Dr Clare Anne McGrory v Australian Digital Health Agency
[2024] FWCFB 311
•17 JULY 2024
| [2024] FWCFB 311 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Dr Clare Anne McGrory
v
Australian Digital Health Agency; Hitech Group Australia Limited
(C2024/3838)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 17 JULY 2024 |
Appeal against decision [2024] FWC 1366 of Commissioner McKinnon at Sydney on 24 May 2024 in matter number C2023/7645 – permission to appeal refused.
Dr Clare Anne McGrory has lodged an appeal under s 604 of the Fair Work Act 2009 (Cth) (Act), for which permission to appeal is required, against a decision[1] of Commissioner McKinnon issued on 24 May 2024.
The decision, made in the context of a s 365 general protections application by Dr McGrory, concerns whether Dr McGrory was dismissed by Australian Digital Health Agency (ADHA). The Commissioner determined that Dr McGrory had not been dismissed by ADHA because she was not an employee of it.[2] Having upheld ADHA’s jurisdictional objection, the Commissioner dismissed Dr McGrory’s s 365 application.
The matter was listed for permission to appeal only. Dr McGrory attended the hearing and provided oral submissions. At the conclusion of Dr McGrory’s submissions, the Full Bench advised that it was content to rely upon the comprehensive written submissions filed by each of the respondents and did not need to hear from either respondent unless they specifically sought to address a matter raised by Dr McGrory. Neither respondent sought such an opportunity.
For the reasons that follow, permission to appeal is refused.
Decision under appeal
Dr McGrory contended that she was dismissed by ADHA on its initiative, for the purposes of s 386(1)(a) of the Act. The decision records that there was no evidence of any contract or relationship of employment between Dr McGrory and ADHA before the Commission. Rather, the contractual material in evidence was relevantly limited to a contract between Dr McGrory and the second respondent, HiTech Group Australia Limited (HiTech), with HiTech being a supplier to the “Australian Government Digital Marketplace” used by ADHA.
There was no other material before the Commission addressing the work performed for ADHA by Dr McGrory.
The Commissioner considered the contract between Dr McGrory and HiTech in a manner consistent with the approach set out by the High Court in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd[3] (Personnel Contracting) and ZG Operations Pty Ltd & Anor and Jamsek & Ors[4] (Jamsek) and found that it was a contract for services:
[21] Dr McGrory had a written contract for services with HiTech Group. That contract comprehensively set out the rights and duties of the parties in writing and applied to the work Dr McGrory performed for ADHA.
The Commissioner concluded that on the material before her, Dr McGrory was not an employee of ADHA. Dr McGrory therefore could not have been dismissed by ADHA. Accordingly, Dr McGrory’s s 365 general protections application involving dismissal was dismissed.
Grounds of appeal
The Form F7 Notice of Appeal identifies three grounds of appeal, which are set out below without amendment:
(1)As noted above, the Applicant believes she made a sound case in her submissions which proved she was an employee of ADHA, for the purposes of the Fair Work Act in this role which is under consideration, on the balance of probabilities in view of the applicable laws and their specific wordings.
(2)The specific and highly relevant points the Applicant made in her submission to prove she was an employee for our purposes here, do not appear to have been properly weighed up and considered in the initial decision making, which is valid grounds for there to be an appeal hearing to consider these submissions again.
(3)Some irrelevant matters appear to have been factored into the decision making which is also grounds for an appeal.
Dr McGrory contends that it is in the public interest to grant permission to appeal, including to ensure the community has appropriate access to the protections afforded by the Act, and that the Act is applied fairly and as Parliament intended. Dr McGrory also submits that there are compelling matters which support the grant of leave to appeal, including in relation to ensuring the prevention and detection of crime and fraud; the capacity for freedom of expression, including political communication; and the interests of open justice.
Principles – permission to appeal
There is no right to appeal, and an appeal may only be made with the permission of the Commission. Without limiting when the Commission might grant permission, s 604(2) of the Act provides that the Commission must grant permission if the Commission is satisfied that it is in the public interest to do so.
The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[5] The public interest is not satisfied simply by the identification of error or a preference for a different result.[6] Considerations that may attract the public interest include that the matter raises issues of importance and general application, that the decision manifests an injustice or that the result is counterintuitive.[7]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a preliminary hearing of the appeal. In determining whether to grant permission to appeal, it is unnecessary and inappropriate to conduct a detailed examination of the appeal grounds.[8] However, it is necessary to engage with the grounds to consider whether they raise an arguable case of appealable error.
Consideration – is there an arguable case of appealable error?
For the reasons that follow, we are not persuaded that the Notice of Appeal or Dr McGrory’s submissions disclose any arguable appealable error or that permission should be granted on any other discretionary ground.
At the appeal, Dr McGrory represented herself and made it clear that she was appearing as a layperson. Her written submissions and correspondence traversed a wide range of subjects and issues. It appears that Dr McGrory regarded these matters as providing relevant context.
