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

[2013] FWCFB 661

[2013] FWCFB 661

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

CPSU, the Community and Public Sector Union; Civil Service Association of Western Australia Incorporated
v
Australian Health Practitioners Regulation Agency
(C2012/5894)

VICE PRESIDENT WATSON
DEPUTY PRESIDENT MCCARTHY
COMMISSIONER CLOGHAN SYDNEY, 13 MARCH 2013

Appeal against decision [2012] FWA 8776 of Senior Deputy President Kaufman at Melbourne on 17 October 2012 in matter number B2012/825. National system employer - extended definition - referral of powers - exclusions - jurisdiction to appeal - Acts Interpretation Act 1954 (Qld) ss.14B, 35 - Fair Work Act 2009 ss.13, 14, 30D, 30N, 170, 176, 240, 604 - Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) ss.3, 6 - Health Practitioner Regulation National Law Act 2009 (Qld) - Health Practitioner Regulation (Administrative Arrangements) National Law Act 2008 s.18 - Industrial Relations Act 1979 (WA) - Queensland Public Service Act 2008 (Qld) s.24.

Introduction

[1] This decision concerns an application for permission to appeal under s.604 of the Fair Work Act 2009 (the Act) by the Community and Public Sector Union and the Civil Service Association of Western Australia Incorporated (CPSU/CSA) against the decision of Senior Deputy President Kaufman 1 on 17 October 2012. His Honour’s decision relates to a jurisdictional issue that arose during a bargaining dispute between the CPSU/CSA and the Australian Health Practitioners Regulation Authority (AHPRA). His Honour concluded that AHPRA was a national system employer and therefore AHPRA was entitled to make an application for a bargaining dispute, pursuant to s.240 of the Act and have Fair Work Australia deal with the dispute.

[2] At the hearing on 21 January 2013, the CPSU/CSA was represented by Mr M Shipman and Ms L Kennewell and AHPRA was represented by Mr C O’Grady of counsel.

Background and Decision under appeal

[3] AHPRA is a single national entity created through an Act of the Queensland Parliament 2 and has continued existence though the Health Practitioner Regulation National Law Act 2009 (Qld), which is replicated in mirror legislation in each State and Territory. The background to the creation of AHPRA is detailed and complex. His Honour explained this background in paragraphs [5] to [14] and [17] to [26] of his decision.

[4] AHPRA began negotiations with the CPSU/CSA for an enterprise agreement in Western Australia. AHPRA contends that the agreement must be made pursuant to the Act. The CPSU/CSA dispute this contention and submit that any agreement that is made must be made in the Western Australian Industrial Relations Commission under the provisions of the Industrial Relations Act 1979 (WA).

[5] AHPRA subsequently applied pursuant to section 240 of the Act, for Fair Work Australia to deal with the dispute.

[6] A preliminary issue arose as to whether AHPRA is a national system employer for the purposes of the Act and therefore whether Fair Work Australia has jurisdiction to deal with the dispute. The answer to this question will effectively resolve the jurisdiction in which enterprise bargaining can occur for AHPRA, its employees and their representatives.

[7] His Honour ultimately concluded that AHPRA is a national system employer and that the application pursuant to s.240 is properly made. The following paragraphs of the decision set out the relevant background:

“[3] The contention that AHPRA is a national system employer is put on two alternative bases. The first is that it is a single national entity created through an Act of the Queensland Parliament and, being an employer in respect of which the State of Queensland has referred its industrial relations powers to the Commonwealth, it falls within the extended definition of national system employer contained in sections 30D and 30N of the Act. The second basis is that it is a constitutional corporation, in that it is a trading and/or financial corporation and thus falls within the definition of national system employer contained in section 14(1) of the Act.

[4] I acceded to a request from Mr C O’Grady, counsel for AHPRA, that I only deal with the first matter as if I find that AHPRA is a national system employer it will not be necessary to determine whether it is a constitutional corporation.

...

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

...

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

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

[8] His Honour then dealt with the central questions as follows:

“IS AHPRA A NATIONAL SYSTEM EMPLOYER?

[35] Having found that AHPRA is the body corporate with perpetual succession established by section 18 of the Administrative Arrangements National Law, it is necessary to ascertain whether it is a national system employer.

[36] The FW Act defines national system employer and employee:

Division 3—Definitions relating to the meanings of employee, employer etc.

13 Meaning of national system employee

A national system employee is an individual so far as he or she is employed, or usually employed, as described in the definition of national system employer in section 14, by a national system employer, except on a vocational placement.

Note: Sections 30C and 30M extend the meaning of national system employee in relation to a referring State.

