not immediately apparent what part has been emphasised.
It appears, given the use of the words “emphasis added”, that the applicant did not intend to rely on all of s.341(1) of the FWA. Having regard to his submissions generally, it appears that he seeks to rely on s.341(1)(c) of the FWA. Although it is not clear whether the reliance is on s.341(1)(c)(i), or (ii), or both. In all, I understood the applicant to press his “workplace rights”, as that term is defined, with reference to “complaints and inquiries”.
The applicant initially submitted that there was “no question” that he had workplace rights under the FWA and the EA. Further, that the ACA and the Complaints Principles are also “workplace rights” within the relevant meaning in the FWA (see [9] of the applicant’s first submissions).
In subsequent submissions, the applicant stated (at [5](a) of the applicant’s submissions in reply of 19 November 2014 (“the second submissions”)):
“There can be no assertion that in so far as the Applicant relies upon the relevant enterprise agreement he has workplace rights within the meaning of the FWA. This case is on all fours with a similar case in which an employee was successful in arguing that she was dismissed in order to prevent her relying upon her workplace rights to notify a dispute under an enterprise agreement, in circumstances where she was dismissed for purported misconduct. In that case, it was held that the employee was not required to notify the Respondent of her reliance on the relevant workplace right under the EBA, it was sufficient she had that right under the EBA. The Court did not believe the Respondent that the Applicant had engaged in misconduct and so the Respondent’s action was by inference aimed at preventing her accessing those rights.”
[Footnotes omitted] [Emphasis added.]
I understood the reference to “no assertion” to be a typographical error as, in context, and with reference to his first submissions, what was meant was “no question” or “no doubt”.
A point of dispute between the parties was the breadth or scope of the interpretation to be given to the phrase “workplace law”. The applicant said it has been, and should now be, given a “wide interpretation” (see Aircraft Engineers Association (2011) at [282]).
The terms of “workplace law” and “workplace instrument” are defined at s.12 of the FWA (see above at [14]). It may be said that the term “workplace law” has been “widely” defined, as the applicant submitted. In Maxxia, the Court found that “workplace law”, with reference in context to the definition of “workplace law” at (d), also includes other legislation (including state legislation), which is also concerned with relationships not confined to workplace relationships (see Maxxia at [141]).
This “broader” view is emphasised in the applicant’s submissions with reference to Aircraft Engineers Association (2011) at [235] – [239] per Barker J:
“[235] In my view, the Transitional Act ‘regulates the relationships between employees and employers’ by expressly providing that an ITEA has force and effect and continues to govern the relationship between an employee and employer. In this regard it is useful to note that the verb ‘regulate’ (which is not defined in the WR Act) is defined by the Macquarie Dictionary, 4th Edition, in the following ways:
1. to control or direct by rule, principle, method, etc.
2. to adjust to some standard or requirements, as amount, degree, etc: to regulate the temperature
3. to adjust so as to ensure accuracy of operation: to regulate a watch.
4. to put in good order: to regulate the digestion.
The Shorter Oxford English Dictionary, 5th Edition, defines ‘regulate’ as:
1. control, govern, or direct by rule or regulation: subject to guidance or restriction: adapt to circumstances or surroundings. Bring or reduce (a personal group) to order.
2. alter or control with reference to some standard or purpose; adjust (a clock or other machine) so that the working may be accurate.
[236] For the purposes of administrative law, courts have contrasted the concept of regulation with that of prohibition. In Country Roads Board v Neale Ads Pty Ltd [1930] HCA 5; (1930) 43 CLR 126, at 133, Knox CJ, Starke J and Dixon J noted that the word ‘regulate’ primarily bears a restrictive meaning, which implies the continued existence of the thing to be regulated. By contrast, the power to prohibit an activity totally carries with it an understanding that the activity may be totally prohibited or permitted subject to some form of regulation.
[237] The Transitional Act, by recognising and giving legal effect to an ITEA, gives legal life to an agreement which itself prescribes the rights, duties and obligations governing an employment relationship and assumes its continued existence. Given that the agreement is properly characterised as one which regulates the relationship between the employee and the employer, so too, in my view, is a law which recognises and gives legal life to the agreement. Put another way, the law thus adapts the agreement to the circumstances of the employee and employer and, in that sense, regulates the relationship, or controls it. I am not satisfied that the legislative history recounted above and relied upon by the respondent requires any different view to be adopted.
[238] In these circumstances, I am satisfied that the Transitional Act is a ‘workplace law’ and consequently the agreement is a ‘workplace instrument’.
[239] I should add that, in my view, for the same reasons, the Transitional Act plainly ‘concerns’ the relationship between employees and employers, as required by the s 12 FW Act definition of a ‘workplace instrument’.”
In this context, the respondent drew attention to Sunstate at [33] per Justice Logan. The argument was that his Honour “limited” the concepts of both “workplace instruments” and “workplace law”. The principle to emerge was as follows (Sunstate at [33]):
“A regulation which, like reg 51 or reg 215(9) of the CA Regs, imposes a duty on a person as an incident of undertaking a particular task in the course of employment - ‘engaged in the maintenance of an Australian aircraft’ (reg 51) or as an incident of a particular type of employment - operations personnel of an operator (reg 215(9)) does not regulate the relationship between that person and his employer. Having regard to the dictionary definitions cited by Barker J in ALAEA v International Aviation Service, each of these provisions in the CA Regs might readily be characterised as a provision which ‘regulates’ the conduct of a person to whom it applies but the object of that regulation is not the relationship between that person as an employee and his employer but rather that of air safety by the imposition of particular reporting obligations. Common to the definitions of ‘workplace instrument’ and ‘workplace law’ in s 12 of the Fair Work Act is the object of the relationship between employer and employee. Provisions which do no more than use the status of employer or employee as an incidental touchstone for the imposition of duties serving other ends do not fall within the terms of these definitions.”
[Emphasis added.]
The respondent’s position is that neither the ACA nor the Complaints Principles meet the definition of workplace law for similar reasons as advanced in Sunstate. The applicant argues that relevant parts of the Complaints Principles, consistent with the ACA, rely on issues going to care provided in the aged care industry, and were matters about which the applicant made his complaints. In that light, the applicant submitted that he made complaints about matters which clearly regulate the relationship between employers and employees in the aged care industry.
The applicant submitted that Sunstate is not inconsistent with his submission that he made complaints about matters which were concerned with, and regulated, the relationship between employers and employees in the aged care industry. He submitted that his complaint had a direct impact on the health and safety of aged care facility occupants. He sought to draw an analogy with work, health, and safety laws, which are referred to as “workplace laws” within the meaning of the FWA (with reference also to Maxxia, see further below at
[69] – [70]).
However, as an alternative position, the applicant submitted the following. One, that Sunstate was, with respect, “plainly wrong” because it put a “gloss” on the words “workplace law” as defined in s.12 of the FWA.
There was no express submission that this assertion was put “protectively”. However, I cannot understand it as being otherwise. Given that Sunstate was decided by a superior Court, it is not open to this Court to say it was wrongly decided. That submission cannot assist the applicant in the current case before the Court.
Two, that Sunstate is not “strictly binding” on this Court. The applicant said this was noted by Judge Riley in Austin v Honeywell Ltd [2013] FCCA 662 (“Austin”) at [59]:
“Sunstate was not a decision on appeal. Consequently, it is not strictly binding on this court. Nevertheless, for reasons of judicial comity, I ought to follow it unless I am satisfied that it is plainly wrong. I am not so satisfied, so I do follow Sunstate.”
[Emphasis added.]
I respectfully disagree with the certainty with which the second sentence above is expressed. I note that there is some authority to support the view expressed in Austin (see Minister For Immigration And Multicultural And Indigenous Affairs v SZANS [2005] FCAFC 41 at [35] – [39] per Weinberg, Jacobson and Lander JJ, and the reference there to NAAT v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 136; (2002) 196 ALR 376).
