Community Accommodation and Respite Agency Inc T/A Cara v United Workers' Union
[2023] FWC 354
•22 FEBRUARY 2023
| [2023] FWC 354 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.505—Right of entry
Community Accommodation and Respite Agency Inc T/A CARA
v
United Workers’ Union
(RE2022/1385)
| COMMISSIONER PLATT | ADELAIDE, 22 FEBRUARY 2023 |
Alleged dispute concerning whether UWU permit holders are prohibited from entering the homes of persons with disability – whether an exercise of arbitral or judicial power – application dismissed for want of jurisdiction.
On 7 December 2022, Community Accommodation and Respondent Agency Inc T/A CARA (CARA or the Applicant) made an application for the Commission to deal with a dispute under s.505 of the Fair Work Act 2009 (the Act).
The dispute is between the CARA and the United Workers’ Union (UWU or the Respondent) and concerns the ability of permit holders to exercise their right to enter a premises to hold discussions under s.484 of the Act, and the restriction imposed by s.493 of the Act, which excludes a permit holder from entering any part of premises which is used mainly for residential purposes.
The background to the matter is summarised as follows:
·The Applicant engages employees to provide paid personal support services to persons (Customers) in need of support. The provision of the support services is subject to a commercial contract. Services include assistance with personal care, cooking meals, general supervision or other tasks, with the goal of the services being to allow the Customer to live as independently as possible. Depending on the needs of the Customer, a significant amount of help may be provided throughout the day. Assistance is provided 7 days a week and may include overnight support. Mr Michael Benson gave detailed evidence as to the services provided by employees of the Applicant at two locations at which the Applicant provides service, “Kew” and “Hargrave”.
·The Cara Support Employees Enterprise Agreement 2022 (the Agreement) covers and applies to the employees of CARA who provide support services.
·On 5 December 2022, two officers of the UWU gave written notice to the Applicant of their intention to exercise a right of entry, pursuant to s.484 of the Act, at Kew and Hargrave on 7 December 2022.
·On 6 December 2022, Mr Zev Costi, on behalf of the Applicant, advised the UWU that it considered that the Kew and Hargrave premises fell under the residential premises exclusion contained in s.493 of the Act and advised of concerns about the potential impact of entry upon its Customers.
·Later that day, the UWU advised that it disagreed with the Applicant’s characterisation of the premises but indicated that it would accommodate reasonable health and safety requirements.
·CARA then advised it intended to file a dispute with the Commission and on that basis, the UWU withdrew its request.
The matter was subject to a conference before me on 9 December 2022. The dispute did not resolve at the conference, and accordingly directions were issued for the filing of material such that the matter could be arbitrated.
The parties filed witness statement and submissions in accordance with the directions.
A hearing was conducted, by way of videoconference, on 13 February 2023. Mr Peter Healey represented CARA and Mr Paris Dean (both of counsel) represented the UWU. Both were granted permission pursuant to s.596(2)(a) of the Act on the basis of complexity and efficiency.
A digital court book was compiled from the material that was filed and was distributed to the parties prior to the hearing. The entirety of the digital court book was accepted into evidence, with appropriate weight given to the evidence after an assessment of its relevance and its character.
No issues of credit arise as to the witness evidence, which is largely not in dispute.
The Applicant identified the following questions to be answered by the Commission:
·The First Question:
Whether as a result of s.493 of the Act, the UWU permit holders are prohibited from entering the homes of CARA Customers because they are the residential premises of the Customers.
·The Second Question:
Whether UWU permit holders are prohibited from entering the homes of CARA Customers because of clause 3.7.4 of the Agreement. The Applicant noted that if the Commission finds that s.493 of the Act prohibits the UWU permit holders from entering the homes of CARA Customers, then it would be unnecessary for the Commission to deal with the Second Question.
·The Third Question:
Whether UWU permit holders are prohibited from entering the homes of CARA Customers where there are concerns about the impact that an uninvited and unknown UWU permit holder might have on the health and safety of the Customer.
·The Fourth Question:
Whether UWU permit holders are prohibited from entering the homes of CARA Customers at times when staff are providing active support to the Customer.
Jurisdictional Objection
The UWU contends that the Commission is being asked to exercise judicial power and thus the matter is beyond the jurisdiction of the Commission. The Applicant rejects this position.
The UWU’s position on jurisdiction is summarised as follows.
CARA seeks to invoke the jurisdiction of the Commission pursuant to s. 505 of the Act. Section 505 relevantly provides that the Commission "may deal with a dispute about the operation of" the part of the Act providing for and regulating right of entry.