14 Meaning of national system employer

(1) A national system employer is:

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

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

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

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

(i) a flight crew officer; or

(ii) a maritime employee; or

(iii) a waterside worker; or

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

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

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

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

Particular employers declared not to be national system employers

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

(a) that employer:

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

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

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

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

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

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

Endorsement of declarations

(4) The Minister may, in writing:

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

(b) revoke or amend such an endorsement.

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

Employers that cannot be declared

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

(a) generates, supplies or distributes electricity; or

(b) supplies or distributes gas; or

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

(d) operates a rail service or a port;

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

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

[37] By operation of section 14(2) of the FW Act, an employer is not a national system employer if it is established for a public purpose by or under a law of a state or territory, and that employer is specifically declared not to be a national system employer.

[38] The referral in Queensland is governed by the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) (Qld Referral Act). The Qld Referral Act provides for a general referral of industrial relations powers to the Commonwealth except for matters excluded from the reference by section 6 of the Qld Referral Act.

[39] Section 6(d) of the Qld Referral Act excludes from the referral “matters relating to public sector employees and employers”. If AHPRA is a public sector employer it is excluded from the Queensland referral and cannot be a national system employer.

[40] The terms “public sector employee” and “public sector employer” are defined in section 3 of the Qld Referral Act as follows:

“public sector employee means –

(a) a person employed or appointed in or by a public sector employer; or

(b) the chief executive of a public sector employer.”

“public sector employer means any of the following –

(a) a Minister

(b) a department or public service officer;

(c) an employing office;

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

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

[41] The CSA submitted that the Queensland referral excluded AHPRA from the general referral because it falls within section 3(e) of the Qld Referral Act. AHPRA is undoubtedly an entity of the type referred to in the introductory words of section 3(e). It does not fall within sub-section (a) to (d).”

[9] His Honour ultimately distilled the question as follows and adopted the reasoning of AHPRA in reaching this conclusion:

“[42] The question boils down to whether it was established under an Act or under State authorisation for a public or State purpose. It was established under an Act; the Administrative Arrangements Act. The question is thus further refined to whether AHPRA was established for a public or State purpose.

[43] The history for the creation of AHPRA and reasons for its creation demonstrate that it was established for an Australian public purpose. The Qld Referral Act could manifestly only exclude from the referral entities established for a Queensland public or State purpose. Albeit AHPRA was established for a purpose that encompasses Queensland, it was established for an Australian purpose - to enable the adoption of a national law to facilitate the development and implementation of a national registration and accreditation scheme for health practitioners. In my view, the submissions of AHPRA at paragraphs 21 to 36 correctly state the position. I set them out and adopt them as part of my reasons.

“Application of the FW Act

21. The FW Act applies to national system employers.

22. The extended definition of a national system employer in sections 30D and 30N of the FW Act includes an employer in a State that is a referring State. Where a State has referred its industrial relations powers to the Commonwealth an employer will, if they come within the terms of the referral, be a national system employer.

23. Alternatively the ordinary meaning of a national system employer as set out in section 14 of the FW Act includes:

(a) constitutional corporations (section 14(1)(a)); and

(b) a body corporate incorporated in a Territory (section 14(1)(e)).

Extended Definition

24. AHPRA contends it comes within the extended definition of a national system employer.

25. The referral in Queensland is governed by the Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld) (the Qld Referral Act). The Qld Referral Act provides for a general referral of industrial relations powers to the Commonwealth except for matters excluded from the reference by section 6 of the Qld Referral Act. The issue thus resolves into whether AHPRA falls within the exclusion to the referral.

26. Section 6 of the Qld Referral Act excludes from the referral, relevantly "matters relating to public sector employees and employers".

27. The terms of public sector employee and public sector employer are defined in section 3 of the Qld Referral Act as follows:

“public sector employee means –

(a) a person employed or appointed in or by a public sector employer; or

(b) the chief executive of a public sector employer.”

“public sector employer means any of the following –

(a) a Minister

(b) a department or public service officer;

(c) an employing office;

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

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

28. AHPRA is not caught by subsections (a) – (d) of this definition. Whilst on one view AHPRA it could be caught by subsections (e) of the definition, such a reading cuts against both the extrinsic material to which regard may be had in accordance with sections 14B of the Acts Interpretation Act 1954 Qld (Acts Interpretation Act) and the history of the provision.

29. In the second reading speech which accompanied the Fair Work (Commonwealth Powers) and other Provisions Bill (Qld) the Attorney-General and Minister for Industrial Relations said:

“the state’s industrial relations powers for the private sector. This bill also sets out the conditions under which Queensland makes this referral to ensure Queenslanders the best result under the national industrial relations system.