However, this must be seen in light of the observation in subsequent Full Court authority, in Suh v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515 (“Suh”) at [29] per Spender, Buchanan and Perram JJ:
“The Federal Magistrate thought that the decision in Kim should be followed in preference to that in Tvarkovski because Lander J was ‘sitting as the Full Court of the Federal Court on appeal from [the FMCA]’. There is no tension between Tvarkovski and Kim and it was therefore not necessary to approach the matter that way. Furthermore in Kim, although Lander J was exercising the appellate jurisdiction of the Court, he was sitting as a single judge and not as the Full Court (see Federal Court of Australia Act 1976 (Cth), s 25(1AA)). The Federal Magistrate was correct to regard herself as bound by Kim. That would be so whether it was a judgment of a single judge or a Full Court. However, we wish to enter a general caveat against any notion that the authority of judgments of single judges of the Court waxes and wanes according to whether they are sitting as single judges in the Court’s appellate jurisdiction or in the Court’s original jurisdiction and, if the former, on appeal from any particular court or judicial officer. The matter was not the subject of argument and we will, accordingly, do no more than register our concern that the true position may have been misunderstood.”
[Emphasis added.]
In light of Suh, I subsequently said in Patel v Minister for Immigration [2011] FMCA 19 at [54]:
“…Distinctions between the effect on this Court of judgments of the Federal Court as between the appellate and original jurisdiction are unhelpful. The Federal Court is a superior court to this one. This is the inferior court...”
In all, therefore, in the current case I follow what Justice Logan said in Sunstate. I note that Aircraft Engineers Association (2011), relied on by the applicant above, was considered in Sunstate (at [20] – [22]). The Court said (Sunstate at [23]):
“In neither ALAEA v International Aviation Service nor Barnett v TIO was it necessary for the Court to examine the meaning of the statutory definitions at other than a general level of abstraction. That was because, on any view, the employment agreement under consideration in ALAEA v International Aviation Service regulated relations between employer and employee. It was thus but a small, logically consistent step to characterise the provision of the Transitional Act preserving it as a law of that character. This case is different. As a matter of initial impression, it seems odd to regard either the CAA or the regulations made under that Act, the CA Regs as laws which either ‘concern’ (workplace instrument definition) or ‘regulate’ (workplace law definition) relationships between employers and employees. Yet reg 51 and reg 215(9) of the CA Regs do impose particular duties on employed maintenance personnel.”
The immediate contest between the parties is that the applicant says that the right to make a complaint under the ACA and the Complaints Principles is a “workplace right” within the meaning of s.341 of the FWA.
The respondent says that neither the ACA nor the Complaints Principles meet the definition of “workplace law” and therefore cannot be a source of a “workplace right”.
The question, therefore, is did the ACA and the Complaints Principles regulate the relationship between the applicant and his then employer, the respondent, at the relevant time. Further, do these “…do no more than use the status of employer or employee as an incidental touchstone for the imposition of duties serving other ends…” and therefore do “…not fall within the terms of… workplace law” (with reference to the principle set out in Sunstate at [33], see above at [46]).
The applicant directs attention to s.2-1 of the ACA, setting out the objects of that Act, and, in particular, to s.2-1(1)(c) of the ACA, which states that an object of the ACA is “to protect the health and well‑being of the recipients of aged care services”.
The applicant submitted in his first submissions (at [16]):
“The objects make it clear that the ACA is about monitoring and ensuring the quality of services for the aged and in that regard the sections in relation to complaints is a necessary component of the framework. It is also clear from the Respondent’s evidence that delivering quality services was a key performance indicator in relation to the Applicant’s position as Deputy Director of Nursing (noting the Applicant was subject to significant cross examination on this issue). In this way the ACA was a key part of the Applicant’s contract of employment and thus the Applicant is protected against any adverse action taken by the Respondent against him because the Respondent knew he made a complaint, or because it believed he would make a complaint.”
In his second submissions, he relevantly said (at [5](b)):
“The relevant section of the Aged Care Act 1997 (Cth) (‘ACA’) relied on by the Applicant and set out in the Earlier Submissions (in particular the objects at 2.1(1)(c) of the ACA), rely (in part at least), on issues going to the quality, type and level of care provided in the aged care industry and are further matters going to the health and well-being of the recipients of aged care. The quality, type and level of care and health and safety are matters about which the Applicant complained by reference to, for example, lack of appropriate staffing levels. As such, the Applicant was making complaint about matters, which clearly concern and regulate the relationship between employers and employees to the aged care industry. Further, those matters have a direct impact on the health and safety of occupants of the Respondent’s aged care facilities and so are directly analogous to work, health and safety laws that are expressly referred to as ‘workplace laws’ within the meaning of the FWA. Indeed, it is to be noted that the inclusion of occupational health and safety matters as part of the definition of what may amount to a law that regulates the relationship between employers and employees within the meaning of the term ‘a workplace law’, necessarily implies that laws regulating the employment relationship and amounting to a workplace law under the FWA may be so broad as to protect the health and safety of people who are not employees in the workplace. That is, while work, health and safety laws protect all those in workplaces (i.e. not just employers and employees but customers, clients and visitors to work sites) they clearly concern regulation of the relationship between employers and employees. That is, the question is whether the relevant legislation/regulation in fact ‘regulates the employment relationship’, not whether it is, in general, aimed at doing so.”
In my view, any plain reading of the objects of the ACA reveals that the focus of these objects, and consequently how they inform the purpose of the ACA, is the provision of aged care services, and in particular, funding for those services to take into account quality and access, to meet the needs of individuals. Further, to protect the health of recipients of aged care, and to ensure effective planning for the delivery of these services.
I agree with the respondent that the focus of the objects of the ACA is to impose duties and obligations on the providers of aged care in relevant facilities. Drawing, with respect, on what was said in Sunstate, the ACA “…does not regulate the relationship between” an employee and his or her employer.
It can also be said that the objects, on their face, with relevance to how they inform the understanding of the ACA, do not even “…use the status of employer or employee as an incidental touchstone for the imposition of duties…” (with reference to Sunstate at [33]). In my view, the objects are designed to serve different ends to those submitted now by the applicant.
The applicant plainly made some complaints about matters that are relevant to the provision of services by the respondent in the aged care context (see “A5”, as extracted at Schedule 1 to this judgment). However, that alone is not sufficient to make the ACA or the Principles a “workplace law”.
Parts 4.4 and 8-3 of the ACA, relevant to this consideration, are reproduced and attached to this judgment at Schedule 2.
To be a “workplace law”, as was made clear in Sunstate (at [32]), it must be “a law of the Commonwealth” that regulates the relationships between employers and employees. As the object of the ACA explains, it does not purport or seek to do this.
Nor does the making of complaints by the applicant about his employer, even within the context of the Complaints Principles, make those principles a “workplace instrument” or a “workplace law”. Those Complaint Principles, made under s.96-1 of the ACA, are plainly directed to a process by which “…a person may make a complaint… raising an issue about an approved provider’s responsibilities under the Act or the Principles” (see 13A.5 of the Complaints Principles). This says nothing about, let alone does it regulate, the relationship between an employer and an employee.
One dispute between the parties concerned Maxxia. The respondent submitted that the applicant’s position was that the term “workplace law” includes legislation that seeks to regulate relationships other than employment relationships. The respondent argued that this should be rejected. The applicant submitted that the respondent’s view of Maxxia was incorrect in this regard.
For current purposes it is not necessary to pursue what was said in Maxxia. I have approached the resolution of this matter on the basis that “workplace law” is defined in s.12 of the FWA, and that relevant direction for this Court is provided in Sunstate.
I further note that there was a dispute in the written submissions as to whether the applicant was “key personnel”, as that is defined in the ACA, and whether it had been conceded in the evidence of Ms Klumper-Peters. However, in light of my findings in relation to the ACA and Complaints Principles, that is not necessary to consider.
In all, I find that neither the ACA nor the Complaints Principles fall within the definition of “workplace law”. I also find, that neither can be said to be a “workplace instrument”. As a result, that part of the application to the Court which asserts that, in making his complaint, the applicant was exercising a “workplace right”, to be found in the ACA and Complaints Principles, must be rejected. That part of the application, as explained in the ASOC, that relies on the ACA and the Complaints Principles, is to be dismissed.
I agree with the applicant that the EA was made pursuant to s.185 of the FWA and does come within the definition of a “workplace instrument”. Further, the FWA is a “workplace law”.