The nature and confines of the power conferred by s.505 was given extensive consideration in Application/Notification by Austral Bricks (VIC) Pty Ltd.[1] As the Commission noted, the FWC does not exercise judicial power, and therefore the exercise of the power conferred by s.505 does not involve an adjudication of the existing legal rights between the parties. Accordingly, ''an application to deal with a dispute about the location at which discussions with employees will be held brought under s. 505 is not an appropriate vehicle to seek a declaration of or resolution to a dispute about existing rights. Such matters must be determined elsewhere.”[2]
The role of the Commission in exercising power under s. 505 of the Act is very different from the power which might be exercised in determining a dispute, for example, about whether an allowance under an award is payable where the Commission may be vested with power as a private arbitrator. The UWU contends that in the extant dispute, the Commission has no such power.
The UWU contends that the first question posed by CARA would involve a classic exercise of judicial power. CARA expressly asks the Commission to determine the effect of s.493 of the Act. This involves no arbitral function and is plainly beyond the power of the Commission. It is the UWU’s position that to answer this question would constitute the impermissible exercise of judicial power.
The Second Question, according to the UWU, suffers the same defect. It might be answerable were the Commission sitting as a private arbitrator pursuant to the conferral of that power by clause 3.2.6(b) of the Agreement. A statutory basis for the Commission's power to arbitrate would then be conferred by s. 739 of the Act, which pursuant to s. 738 would relevantly depend for its efficacy on the conferral of such a power by the Agreement. CARA has not complied with the dispute resolution procedures under the Agreement. The UWU’s position is that this is fatal to any attempt to invoke the Commission's jurisdiction.
The UWU also referred me to the decision in Construction, Forestry, Mining and Energy Union v Austral Bricks (Vic) Pty Ltd (RE2014/764) and Austral Bricks (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union (RE2014/914),[3] and the substantive and appeal decisions in Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd.[4]
In response to the UWU’s submissions on jurisdiction, CARA submitted the following.
CARA noted that Part 3-4 of the Act gives statutory responsibility to the Commission for the administration of the entry permit scheme. The role of the Commission and the entry permit scheme is analogous to the body and related scheme in R v Quinn[5] (which involved the scheme to register trademarks and disputes about same). CARA contend that a departure from this approach would undermine Parliament’s legislative intention.
CARA further submits that an application for an entry permit under Part 3-4 of the Act constitutes a consensual and voluntary assumption of the scheme which then attracts the jurisdiction of the Commission.
CARA also contends that dispute resolution procedure contained in clause 3.2 of the Agreement demonstrates that the parties agreed that the Commission will arbitrate disputes about the agreement and will make binding determinations. As outlined in CFMEU v Australian Industrial Relations Commission,[6] “where parties agree to submit their differences for decision by a third party, the decision maker does not exercise judicial power, but a power of arbitration.”[7]
CARA contends that the dispute before the Commission concerns the determination of future arrangements and not a determination of pre-existing rights and obligations. However, as held in Austral Bricks (Vic)[8] “a view may be expressed or formed, or a conclusion drawn, about the nature of existing rights, but not for the purposes of declaring or resolving those rights. This is done for the purposes of resolving the dispute by determining what future rights should be and then by crafting an appropriate order to give effect to those future rights.”[9] Therefore, CARA contends that it is appropriate for the Commission to express views on particular issues, such as the operation s.493 of the Act and clause 3.7.4. of the Agreement.
Consideration
The matter before me is not a s.739 application where the parties have expressly conferred jurisdiction upon the Commission to determine the dispute.
An administrative tribunal like the Commission cannot exercise judicial power.[10] Part 3-4 of the Act does not confer judicial powers on the Commission.
In Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [11] the Full Bench noted that the ascertainment, declaration or enforcement of legal rights is the exercise of judicial power. If opinions are formed about such matters in the course of arriving at a conclusion about what rights should exist in the future, the functions can legitimately fall within the arbitral power conferred on the Commission.
The relevant question is whether the determination of the proper characterisation of the disputed premises as “residential premises” is a step in the process, or alternatively, the answer to the question.
It is clear to me (and expressly put in CARA’s submissions), that a determination by me about whether the premises in question are residential premises will determine the matter.
On that basis, and in line with the relevant authorities noted above, CARA is asking me to exercise juridical power which I do not possess, and its application must be dismissed for want of jurisdiction.
For the sake of completeness, to the extent that CARA contends that the Agreement provide an additional basis for the Commission’s involvement through clause 3.7.4, I observe that s.194(f) of the Act appears to render any entitlement to enter premises to hold discussions which are inconsistent with Part 3-4 to be unenforceable.
COMMISSIONER
Appearances:
P Healey for the Applicant.
P Dean for the Respondent.
Hearing details:
2023.
Adelaide (by videoconference):
February 13.
[1] [2014] FWC 5407.
[2] [2014] FWC 5407 at [42].
[3] [2014] FWC 5407.
[4] [2017] FWCFB 217.
[5] Ex parte Consolidated Food Corporation [1977] HCA 62.
[6] [2001] HCA 16.
[7] Ibid At [65].
[8] [2014] FWC 5407.
[9] Ibid at [42].
[10] Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 and authorities referred to therein.
[11] [2017] FWCB 217.
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