Clauses 5 and 6 of the Fair Work (Commonwealth Powers) and Other Provisions Bill 2009 allow the Commonwealth to legislate exclusively with respect to all employers in Queensland, with the exception of state and local government. The bill provides for the national system to cover all the private sector and some commercial elements of the public sector including government owned corporations. The Queensland system will continue to cover the 300,000 employees in the state Public Service and local government, including the Brisbane City Council and local government owned corporations” (emphasis added).”

30. It is clear from this passage that the intention of Parliament was to refer the regulation of the private sector and some elements of the public sector, but to exclude from the scope of the referral the Queensland State Public Service and Queensland local Government. On any view, AHPRA could not be described as part of the Queensland State public service or Queensland local Government. For reasons expanded upon below, it has a commercial element and is analogous to a Government-owned corporation.

31. Similarly the explanatory notes which accompanied the Fair Work (Commonwealth Powers) and Other Provisions Bill (Qld) provide, relevantly:

“6 Matters excluded from the reference

Clause 6 sets out the matters that are excluded from the references under section 5, being matters relating to:

(a) Ministers or Members of Parliament;

(b) the Governor, the Office of the Governor, the Government House and its associated administrative unit;

(c) judicial officers or members of State tribunals, or their associates;

(d) public sector employees and employers;

(e) persons appointed or engaged by the Governor, Governor in Council, or a Minister under any Act, law or authority;

(f) officers or employees of the parliamentary service;

(g) law enforcement officers; or

(h) local government sector employees and employers.

As the Commonwealth Parliament has power to make laws with respect to constitutional corporations, entities that are constitutional corporations cannot be excluded from the references. However, some constitutional corporations are declared by Queensland legislation not to be “national system employees”, in accordance with section 14 of the Commonwealth Fair Work Act. For the sake of clarity, the definition of “public sector employer” provides that the term does not include the entities set out in Schedule 1. Although the entities set out in Schedule 1 may be constitutional corporations (and therefore could not be excluded from the reference), they are specified as not being “public sector employers” for the avoidance of doubt and for the assistance of persons reading the legislation.”

32. Once again, the concern of Parliament appears to have been to exclude Queensland Public Sector Entities from the referral.

33. The construction contended for by AHPRA is also supported by the legislative history of subsection (e) of the definition of public sector employer in the Qld Referral Act. This part of the definition simply picks up the definition of "government entity" contained in section 24 of the Queensland Public Service Act 2008. That section provides relevantly:

“24 What is a government entity

(1) An entity is a government entity if it is—

(a) a department or part of a department; or

(b) a public service office or part of a public service office; or

(c) an agency, authority, commission, corporation, instrumentality, office, or other entity, established under an Act or under State authorisation for a public or State

(d) purpose; or

(e) a part of an entity mentioned in paragraph (c); or

(f) another entity, or part of another entity, declared under a regulation to be a government entity; or

(g) a registry or other administrative office of a court of the State of any jurisdiction”

34. It is submitted that the Qld Referral Act’s replication of the language used sub section 24 (1) (c) of the Queensland Public Service Act 2008 is consistent with an intention to exclude from the referral Queensland public sector entities. There would appear to be no intention to exclude entities like AHPRA which manifestly have a national focus.

35. Finally, the Acts Interpretation Act provides, relevantly:

“35 References to Queensland to be implied

(1) In an Act—

(a) a reference to an officer, office or entity is a reference to such an officer, office or entity in and for Queensland; and

(b) a reference to a locality, jurisdiction or other thing is a reference to such a locality, jurisdiction or other thing in and of Queensland.

(2) In an Act, a reference to an office or entity established by or under an Act need not include the words ‘Queensland’ or ‘of Queensland’ merely because the words form part of its name or title.”

36. The effect of this provision would appear to be that the reference to "an agency... established under an Act... for a public or State purpose" is a reference to an agency "in and for Queensland" and should not be taken to be a reference to an Agency like AHPRA which is a national agency created for a national purpose.”

[44] AHPRA’s application under section 240 of the Act is properly made and Fair Work Australia is able to deal with it.”

Grounds of appeal

[10] The CPSU/CSA submits that his Honour made errors of law and fact in finding that AHPRA was a national system employer. It submits that:

• his Honour was obliged to initially consider if AHPRA was a constitutional corporation and he did not do so;



• it was an error of law to determine that AHPRA was a national system employer within the meaning of s.14(2) of the Act for the following reasons:




1. The agreed statement of facts explicitly sets out that AHPRA is not a national system employer within s.14(2) of the Act. Rather it is a hybrid entity constructed from various pieces of States’ and Territories’ legislation which prevents it from being classified as a national system employer for Western Australia in particular. Further, the extended definitions of national system employer in the Act applies only to those employers in referring states and Western Australia has not referred its industrial powers to the Commonwealth;

2. AHPRA can only be a national system employer if it satisfies the definition of a constitutional corporation under s.14(1) of the Act, or if Western Australia has referred its industrial powers.