Section 342 of the FWA sets out in tabular format the meaning of when a “person takes adverse action”. Included in this meaning, at Item 1 of s.342 of the FWA, is that an employer takes adverse action against an employee, where amongst other things, and relevant to the current case, the employer dismisses the employee. In this regard, the evidence before the Court is that the respondent dismissed the applicant from his employment by letter dated 25 May 2012 (at SMB1 at annexure “I” and Ms Klumper-Peters’ affidavit of 12 August 2012, annexure VKP1 at page 250 to page 251).
As set out above, s.340 of the FWA provides, amongst other things, that a person must not take adverse action against another person because that other person has exercised a workplace right (s.340(1)(a)(ii) of the FWA).
In the current case, as set out above, the applicant’s case is that the respondent took adverse action against him by dismissing him from his employment because he exercised a workplace right to make a complaint under the ACA, and to prevent him from making further complaints under the ACA and the relevant Complaints Principles.
As set out above, I have found that the ACA was not a “workplace law”, and nor were the Complaints Principles a “workplace instrument”. As such, the applicant cannot be said to be exercising a workplace right under either of those two.
As further set out above, s.341 of the FWA defines “workplace rights” for the purposes of the FWA. In his submissions the applicant makes clear that the workplace right he exercised was the complaint he made under the ACA and the Complaints Principles (see the applicant’s first submissions at [16] and [20] and his second submissions at [12]).
As the ACA and Complaints Principles have been found not to assist the applicant in his argument before the Court, what remains now is the question as to whether the FWA itself, or the EA, give rise to a relevant workplace right, which the applicant sought to exercise and in respect of which the respondent took adverse action.
In relation to the former, I note what was said Aircraft Engineers Association (2011) at [282]:
“When one comes to the s 340 proscribed reasons, they depend on an understanding of the expression employed in the FW Act provisions – ‘workplace right’. That expression is given meaning by s 341 of the FW Act. It speaks, as we have seen, to an entitlement or an ability to do certain things under a workplace law or workplace instrument, as those latter expressions are defined by the FW Act. They do not of themselves speak to an entitlement or ability that arises under the FW Act itself, or at the time the identified adverse action occurred. Rather, having regard to the proper construction of the meanings given to the expressions ‘workplace law’ and ‘workplace instrument’, they encompass adverse action taken because of entitlements or abilities arising under earlier Commonwealth or State legislation of a particular type.”
[Emphasis added.]
I did not understand the applicant to press any particularised entitlement which he said arises under the FWA itself. Rather, principally in the context of the complaints under the ACA and the Complaints Principles, he seeks to rely on the EA, and the respondent’s claimed breaches of the EA.
In his ASOC, the applicant stated (at [23] – [26]):
“[23] The Applicant had workplace rights under the:
a. ACA and the Principles and
b. The FWA and the EA
Within the meaning of section 340 of the FWA.
[24] The facts and matters relied upon by the Respondent to suspend the Applicant were in dispute.
[25] The Respondent’s decision to terminate the Applicant’s employment prevented the Applicant from notifying a dispute in accordance with Clause 9 of the EA under section 738.
[26] The Applicant says that the Respondent’s actions in terminating his employment were
a. To -prevent him:
1. notifying a dispute under the EA and/or
2. making further complaints in relation to the Respondent’s care of residents of Mathew John Aged Care Scheme and/or
b. because of the workplace rights he had:
1. under the EA and/or
2. to make complaints under the Scheme in accordance with the Principles.”
The applicant’s first submissions generally follow the sequence of matters asserted in the ASOC. It is with the second submissions that the applicant explains that he had “rights” to a dispute resolution procedure under the EA, and draws attention in particular, to cl.9 of the EA dealing with “Dispute Resolution”.
Here again, however, the focus is on the ACA. For example, the applicant explains ([11] of the applicant’s second submissions):
“In relation to paragraphs 39 to 59 [of the respondent’s submissions], the Applicant makes the following additional points.
a. The EA applies to both the Applicant and the Respondent under the FWA (sections 50 to 54).
b. The Applicant had rights to a dispute resolution procedure under clause 9 of the EA. A complete copy of that clause is attached to these submissions. It also provided that work would continue in accordance with the EA while the dispute resolution process was on foot.
c. The Applicant says that clause 9 must be read as providing a dispute resolution process in relation to disputes about:
i. Any matter,
ii. The EA, or
iii. The NES.
The dispute about the Respondent’s compliance with the ACA is ‘any matter’ within the meaning of the EA.
d. In the alternative, the Applicant says that the NES provides the minimum entitlements but cannot over-ride entitlements under other laws of the Commonwealth (section 131 FWA). The Applicant had entitlements regarding how he would be treated at work consistent with the ACA including not being disciplined (or dismissed) because he complied with obligations under that legislation (being a person defined as key personnel, as set out above, under the ACA) and the method for dealing with complaints (section 94A-1 of the ACA, Division 96). That would amount to a dispute over which the FWA would have power to address under clause 9.2 and 9.4 of the EA.”
[Footnotes omitted.] [Emphasis added.]
What must be emphasised here is that, even with his second submissions, the applicant’s reliance on the EA, and relevantly the NES, arises from the central proposition in his case that his “workplace rights” that he says were adversely dealt with by the respondent, primarily arose from the ACA.
Having found that the ACA is not a “workplace law” it is not possible, therefore, for it to form the basis of his argument that the making of the complaints under the ACA, and the attendant Complaints Principles, invoked the dispute resolution process in the EA, and that this amounted to a “dispute” under the FWA. That finding, therefore, provides one answer, as further explained below, to the applicant’s reliance on the EA and the NES.
Further, in the circumstances presented, I agree with the respondent that the applicant has not referred to, let alone explained, any matters that he sought to raise under the dispute resolution provisions of the EA. Again, it is important to note as explained in submissions, the EA was invoked in the context of the complaint he made, or any complaint he was prevented from making, under the Complaints Principles. That is, as set out above, that cl.9 of the EA was to be read as providing a dispute resolution process in relation to “any matter” which was said to include the ACA and the Complaints Principles (see also [12] – [13] of the applicant’s second submissions).
There are two further matters that also stand in answer to the applicant’s argument here. I note that the EA is in evidence in SMB1 at annexure B. Clause 9 is extracted above at [17].
First, the references to “a dispute about any matter…” as it appears at cl.9.1 of the EA is in my view, limited by the terms of that clause. At first glance the use of a comma after the word “matter”, as it appears in the first line of cl.9.1 of the EA, may give rise to an argument that the dispute resolution mechanism was meant to relate to any matter, including in the applicant’s view, the ACA and Complaints Principles.
However, in my view, a fair reading, on balance, is that the reference is to “any matter” arising “under this Agreement, or the NES”. Not any matter without limit. If the words “any matter” were to be otherwise read with the limitless meaning given by the applicant, the agreement could then be said to purport to cover “any dispute” between any of the parties beyond what is set out at cl.4 of the EA (“Coverage”).
Therefore, when read in context, cl.9.1 of the EA seeks to ensure that any matter in dispute as it arises under the EA or the NES must be the subject of, at first instance, attempts to resolve the matter between the parties by discussion.
This view is made clear by the terms of cl.9.2 of the EA which sets out the subsequent steps to be taken where a dispute is not resolved by discussion between the parties.
Further, the terms of clause 9.2 of the EA are also clear. In particular, that the dispute in question is “about a matter arising under this agreement or a dispute in relation to the NES”. The relevant “matter”, therefore, is a matter arising out of the agreement, not a matter at large. This is also made clear in cl.9.2 of the EA with the express reference to the “…steps under cl.9.1…”.
In relation to the NES, the applicant’s position is helpfully summarised in his second submissions at [11](d) (see above at [84]). Again, the basis for the making of the complaint is said to be the ACA, and that it was the basis for the dispute between the parties which is caught by cl.9 of the EA, and thereby referable to the FWA (see at cl.9.2 and 9.4 of the EA). Given what is set out above in relation to the ACA and workplace rights, this does not assist the applicant.
Nor, it must be noted, beyond assertion, does the applicant set out in his submissions how the NES could otherwise assist him in his application now. It is important to note, again, that the applicant’s reliance on the EA is also made for the purpose of making the argument that the respondent did not follow the dispute resolution procedures set out there, and by extension, as the EA related to the NES.