However, much of Dr McGrory’s material did not satisfactorily address the fundamental issue upon which the Full Bench must focus its attention, being whether there is an arguable case of appealable error in the Commissioner’s decision. The proceeding before the Commissioner was confined to determining ADHA’s jurisdictional objection that Dr McGrory was not, and could not have been, dismissed as she was not an employee of ADHA. In making her decision, the Commissioner appropriately focussed only upon matters relevant to the determination of that issue. To this end, Dr McGrory’s contentions about matters such as the comments made to her regarding her personal life and past events - if made - may have been distressing to Dr McGrory, but they have no relevance to the issue determined by the Commissioner.
Dr McGrory’s position at first instance, and before us on appeal, is that she was dismissed by ADHA. In her consideration of this issue, the Commissioner applied the relevant principles established by the High Court in Personnel Contracting and Jamsek, which the Commissioner correctly summarised at [9] of the decision, to the material before her. This material was limited to a contract between Dr McGrory and HiTech, which the Commissioner was satisfied was not the subject of a challenge as to its validity.
Relevantly, these principles required the Commissioner to construe and characterise the terms of the written contract at the time it was entered into. This is precisely what the Commissioner did. Consistent with the approach endorsed by the High Court, the Commissioner formed an evaluative judgment as to the nature of the relationship between Dr McGrory and HiTech and concluded that it was a contract for services (not of employment). That contract applied to the work Dr McGrory performed for ADHA.
At the appeal, Dr McGrory submitted that the Commissioner erroneously confined herself to Personnel Contracting and Jamsek, which were not relevant to her situation (including because the factual circumstances are distinguishable for the reasons explained in [21] below). Dr McGrory claimed to have addressed alternative authorities in her first instance submissions. Having reviewed these submissions, we note that Dr McGrory relied upon cases that pre-date Personnel Contracting and Jamsek. The Commissioner was correct not to follow them. No arguable case of appealable error arises from the Commissioner’s application of Personnel Contracting and Jamsek.
Dr McGrory also submitted that Personnel Contracting was a matter from the mining industry, as opposed to her own work situation. She also drew attention to the fact that there were no allegations of harassment in Jamsek unlike those allegations she had made in her own case. We do not find any arguable error in the Commissioner’s reliance on those judgements as the principles set out in those cases have application beyond the particular industries and particular circumstances of those two cases.
Dr McGrory further contended that the application of Personnel Contracting and Jamsek gave rise to unfairness, which the recent “closing loopholes” legislation[9] was designed to remedy. We accept that the “closing loopholes” legislation includes provisions to return to a pre-Personnel Contracting and Jamsek approach to the assessment of whether a relationship is one of employment for the purposes of the Act. However this legislative change will not commence until August 2024 and the Commissioner was correct not to apply laws that are not yet in effect.
Dr McGrory’s contention that she relied upon the Commission’s general protections benchbook to guide her approach does not demonstrate any arguable appealable error in the decision. In any case, we do not accept Dr McGrory’s contention that the website contains incorrect guidance material in relation to this issue. The Commission’s website makes it clear that the benchbooks are provided for general guidance purposes only and should not be used as a substitute for professional legal advice. The benchbook also contains a specific disclaimer with respect to the need to refer to Personnel Contracting and Jamsek for the current approach to be taken in determining whether a person is an employee or a contractor.
For the reasons given, we do not find that any of the grounds advanced by Dr McGrory are capable of demonstrating any arguable appealable error. With respect to appeal grounds one and two, the Commissioner applied the correct case law principles. The contention by ground three that irrelevant matters have been taken into account is not sustainable.
Consideration – the public interest
We have considered the public interest grounds advanced by Dr McGrory. We are not persuaded, for the purposes of s 604(2) of the Act, that any of the matters raised including arguments about the prevention and detection of crime and fraud, the capacity for freedom of expression - including political communication - and the interests of open justice, justify the grant of permission to appeal. Nor do we consider it to be arguable that the decision manifests an injustice, or that the result is counterintuitive or unjust. The appeal does not raise any genuine issue of law, principle or wider application.
With respect to the contention that the grant of permission to appeal will provide certainty about who can access the protections afforded by the Act, we note that there will soon be a legislative change in effect which alters the nature of the assessment that arose for consideration in the decision. Noting this, we do not consider it to be arguable that Dr McGrory’s appeal enlivens the public interest.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
C McGrory, for herself.
B Edghill of Sparke Helmore Lawyers, for ADHA.
M Robinson of Citation Legal, for HiTech.
Hearing details:
2024.
Melbourne (by video):
July 9.
[1] [2024] FWC 1366
[2] The second respondent, Hitech Group Australia Limited, objected to Dr McGrory’s s 365 application on a similar basis but this question was not necessary to decide in the decision and Dr McGrory does not contend otherwise in her appeal notice
[3] Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1
[4] ZG Operations Pty Ltd & Anor and Jamsek & Ors [2022] HCA 2
[5] O’Sullivan v Farrer (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]-[46]
[6] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343; 197 IR 266 at [24]-[27]; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth[2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663; 241 IR 177 at [28]
[7] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]-[27]
[8] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
[9] Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, Schedule 1, Part 15
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