• it was an error of law to find that AHPRA situated in Queensland was a national system employer and therefore AHPRA incorporated in Western Australia must also be a national system employer.



• it is in the public interest to grant permissions to appeal.

[11] AHPRA submits as follows in relation to the appeal:

• the Commission does not have jurisdiction to hear and determine an appeal against the decision of his Honour as the decision was the exercise of a power of private arbitration and it was a power conferred by the agreement of the parties. That agreement was confined to the preliminary issue of whether or not AHPRA was a national system employer for the purposes of the Act. That agreement did not expressly or impliedly contemplate a right of appeal;



• if the Commission does have jurisdiction to hear the appeal, permission to appeal should not be granted. The decision was the determination of preliminary issue and therefore did not impose any obligations on the CPUS/CSA. The appeal therefore lacks utility and it is not in the public interest to grant permission to appeal.



• if permissions is granted, the CPSU/CSA has not establish any appealable error. AHPRA relies on the submissions it made before his Honour in regard to whether AHPRA is a national system employer. AHPRA contends that His Honour did not determine that AHPRA was a national system employer by virtue of s 14(2) of the Act but rather he concluded that AHPRA fell within the extended definition of “national system employer” in s.30N.

Jurisdiction to Appeal

[12] This issue arises because AHPRA contends that no appeal is available against his Honour’s decision because it arose from the exercise of private arbitration by agreement of the parties.

[13] The application that gave rise to the decision under appeal was an application by AHPRA under s240 of the Act for FWA to deal with a bargaining dispute. It appears that this application was seen, at least by AHPRA, as a convenient means by which a dispute over the appropriate jurisdiction to conduct enterprise bargaining could be resolved. The bargaining dispute itself related to the question of whether AHPRA was a national system employer. It could also be said that the matter in dispute was an initial matter in dispute that was preventing the parties from proceeding to bargain on a clear and established legislative base.

[14] However, the application under s240 was also premised on this question being answered in line with the submissions of AHPRA because the application could not have been validly made by AHPRA unless it had the legal status of a bargaining representative. An employer bargaining representative must be a national system employer: s170, s176(1)(a). Any arbitration of the dispute under s240(4) of the Act was also dependent on the agreement of the bargaining representatives - thus also encompassing the dispute over the status of AHPRA as a jurisdictional precondition for the exercise of such powers.

[15] It follows from this analysis that the determination of whether AHPRA is a national system employer is both a jurisdictional prerequisite of the s240 application and a significant preliminary matter in dispute between the parties relevant to their negotiations. His Honour clearly regarded the determination of this issue as encompassing the jurisdictional element. The identification of the preliminary issue in paragraph [2] of his decision notes this and his conclusion in paragraph [44] is also expressed in such terms.

[16] It cannot be doubted that an appeal lies under s 604 of the Act against a decision of a member of FWA that FWA has jurisdiction to deal with an application subject to permission to appeal being granted. We find that the application for permission to appeal is valid and we turn now to consider whether to grant permission to appeal.

Permission to Appeal

[17] AHPRA submits that permission to appeal should not be granted because the appeal relates to a preliminary matter that does not create any obligations on the parties. Appeal benches have shown some reluctance to allow appeals on preliminary issues in order to minimise unnecessary litigation. Appeals in relation to procedural rulings are often considered in this light and leave to appeal can often be denied when subject to an application to appeal.

[18] The position regarding jurisdictional questions is of a different nature. It is the first duty of a court or tribunal to determine whether it has jurisdiction to deal with a matter before it. Once it has done so, it is often appropriate that any appeals on that issue are determined before any further steps are taken in the substantive proceedings. This is so because the time and costs of the parties and the tribunal might be wasted if it is ultimately found that there is no jurisdiction to deal with the matter.

[19] In the circumstances of this matter, we have noted above that the decision of his Honour encompasses a finding that FWA has jurisdiction to deal with the application. That finding is contested by the CPSU/CSA in this appeal. The appeal gives rise to an important issue of validity of the application and the broader issue of the meaning of the term ‘national system employer’ in the Act. These factors compel the conclusion that permission to appeal should be granted.

National System Employer - Extended definition

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

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

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

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

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

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

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

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

Conclusions

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

VICE PRESIDENT WATSON

Appearances:

M. Shipman with L.Kennewell for the CPSU, the Community and Public Sector Union and Civil Service Association of Western Australia Incorporated

C O’Grady of counsel with D Trindade for Australian Health Practitioners Regulation Authority

Hearing details:

Perth.

2013.

January 21.

 1  [2012] FWA 8776.

 2   Health Practitioner Regulation (Administration Arrangements) National Law Act 2008 (QLD).

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