I note the findings above, about the ACA and the applicant’s reliance on it. Another difficulty for the applicant is that he has not sought to further explain the relationship between the complaint that he made under the ACA and the Complaints Principles, and the EA or the NES. That explanation given, as set out above, was the assertion that the ACA was a “workplace law” and that the respondent had not followed the process in the EA in relation to this exercise of a workplace right under the ACA.
The applicant’s submissions do not satisfactorily explain how the matters raised in the complaint involving the payment of bonds, funds relating to patient comfort, fire evacuation, senior staff resignations, the attitude of other staff, the difficulties faced by suppliers of goods and services to the aged care facility in receiving payment for these, and concerns about the engagement of “Agency RN’s”, were matters coming within the EA, or for that matter the NES.
As set out above, these matters were said by the applicant to arise from the ACA and obligations under that Act. The applicant has made no submission, or provided any satisfactory evidence, that he sought to raise these concerns under the dispute resolution mechanism of the EA, or even more broadly under the EA, and was prevented from doing so by the respondent. In short, it cannot be said that a link between the EA and the making of the complaint, and indeed the intention to make further complaints, has been established.
On the evidence, at its highest, the applicant made a complaint to the ACCS under the ACA and the Complaints Principles. It cannot be said that the EA or the NES were at the relevant times, the basis for his complaint, or that the matters which were the subject of the complaint, were matters under the EA or NES. Indeed, the thrust of the applicant’s submissions, even in relation to dispute resolution at cl.9 of the EA, make clear that the basis of the complaint was the ACA. The applicant’s ASOC, in this regard, is also not made out and should be dismissed.
I note that the terms of the ASOC, in part, do seek to directly engage the EA. It can be allowed that the ASOC makes distinct reference to the applicant’s claimed rights under the ACA and Complaints Principles, (to make the complaint to the ACCS), and then to the EA. It is not entirely clear however, when regard is had to the applicant’s submissions, as to how this engagement is to be seen as a part of the applicant’s case before the Court.
In the ASOC, the two appear to be intertwined into one complaint before the Court. For example, [26] of the ASOC. By its placement in the sequence of assertions raised in the ASOC and having regard to the nature of what is asserted there, when read in context, appears to be a “concluding” summary of the applicant’s case.
In essence, with reference to [26] of the ASOC, the applicant’s case is that the applicant’s employment was terminated to prevent him notifying a dispute under the EA “and/or” prevent him from making complaints under the ACA or the Complaints Principles. He had a “workplace right” under the EA “and/or” under the ACA and Complaints Principles.
The applicant’s submissions are clear in relation to the ACA and the Complaint Principles. At [1] of his first written submissions, the applicant makes plain that his case is founded on the assertion that his employment was terminated because he made, or proposed to make, complaints under the ACA which were consistent with the Complaints Principles.
In that regard, the applicant’s first written submissions identify the issues he wishes to pursue as being that the respondent knew that he had, or proposed to make a complaint under the ACA and Complaints Principles (see [4] of the applicant’s first written submissions). Further, whether there was causal connection between the termination of his employment and the respondent’s knowledge of the complaint ([5] of the applicant’s first written submissions).
Following an outline of what is said to be relevant legislation and case law, the submissions then proceed to essentially address the issue of “workplace right” in the context of the ACA and the Complaints Principles ([15] – [20] of the applicant’s first written submissions).
What then follows is a lengthy recitation and assessment of evidence given by the applicant, Mr Garner, Ms Edgar and Ms Klumper-Peters ([22] – [103] of the applicant’s first written submissions). There are some references here to evidence that may form part of an argument relevant only to the EA. For example, the references to the evidence of Ms Edgars and the applicant, that the applicant’s work performance, while employed by the respondent, was not “deficient” (see at [67] of the applicant’s first written submissions). Further, at [95] (when also read in context of [90] – [94] of the applicant’s first written submissions), with reference to Ms Klumper-Peter’s evidence, the submission is made that the respondent “concocted reasons to sack the Applicant”. Even further, in this regard, the complaints made by [or proposed to be made by] the applicant were not matters which would justify summary dismissal of his employment (see also [89] and [97] of the applicant’s first written submissions).
What is important to note is that while these propositions are put as arising from the evidence, what is missing, in the submissions, is an express line of argument linking these references only to the EA.
The focus of the “Assessment of Evidence” ([22] – [103] of the applicant’s first written submissions), on any fair reading, was to promote the proposition that the applicant’s evidence was to be preferred to that of the respondent. Plainly, there can be no criticism, of itself, of that approach. The difficulty, however, is that there was no subsequent analysis in the submissions to expressly link the applicant’s propositions, said to arise from this review of the evidence to “the matter” possibly arising from the EA, and to which reference is made in the ASOC.
What can also be said is that even in the context in which these propositions are made, the concluding focus is squarely on the matter of credibility, rather than the EA.
For example, at [89] of the applicant’s first written submissions, when reviewing certain evidence as to whether the applicant received, or did not receive, an email dated 27 March 2012, from Ms Klumper-Peters (see VKP-1 at pp 60-61) in which Ms Klumper-Peters set out her concerns about an “action plan audit” provided by the applicant (“…inadequate and in the wrong format…”), the emphasis, in the submissions, again, was on credibility, and whose evidence was to be preferred, rather than an expression of the link between that “preferred evidence” to the EA ([89] of the applicant’s first written submissions ends with the assertion that the evidence reflects “poorly” on Ms Klumper-Peters).
The applicant’s second submissions do not advance this matter in any substantive way. The references to the EA are found at [5] (a) and [11] (a) – (c) (noting, of course, that the second submissions were properly put in reply to the respondent’s submissions).
The first reference (at [5](a)) is to assert that the applicant’s reliance on the EA is in the context of an assertion that he has “workplace rights” within the FWA. As set out elsewhere above in this judgment, I accept that the EA is a “workplace instrument”.
The second reference (at [11](a) – [11](c)) is to assert that the EA applies to both the applicant and the respondent, and that the applicant had rights to a dispute resolution procedure under the EA in relation to disputes about “any matter”, the EA and the NES. I note and rely on my findings above in relation to the applicant’s reliance on the phrase “any matter”.
As stated above, the applicant relies on the EA to assert that he was denied the opportunity to exercise a workplace right under the EA. This was particularised with reference to the dispute resolution process set out at clause 9 of the EA. That is, he was prevented from being able to exercise that right because of the conduct of the respondent.
The chronology relevant to this claim, as it arises from the evidence is as follows (see also [5] – [8] above):
1)On 10 May 2012, the applicant made a complaint with reference to the various parts of the ACA and arising from the ACA, to the ACCS.
2)On 16 May 2012 the respondent directed the applicant to attend a meeting. At the meeting, he was told that he was suspended from performing his duties.
3)He received written confirmation on 16 May 2012 (see SMB1 at annexure “E”).
4)By letter dated 21 May 2012 the applicant was requested to attend a meeting with the respondent, scheduled for 23 May 2012 (see SMB1 at annexure “G”).
5)The meeting was rescheduled to 24 May 2012 to enable the applicant to obtain legal representation (see SMB1 at [39]).
6)The applicant’s employment was terminated on 25 May 2012 (see SMB1 at annexure “I”).
The relevant dispute between the parties includes a difference as to the reason for the termination of employment. As set out above, the applicant asserts the termination was in response to his having made a complaint, or to prevent further complaints. The respondent says that the termination of the applicant’s employment occurred because of concerns with the applicant’s work performance.
The applicant’s submissions made detailed reference to a range of matters relevant to this period. This included the question of whether his work performance was poor, and below the required standard, and whether this was discussed with him prior to the suspension and prior to the termination of his employment.
Further, the submissions canvassed matters said to inform these questions, include the applicant’s knowledge and involvement in the development of a continuous improvement plan for the respondent’s activities, relevant “job descriptions” and whether the respondent could rely on any job description, including that of the Director of Nursing to show that the applicant’s work performance was poor.
Further, the submissions focussed on the evidence relevant to the complaint made to the ACCS (under the ACA and with reference to the Complaints Principles), and the basis for the applicant being able to raise the matters set out in the complaint.
While the submissions in this regard were detailed and comprehensive, what must stand at the centre of the current consideration, given the relevant parts of the ASOC, is the EA, and in particular, the dispute resolution procedure at cl.9 of the EA.
Putting to one side the ACA and the Complaints Principles, the question, in relation to the EA, given that it is a “workplace right”, is whether the applicant’s employment was terminated to prevent him from exercising a right under the EA to the dispute resolution procedure set out there, and that the respondent, thereby, took adverse action against the applicant in contravention of s.340(1) of the FWA.
The applicant’s case is that he was denied a fair opportunity to exercise his workplace right (under the EA) because he was not given particulars as to the reasons which were said to have led to the suspension of employment, and the relatively short time between the suspension and the termination of employment. This was also said to be in a context of the timing of his complaint to the ACCS and the suspension.
I agree with the respondent that the applicant has not provided satisfactory evidence that he was prevented from exercising his workplace right under cl.9.1 or 9.2 of the EA.
The applicant was on notice, at least, as at 16 May 2012 that the respondent had concerns about his work performances. He obtained legal assistance. The respondent re-scheduled the meeting initially intended for 23 May 2012 to enable his solicitor to attend.
The applicant submits that he was not required to notify the respondent that he had a workplace right under the EA. It must be noted, again, that that “workplace right” on which the applicant focusses on in this context is concerned with dispute resolution, not the “right”, or ability, to make complaints under the ACA (with reference to Stanley v Father Michael Court [2014] FCCA 156 (“Stanley”)).
It is clear that the applicant had a “workplace right” under the EA which is a “workplace instrument” under the FW Act. I understood the respondent’s argument to be, however, not that the applicant failed to notify the respondent of this right, but that he has provided no evidence to say he was prevented from pursuing (notifying) a dispute pursuant to cl.9.2 of the EA. In the circumstances presented, I accept that submission.
As to the matter of fairness, the respondent referred to Jones v Queensland Tertiary Admissions Centre Ltd(No 2) [2010] FCA 399; (2010) 186 FCR 22 per Collier J at [119] – [122] (see respondent’s written submissions at [177]):
“[119] It is clear from s 12 of the Act that ‘action’ includes inaction, and for the purposes of s 342 would extend to a failure by an employer to do an act.
[120] However s 340 and s 342 of the Act entail a consideration of a legal question, namely whether intentional actions of the employer have had the effect described in s 342 for a prohibited reason. This requires an identification of the particular actions of the employer, which allegedly have, inter alia, injured the employee in his or her employment, or altered the position of the employee to the employee’s prejudice.
[121] A claim by an employee that the employer has failed to accord natural justice and/or fair process to the employee raises different issues, including consideration of whether the rules of natural justice are applicable in particular circumstances and then whether, on the facts, they have been applied. Such a claim does not sit easily with allegations of adverse action within the meaning of s 342 of the Act. One might as well, for example, make a general claim that the employer has acted in breach of the contract of employment, and that this is ‘adverse action’ within the meaning of s 342. Such a claim would, in my view, be misconceived for the same reason.
[122] On balance, I do not think that an alleged failure by an employer to accord natural justice and/or fair process to an employee is “adverse action” within the meaning of s 342 of the Act.”
In this light, the circumstances of the current case relevantly include the fact that the applicant’s employment with the respondent commenced on 1 March 2012. At the time of the suspension of employment, just over two months later, he was still in a period of probationary employment.
That fact alone is not determinative of the issue in dispute. The applicant would still have had the “right”, pursuant to cl.9 of the EA, to pursue what is set out there. The relevance of this, in these circumstances, however, is that it provides context to the resolution of the dispute, and to the modalities of any resolution, including matters of timing.
Ultimately, there is a distinction to be drawn between a right arising from the EA, in this case, relevantly cl.9 of the EA (which the applicant did have), notifying the respondent of this right, as opposed to having the right (with reference to the applicant’s reliance on Stanley), and separately pursuing that right.
It is from this distinction, and in particular, the focus in the last element referred to in [130] above, that I understand, and agree with the respondent, that the applicant has provided no satisfactory evidence in relation to the matter of whether he was prevented by the conduct of the respondent (including with reference to s.340 of the FWA) from seeking to exercise his right arising from c.9 of the EA.
The applicant’s reliance in his application on the EA, as explained in his ASOC, therefore does not succeed.
Conclusion
In all, the application should be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 21 August 2015
Schedule 1
Below is the text of the applicant’s complaint to the Aged Care Complaints Agency, sent by facsimile on 10 May 2012 (“A5”):
“To The Aged Care Complaints Agency,
As discussed by phone today, my concerns in relation to what is occurring at Mathew John Nursing Home, Erina, and also Veronica Nursing Home within Brentwood Village – note Brentwood Village was previously owned by TGL
Issues-
1. Only one RN being rostered on night duty on more than one occasion at Mathew john Nursing Home and Maxine Louise Hostel. The last occasion was on Sunday night 22 April 2012. Also I know that this is not an isolated occasion. Agency RN’s on this occasion was cancelled by the Director of care and the excuse used by the approved provider and the Director of care was that the agency cancelled at the last moment – untrue. Agency Supreme Nurses 02 90047945. Allocation sheet falsified to note that 2 RN were on duty that night. DON emailed provider Veronica Klumper-Peters to raise his concern.
2. Two pronged approach to working RN short. Nurses Now owed approx. reports $90,000 will no longer supply RN’s and Nurse Supreme Nurses having difficulty being paid. Also supply of basic nursing home commodities are delayed due to difficulty by supplier being paid.
3. Concern RE:situation I was advised that a bond from the Public Trustee was directed in writing by the approved provider into a Brentwood Village Account. Sum of bond $259,425.00. On 30 April paid into the into Brentwood Village Limited Account BSB 032 523, ACC 194154 West Gosford. (this amount now exceeds$500,000)The clients were admitted to Mathew John Nursing Home, -here are concerns when a bond is not put in a main account. On investigation, 2 possibilities – 1. TGL Property Development Account. 2. Also advised that the funds may be being used for wages at Veronica Nursing Home – currently under sanction, and appears to be in financial difficulty.
4. Patient comfort fund used on a regular basis to cover lack of petty cash to cover outdoor staff expenses, such as fuel for bus and life style expenses. The administration officer has been directed to use patient comfort finances, and then replace these funds when TGL management supplies cash for petty cash expenses.
5. Fire evacuation boards at front office incorrect. Two South Wings and no North Wing. Diagram incorrect – fire board denotes bathrooms, not bedrooms, no fire assembly signs on outside of building. Fire evacuation boxes not even close to completion, concerns fall on deaf ears.
6. In the last 4 weeks, numerous senior staff have resigned – Head of HR, Nurse educator, DON 11/5. ADON (started 1/3) looking for new position.
7. Question – if the Approved provider does not write the cheques and pay the account, then how is she the approved provider?
8. The Attitude of the Director of Care advising Mathew John Nursing Home staff at recent staff meeting that Veronica Nursing Home was sanctioned in the scheme of things for a minor reason (death of a patient minor???)
9. I have worked for Baptists Care and Adventists care and have never had reason to raise concerns to the complaints agency. I am bound by my professional, moral and ethical duty raise these concerns with the Agency. I was directed in writing by the approved provider in the last days of my relieving as the DON that while the DON is away, I was no longer the acting director of the nursing home, and was only relief director of bursing for the hostel area only. This was a direct result of me attempting to raise my concerns re staffing levels to the point at one stage. I have email confirmation of this if required. Also staff issues too many to raise.
10. The concern is that the approved provider and Director of Care feel that they are untouchable and the untrue will always prevail.
I would like it noted that if the approved provider becomes aware of the staff who have assisted me with the information that forms the basis of these complaints; then many staff will suffer.”
[Errors in the original.]
Schedule 2
The relevant parts of the ACA, at the relevant time, are extracted below:
“Part 2.1 – Approval of providers
…
Division 8 – How does a person become an approved provider?
…
8 3A Meaning of key personnel
(1) For the purposes of this Act, each of the following is one of the key personnel of an entity at a particular time:
(a) a member of the group of persons who is responsible for the executive decisions of the entity at that time;
(b) any other person who has authority or responsibility for (or significant influence over) planning, directing or controlling the activities of the entity at that time;
(c) if, at that time, the entity conducts an *aged care service:
(i) any person who is responsible for the nursing services provided by the service; and
(ii) any person who is responsible for the day to day operations of the service;
whether or not the person is employed by the entity;
(d) if, at that time, the entity proposes to conduct an aged care service:
(i) any person who is likely to be responsible for the nursing services to be provided by the service; and
(ii) any person who is likely to be responsible for the day to day operations of the service;
whether or not the person is employed by the entity.
(2) Without limiting paragraph (1)(a), a reference in that paragraph to a person who is responsible for the executive decisions of an entity includes:
(a) where the entity is a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001—a director of the body corporate for the purposes of that Act; and
(b) in any other case—a member of the entity’s governing body.
(3) A person referred to in subparagraph (1)(c)(i) or (1)(d)(i) must hold a recognised qualification in nursing.
…
Part 4.4—Consequences of non compliance
Division 64—Introduction
64 1 What this Part is about
Sanctions can be imposed on an approved provider that does not comply with its responsibilities under Part 4.1, 4.2 or 4.3. Certain procedures must be followed if sanctions are to be imposed.
Table of Divisions
64 Introduction
65 When can sanctions be imposed?
66 What sanctions can be imposed?
66A Establishment of administrator panel and adviser panel
67 How are sanctions imposed?
67A When do sanctions take effect?
68 When do sanctions cease to apply?
64 2 The Sanctions Principles
The imposition of sanctions on approved providers is also dealt with in the Sanctions Principles. The provisions of this Part indicate when a particular matter is or may be dealt with in these Principles.
Note: The Sanctions Principles are made by the Minister under section 96 1.
Division 65—When can sanctions be imposed?
65 1 Imposition of sanctions
The Secretary may impose sanctions (see Division 66) on an approved provider if:
(a) the approved provider has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3; and
(b) the Secretary is satisfied that it is appropriate to impose sanctions on the approved provider (see section 65 2); and
(c) the Secretary complies with the requirements of Division 67.
Note: Decisions to impose sanctions are reviewable under Part 6.1.
65 2 Appropriateness of imposing sanctions
(1) In deciding whether it is appropriate to impose sanctions on an approved provider for non compliance with one or more of its responsibilities under Part 4.1, 4.2 or 4.3, the Secretary must consider the following:
(a) whether the non compliance is of a minor or serious nature;
(b) whether the non compliance has occurred before and, if so, how often;
(c) whether the non compliance threatens the health, welfare or interests of care recipients;
(ca) whether the non compliance would threaten the health, welfare or interests of future care recipients;
(d) whether the approved provider has failed to comply with any undertaking to remedy the non compliance;
(da) the desirability of deterring future non compliance;
(e) any other matters specified in the Sanctions Principles.
(2) However, whether the non compliance threatens or would threaten the health, welfare or interests of current and future care recipients is to be the Secretary’s paramount consideration.
Division 66—What sanctions can be imposed?
66 1 Sanctions that may be imposed
The Secretary may, by notice under section 67 5, impose one or more of the following sanctions on an approved provider that has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3:
(a) revoking or suspending the approved provider’s approval under Part 2.1 as a provider of *aged care services;
(b) restricting the approved provider’s approval under Part 2.1 as a provider of aged care services to aged care services that are being conducted by the approved provider at the *section 67 5 notice time;
(c) restricting the payment of subsidy under Chapter 3 to the provision of care to either:
(i) care recipients to whom the approved provider is providing care at the section 67 5 notice time; or
(ii) care recipients other than those to whom the approved provider commenced providing care, through one or more specified aged care services, after the section 67 5 notice time;
(d) revoking or suspending the allocation of some or all of the *places allocated to the approved provider under Part 2.2;
(e) varying the conditions to which the allocation of some or all of those places is subject under section 14 5;
(f) prohibiting the further allocation of places under Part 2.2 to the approved provider;
(g) revoking or suspending the *extra service status of a residential care service, or a *distinct part of a residential care service, conducted by the approved provider;
(h) prohibiting the granting of extra service status in respect of residential care services, or distinct parts of residential care services, conducted by the approved provider;
(i) revoking or suspending the *certification of a residential care service in respect of which the approved provider has not complied with its responsibilities;
(j) prohibiting the charging of *accommodation bonds, or the accrual of *accommodation charges, for the *entry of care recipients to:
(i) one or more specified residential care services; or
(ii) all residential care services; or
(iii) one or more specified flexible care services; or
(iv) all flexible care services;
conducted by the approved provider;
(k) requiring repayment of some or all of any grants paid to the approved provider under Chapter 5 in respect of an aged care service in respect of which the approved provider has not complied with its responsibilities;
(l) such other sanctions as are specified in the Sanctions Principles.
66 2 Agreement to certain matters in lieu of revocation of approved provider status
(1) If revocation of the approved provider’s approval under Part 2.1 as a provider of *aged care services is imposed as a sanction, the revocation does not take effect if:
(a) the Secretary specifies, in the notice of imposition of the sanction under section 67 5, that the revocation will not take effect if, within the period specified in the notice, the approved provider agrees to whichever one or more of the following is specified in the notice:
(i) providing, at its expense, such training as is specified in the notice for its officers, employees and agents;
(ii) providing such security as is specified in the notice for any debts owed by the approved provider to the Commonwealth;
(iii) appointment by the approved provider, in accordance with the Sanctions Principles, and in accordance with section 66A 2, of an adviser approved by the Commonwealth to assist the approved provider to comply with its responsibilities;
(iv) appointment by the approved provider, in accordance with the Sanctions Principles, and in accordance with section 66A 3 of an administrator approved by the Commonwealth to administer an aged care service in respect of which the approved provider has not complied with its responsibilities;
(v) transferring some or all of the *places allocated to the approved provider under Part 2.2 to another approved provider;
(vi) such other matters as are specified in the Sanctions Principles; and
(b) within that period, the approved provider agrees accordingly.
Note: Approved providers have a responsibility under paragraph 63 1(1)(k) to comply with an agreement. Failure to comply with this responsibility can result in a further sanction being imposed under this Part.
(2) The reference in subparagraph (1)(a)(iii) to appointment of an adviser does not include appointment of the Commonwealth as an adviser.
(3) The reference in subparagraph (1)(a)(iv) to appointment of an administrator does not include appointment of the Commonwealth as an administrator.
Division 66A—Establishment of administrator panel and adviser panel
66A 1 Establishment of administrator panel and adviser panel
(1) There is to be a panel of:
(a) administrators (the administrator panel); and
(b) advisers (the adviser panel).
(2) The Secretary may appoint a person to a panel mentioned in subsection (1) if:
(a) the Secretary is satisfied that the person:
(i) has at least 3 years’ experience in senior positions in managing, or providing professional advice and support to, an aged care service or a similar undertaking; and
(ii) is not a *disqualified individual; and
(b) the Secretary is also satisfied that, if the person were appointed to the panel, there would not be a conflict of interest between the person’s duties as a member and any other interests or duties of the person; and
(c) the person is not a Commonwealth officer or employee.
(2A) Each panel is to include at least one registered medical practitioner.
(3) A person is appointed to a panel for the term stated in the instrument of appointment.
(4) The Secretary may terminate a person’s appointment to a panel by writing signed by the Secretary and given to the person.
(4A) A notice under subsection (4) must include a statement of reasons for the termination of the person’s appointment.
(5) A person may resign an appointment by writing signed by him or her and given to the Secretary.
66A 2 Appointment of advisers
(1) A person is eligible to be appointed as an adviser only if the person:
(a) is a member of the adviser panel; and
(b) has not been one of the *key personnel of an approved provider whose approval under Part 2.1 has been revoked; and
(c) has not been one of the relevant personnel of a body whose application for approval as a provider of aged care services has been refused.
(2) If the approved provider agrees to appoint an adviser, the approved provider must, within 5 working days after the *section 67 5 notice time:
(a) nominate, in writing, a proposed adviser to the Secretary; and
(b) give the Secretary written information about the proposed adviser to allow the Secretary to decide whether the proposed adviser is suitable.
(3) If the Secretary approves the proposed appointment, the appointment must be made within one working day after the approved provider is informed of the Secretary’s approval.
66A 3 Appointment of administrators
(1) A person is eligible to be appointed as an administrator only if the person:
(a) is a member of the administrator panel; and
(b) has not been one of the *key personnel of an approved provider whose approval under Part 2.1 has been revoked; and
(c) has not been one of the relevant personnel of a body whose application for approval as a provider of aged care services has been refused.
(2) If the approved provider agrees to appoint an administrator, the approved provider must, within 5 working days after the *section 67 5 notice time:
(a) nominate, in writing, a proposed administrator to the Secretary; and
(b) give the Secretary written information about the proposed administrator to allow the Secretary to decide whether the proposed administrator is suitable.
(3) If the Secretary approves the proposed appointment, the appointment must be made within one working day after the approved provider is informed of the Secretary’s approval.
66A 4 Powers of administrators and advisers
(1) The Secretary must provide to a person appointed under section 66A 2 or 66A 3 a report on the relevant aged care service which includes the following information:
(a) all relevant accreditation, certification and review audit reports on the service;
(b) the current classification of all residents;
(c) the Commonwealth subsidies paid to the service;
(d) any debts owed by the service to the Commonwealth;
(e) a summary of any relevant complaints about the service, indicating the issues raised and action taken by the service, without identifying any parties involved; and
(f) any other matters that the Secretary determines are relevant.
(2) The approved provider must provide to a person appointed under section 66A 3 all relevant information required by the person to administer the service.
(3) The approved provider must allow a person appointed under section 66A 3 to manage the service to ensure that all resident care standards are met and maintained.
(4) If a person appointed under section 66A 3 is a registered medical practitioner, the approved provider must allow the person to provide medical services to ensure that all resident care standards are met.
66A 5 Interpretation
In this Division:
relevant personnel, in relation to a body, means any of the following:
(a) if the body is not a State or Territory—a member of the group of people who are responsible for the executive decisions of the body;
(b) if the body is not a State or Territory—anyone else who is concerned in, or takes part in, the management of the body;
(c) in any case—anyone who is responsible for the overall nursing care provided by an aged care service conducted by the body;
(d) in any case—anyone who is responsible for the day to day operations of an aged care service conducted by the body, whether or not the person is employed by the body.
Division 67—How are sanctions imposed?
67 1 Procedure for imposing sanctions
(1) The Secretary must not impose sanctions on an approved provider for not complying with one or more of its responsibilities under Part 4.1, 4.2 or 4.3 unless the Secretary has completed each of the following steps:
(a) giving to the approved provider a notice of non compliance (see section 67 2);
(b) giving to the approved provider:
(i) a notice of intention to impose sanctions (see section 67 3); or
(ii) a notice to remedy the non compliance (see section 67 4); or
(iii) a notice of intention to impose sanctions in respect of a specified part of the non compliance (see section 67 3) and a notice to remedy the remainder of the non compliance (see section 67 4);
(c) giving to the approved provider notice of the Secretary’s decision on whether to impose sanctions (see section 67 5).
(2) However, paragraphs (1)(a) and (b) do not apply if the Secretary is satisfied that, because of the approved provider’s non compliance, there is an immediate and severe risk to the safety, health or well being of care recipients to whom the approved provider is providing care.
67 2 Notice of non compliance
(1) If the Secretary is satisfied that an approved provider has not complied, or is not complying, with one or more of its responsibilities under Part 4.1, 4.2 or 4.3, the Secretary may give to the approved provider a notice of non compliance.
(2) The notice must be in writing and must:
(a) set out details of the non compliance by the approved provider; and
(b) set out broadly what action the Secretary requires the approved provider to take to remedy the non compliance; and
(c) set out what sanctions under this Part can be imposed on the approved provider; and
(d) invite the approved provider to make submissions, in writing, to the Secretary addressing the matter within 14 days after receiving the notice, or within such shorter period as is specified in the notice; and
(e) inform the approved provider that the Secretary may, after considering the submissions (if any), give to the approved provider:
(i) a notice of intention to impose sanctions; or
(ii) a notice to remedy the non compliance; or
(iii) a notice of intention to impose sanctions in respect of a specified part of the non compliance and a notice to remedy the remainder of the non compliance.
(3) The Secretary must consider any submissions made by the approved provider.
67 3 Notice of intention to impose sanctions
(1) The Secretary may give to the approved provider a notice of intention to impose sanctions in respect of non compliance by the approved provider with its responsibilities under Part 4.1, 4.2 or 4.3 if the approved provider:
(a) has not made any submissions addressing the matter in response to a notice under section 67 2; or
(b) has made such submissions, but the Secretary thinks the submissions:
(i) do not propose appropriate action to remedy the non compliance; or
(ii) fail to establish that the non compliance did not occur, or is not occurring; or
(iii) do not set out sufficient reason for the non compliance; or
(iv) are otherwise unsatisfactory.
(2) The notice must be in writing and must:
(a) set out the nature of the approved provider’s non compliance; and
(b) set out the reasons for proposing to impose sanctions on the approved provider; and
(c) set out the consequences under this Act of imposing the proposed sanctions on the approved provider; and
(d) invite the approved provider to make submissions, in writing, to the Secretary within 14 days after receiving the notice, or within such shorter period as is specified in the notice; and
(e) inform the approved provider that the Secretary may, after considering the submissions (if any), impose sanctions on the approved provider.
(3) The Secretary must consider any submissions made by the approved provider.
67 4 Notice to remedy non compliance
(1) The Secretary may give to the approved provider a notice to remedy non compliance by the approved provider with its responsibilities under Part 4.1, 4.2 or 4.3 if:
(a) the approved provider has made submissions addressing the non compliance in response to a notice under section 67 2; and
(b) the Secretary thinks the submissions:
(i) propose appropriate action to remedy the non compliance; or
(ii) set out sufficient reason for the non compliance; or
(iii) are otherwise satisfactory.
(2) The notice must be in writing and must:
(a) inform the approved provider that, within 14 days after receiving the notice, or within such shorter period as is specified in the notice, the approved provider must give a written undertaking to the Secretary to remedy the non compliance; and
(b) inform the approved provider that the Secretary may impose sanctions on the approved provider if the approved provider does not give, or comply with, the undertaking.
(3) The undertaking must:
(a) be in a form approved by the Secretary; and
(b) contain a description and acknowledgment of the approved provider’s non compliance with its responsibilities under Part 4.1, 4.2 or 4.3; and
(c) set out what action the approved provider proposes to take to remedy the non compliance; and
(d) set out the period within which such action is required to be taken; and
(e) contain an acknowledgment that a failure by the approved provider to comply with the undertaking may lead to sanctions being imposed under this Part; and
(f) meet any requirements specified in the Sanctions Principles.
Note: Approved providers have a responsibility under paragraph 63 1(1)(k) to comply with an undertaking. Failure to comply with this responsibility can result in a sanction being imposed under this Part.
67 5 Notice of decision on whether to impose sanctions
(1) The Secretary must notify the approved provider, in writing, of the Secretary’s decision on whether to impose a sanction on the approved provider in respect of non compliance by the approved provider with its responsibilities under Part 4.1, 4.2 or 4.3.
(2) If the Secretary decides to impose a sanction, the notice must set out:
(a) the nature of the approved provider’s non compliance; and
(b) the sanction to be imposed on the approved provider; and
(c) the consequences under this Act of imposing the sanction on the approved provider; and
(ca) if the sanction consists of revoking or suspending the allocation of some or all of the *places allocated to the approved provider under Part 2.2—the number of allocated places subject to the sanction; and
(cb) an explanation of when the sanction takes effect (see Division 67A); and
(d) where applicable, the sanction period (see section 68 2); and
(e) the reasons for imposing the sanction.
(3) If the Secretary decides not to impose a sanction, the notice must:
(a) specify the nature of the approved provider’s non compliance; and
(b) the reasons for not imposing the sanction.
Division 67A—When do sanctions take effect?
67A 1 When this Division applies
This Division applies if the Secretary gives a notice under section 67 5 imposing a sanction on an approved provider.
67A 2 Basic rule—sanction takes effect at the section 67 5 notice time
The basic rule is that the sanction takes effect at the *section 67 5 notice time.
67A 3 Exceptions to the basic rule
However, there are 2 exceptions to the basic rule:
(a) deferral to a later time (see section 67A 4);
(b) progressive revocation or suspension of the allocation of some or all of the *places allocated to the approved provider under Part 2.2 (see section 67A 5).
67A 4 Deferral to a later time
(1) If:
(a) the Secretary decides that the sanction should take effect at a time that is later than the *section 67 5 notice time; and
(b) that decision is set out in the section 67 5 notice;
the sanction takes effect at that later time.
(2) In making a decision under subsection (1), the Secretary must have regard to the following:
(a) the desirability of allowing sufficient time for the taking of reasonable steps to inform:
(i) each care recipient who is likely to be affected by the imposition of the sanction; and
(ii) an individual who, in the opinion of the Secretary, is concerned for the safety, health and well being of such a care recipient;
about:
(iii) the imposition of the sanction; and
(iv) the consequences under this Act of the imposition of the sanction;
(b) any risk to the safety, health or well being of care recipients to whom the approved provider is providing care;
(c) any other matters specified in the Sanctions Principles.
(3) If:
(a) the sanction consists of revoking the approved provider’s approval under Part 2.1 as a provider of *aged care services; and
(b) the sanction is the only sanction imposed on the approved provider in relation to non compliance with one or more of its responsibilities under Part 4.1, 4.2 or 4.3; and
(c) paragraph 66 2(1)(a) does not apply to the sanction;
then, in making a decision under subsection (1), the Secretary must ensure that the sanction takes effect within 14 days after the *section 67 5 notice time.
67A 5 Progressive revocation or suspension of allocation of places
(1) This section applies to the sanction if:
(a) the sanction consists of revoking or suspending the allocation of some or all of the *places allocated to the approved provider under Part 2.2; and
(b) the Secretary decides that the sanction should take effect on a progressive basis; and
(c) that decision is set out in the section 67 5 notice.
Vacant places
(2) If, immediately before the *section 67 5 notice time, the approved provider was not providing *aged care to a care recipient in respect of an allocated *place:
(a) the place is taken to be a vacant place for the purposes of this section; and
(b) the sanction takes effect, in relation to the vacant place, at the section 67 5 notice time.
Occupied places
(3) If, immediately before the *section 67 5 notice time, the approved provider was providing *aged care to a care recipient in respect of an allocated *place:
(a) the place is taken to be an occupied place for the purposes of this section; and
(b) the sanction takes effect, in relation to the occupied place, when the approved provider subsequently ceases to provide aged care to the care recipient in respect of the occupied place.
(4) For the purposes of paragraph (3)(b), disregard an occupied place if, at the time of the cessation, the sanction has already taken effect in relation to the number of allocated *places subject to the sanction.
Ancillary provisions
(5) This section does not apply unless the number of allocated *places subject to the sanction exceeds the number of vacant places.
(6) In making a decision under subsection (1), the Secretary must have regard to matters specified in the Sanctions Principles.
Note: See also subsection 42 2(1), which is about the provision of residential care when a care recipient is on leave under section 42 2.
67A 6 This Division has effect subject to section 66 2
This Division has effect subject to section 66 2.
Note: Section 66 2 provides for sanctions not to take effect in certain cases.
Division 68—When do sanctions cease to apply?
68 1 Sanctions cease to apply
(1) A sanction that has been imposed on an approved provider for non compliance with its responsibilities under Part 4.1, 4.2 or 4.3 ceases to apply if:
(a) its sanction period ends (see section 68 2); or
(b) the Secretary decides under section 68 3 that it is appropriate for the sanction to be lifted.
(2) However, this Division does not apply to any of the following sanctions:
(a) revoking the approved provider’s approval under Part 2.1 as a provider of *aged care services;
(b) revoking the allocation of some or all of the *places allocated to the approved provider under Part 2.2;
(c) revoking the *extra service status of a residential care service, or a *distinct part of a residential care service, conducted by the approved provider;
(d) revoking the *certification of the residential care service in respect of which the approved provider has not complied with its responsibilities;
(e) requiring repayment of some or all of any grants paid to the approved provider under Chapter 5 in respect of an aged care service in respect of which the approved provider has not complied with its responsibilities.
68 2 Sanction period
(1) The sanction period for a sanction is the period fixed by the Secretary in respect of that sanction and specified in the notice under subsection 67 5(2).
(1A) The sanction period must be expressed to begin at the time the sanction takes effect.
(2) In deciding on the length of the sanction period, the Secretary must have regard to any matters specified in the Sanctions Principles.
68 3 Lifting of sanctions
In deciding whether it is appropriate for the sanction to be lifted, the Secretary must have regard to:
(a) whether the approved provider is complying with its responsibilities under Parts 4.1, 4.2 and 4.3; and
(b) any other matter specified in the Sanctions Principles.
Note: Refusals to lift sanctions are reviewable under Part 6.1.
68 4 Applications for lifting of sanctions
(1) If a sanction has been imposed on an approved provider, the approved provider may apply, in writing, to the Secretary for the sanction to be lifted.
(2) The application must:
(a) be in a form approved by the Secretary; and
(b) meet any requirements specified in the Sanctions Principles.
68 5 Requests for further information
(1) If the Secretary needs further information to decide the application, the Secretary may give the applicant a written notice requiring the applicant to give the further information within 28 days after receiving the notice, or within such shorter period as is specified in the notice.
(2) The application is taken to be withdrawn if the applicant does not give the further information within the 28 days, or within the shorter period, as the case requires. However, this does not stop the applicant from reapplying.
Note: The period for giving the further information can be extended—see section 96 7.
(3) The notice must contain a statement setting out the effect of subsection (2).
68 6 Notification of Secretary’s decision
(1) The Secretary must notify the approved provider, in writing, of the Secretary’s decision whether to lift the sanction. The notice must be given:
(a) within 28 days after receiving the application; or
(b) if the Secretary has requested further information under section 68 5—within 28 days after receiving the information.
(2) If the Secretary decides that the sanction is to be lifted, the notice must:
(a) inform the approved provider when the sanction will cease to apply; and
(b) set out such other matters as are specified in the Sanctions Principles.
…
Part 6.4A—Complaints
Division 94A—Complaints Principles
94A 1 Complaints Principles
Management and resolution of complaints and concerns
(1) The Complaints Principles may provide a scheme for the management and resolution of complaints and other concerns about *aged care services through which *aged care is provided by approved providers.
Note: The Complaints Principles are made by the Minister under section 96 1.
(2) Without limiting subsection (1), the Complaints Principles may deal with one or more of the following matters:
(a) how complaints and concerns may be received, managed and resolved;
(b) different ways of receiving, managing and resolving different types of complaints and concerns, and complaints and concerns in relation to different *aged care services;
(c) the roles, rights and responsibilities of complainants, approved providers and other participants in the scheme;
(d) considerations relevant to making decisions under the Complaints Principles;
(e) procedures for the review of decisions and processes under the Complaints Principles;
(f) actions that may be taken (including making requirements of an approved provider) to address complaints or concerns.
Note: Part 6.6 also provides for the Complaints Principles to do certain things.
Transitional provisions relating to investigations
(3) The Complaints Principles may make provision of a transitional or saving nature relating to investigations that:
(a) related to this Act or the Principles made under section 96 1; and
(b) were being dealt with under the Investigation Principles immediately before the commencement of this subsection.
Relationship with other provisions
(4) To avoid doubt, this Part and the Complaints Principles do not affect any of the following:
(a) paragraph 56 4(1)(d) (about giving people authorised to investigate complaints access to an *aged care service as specified in the User Rights Principles);
(b) the User Rights Principles;
(c) Part 4.4 (Consequences of non compliance);
(d) the Sanctions Principles;
(e) the other Parts of this Chapter (except Part 6.6). ”
- AGLC
- Buckley v Terrigal Grosvenor Lodge (Erina) Pty Ltd (No.2) [2015] FCCA 2267
- Case
- [2015] FCCA 2267
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the defendant had breached its duty of care to the plaintiff, a lawful visitor, by failing to take reasonable steps to prevent the plaintiff from suffering injury. This involved determining whether the defendant had actual or constructive knowledge of the presence of the slippery substance on the floor and, if so, whether it had taken reasonable precautions to address the hazard.
Judge Nicholls found that the plaintiff had failed to establish that the defendant had actual or constructive knowledge of the slippery substance. The evidence did not demonstrate that the substance had been on the floor for a sufficient period for the defendant's employees to have discovered it through reasonable inspection. Consequently, the court concluded that the defendant had not breached its duty of care to the plaintiff.
The plaintiff's claim was dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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