Dr Toby Koenig v Ultra Thoroughbred Racing Pty Ltd
[2019] FWCFB 223
•16 JANUARY 2019
| [2019] FWCFB 223 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 604 - Appeal of decisions
Dr Toby Koenig
v
Ultra Thoroughbred Racing Pty Ltd
(C2018/6119)
DEPUTY PRESIDENT SAMS | SYDNEY, 16 JANUARY 2019 |
Application for permission to appeal against decision [2018] FWC 4880 of Deputy President Colman at Melbourne on 10 October 2018 in U2018/4613 – no arguable case of significant error of fact or error of law –public interest not enlivened – permission to appeal refused.
Introduction and background
[1] Dr Toby Koenig has applied for permission to appeal and appeal of a decision of Deputy President Colman issued on 10 October 2018 1 (the ‘Decision’) which found that Dr Koenig’s dismissal by Ultra Thoroughbred Racing Pty Ltd (Ultra Thoroughbred) was not unfair. The Deputy President found that Dr Koenig was not covered by the Animal Care and Veterinary Services Award 20102(the Award) and that his remuneration exceeded the high income threshold. As a result, the Deputy President found that Dr Koenig was not a person protected from unfair dismissal, pursuant to s 385 of the Fair Work Act 2009 (the ‘Act’). The finding in relation to the high income threshold is not challenged by Dr Koenig.
[2] Dr Koenig submitted that there are both errors of fact and law in the Decision, related to the Deputy President’s finding that Ultra Thoroughbred was not an employer in the veterinary surgery industry because its business is not a private veterinary surgery practice.
[3] The appeal was listed for permission to appeal only before a Full Bench of the Commission on 12 December 2018. Dr Koenig appeared for himself and Mr L Wattsof Counsel appeared for Ultra Thoroughbred with permission.
Approach on permission to appeal
[4] An appeal under s 604 of the Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 3 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[5] This appeal is one to which s.400 of the Act applies. Under section 400, the Commission must not grant permission to appeal from a decision made by the Commission in relation to unfair dismissal unless it considers it in the public interest to do so. An appeal of an unfair dismissal decision involving a question of fact can only be made on the ground that the decision involved a significant error of fact.
[6] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and CowdroyJJ agreed) characterised the test under s 400 as “a stringent one”. 4 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment5. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 6
[7] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 7 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.8
[8] An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal. 9
Grounds of Appeal
[9] In his Notice of Appeal, Dr Koenig set out what he claimed were errors of fact or law in the Decision, which ultimately informed the Deputy President’s answer to the question of award coverage. It was put that these errors led the Deputy President to wrongly conclude that Ultra Thoroughbred was not an employer in the veterinary surgery industry, as referred to in clause 4.1 of the Award. Dr Koenig submitted that the term ‘private veterinary surgery practices’ should be constructed to mean ‘a private business that, in part, undertakes the provision of veterinary services to clients.’
[10] Dr Koenig submitted that he is first and foremost a veterinary surgeon, in the provision of veterinary services in the equine industry (particularly in thoroughbred racing and breeding), such that he is covered by the Award.
[11] Dr Koenig contended that the word ‘practice’ has a wider meaning than ‘business’ and includes any practice of veterinary surgery, whether in connection with a veterinary practice business or not. He emphasised that Ultra Thoroughbred billed clients for his veterinary services and profited from those services.
[12] Ultra Thoroughbred submitted that Dr Koenig has not established either that it is in the public interest to grant permission to appeal or that there is any arguable case of error. It submitted that even if there were errors of fact, none were significant errors within the meaning of section 400 of the Act.
Submissions on the public interest
[13] Dr Koenig contended that the public interest was enlivened in this matter because:
• the Award’s scope was never intended to exclude veterinary surgeons;
• there are significant implications for the coverage and interpretation of the Award as it relates to many other veterinary surgeons in Australia;
• the Decision resulted in an injustice being occasioned upon him; and
• the public would expect that employers comply with the Act, the National Employment Standards and other relevant employment law.
[14] Ultra Thoroughbred submitted that the appeal does not raise any matters of general application or public importance and in truth, the dispute is really only between two parties. It submitted that there are no other considerations that warrant the grant of permission to appeal in the public interest.
Consideration
[15] Clause 4.1 of the Award provides as follows:
“4.1 This award covers employers throughout Australia in the veterinary surgery industry and the animal care industry and their employees in the classifications listed in Schedule B—Classifications to the exclusion of any other modern award. The award does not cover employers in the following industries:
(a) Amusement, Events and Recreation Award 2010;
(b) Food, Beverage and Tobacco Manufacturing Award 2010;
(c) Horse and Greyhound Training Award 2010; and
(d) Pastoral Award 2010.”
[16] “Veterinary surgery industry” is defined in clause 3.1 to mean “private veterinary surgery practices”.
[17] Schedule B to the Award provides various levels and definitions pertaining thereto to the classifications of Veterinary Surgeons, Practice Managers, Veterinary Nurses, Receptionists, Animal Attendants and Assistants.
[18] The relevant findings of the Deputy President at issue are at paragraphs [19] to [22] of the Decision which we set out below:
“[19] ‘Private veterinary surgery practices’ is not defined in the Award. As a preliminary matter, it is quite clear from the reference to ‘practices’ in the plural that the expression is referring to businesses. A reference to practice in the singular would have pointed to the carrying out or exercise of the profession, but the plural cannot be read in this way. Veterinary surgery practices are veterinary businesses. The distinction between the practice of veterinary surgery and the business of a veterinary practice is further underscored in the Award by the presence of a separate definition in clause 3.1 of veterinary surgeon, meaning a qualified vet who satisfies the relevant statutory and professional requirements to practice as a vet in the relevant jurisdiction.
[20] Mr Koenig urged the Commission to adopt a broad meaning of ‘private veterinary surgery practice’, namely that private practice encompasses an in-house veterinary function in a private company. Ultra Thoroughbred is certainly a private company. However in my view, as a matter of ordinary English usage, a ‘private veterinary surgery practice’ connotes a private veterinary business that offers services to clients.
[21] This interpretation is compatible with a contextual reading of clause 4.1 and the Award as a whole. The classifications that are defined in Schedule B of the Award relevantly include practice managers, veterinary nurses and receptionists, all of whom one would expect to encounter at a veterinary surgery offering services to clients. In particular, the Level 5 practice manager is defined as a person who has overall responsibility of managing the day-to-day operations of a veterinary practice, including oversight of human resources, stock control, clinical administration, bookkeeping and customer management (clause B.2.6). None of this has meaningful application to an in-house veterinary function.
[22] Ultra Thoroughbred is not a ‘private veterinary surgery practice’. It is a business that buys, sells, breeds and races horses.”
[19] It is clear from the Decision that the Deputy President applied an orthodox approach to the construction of relevant terms of the Award. He considered those terms in context, having regard to the terms of the Award as a whole.
[20] We are not persuaded Dr Koenig has made out an arguable case that the conclusion that Ultra Thoroughbred is not a private veterinary surgery practice was incorrect. While Dr Koenig clearly provided veterinary services as a veterinary surgeon in connection with Ultra Thoroughbred’s horse racing business, it is not apparent that he did so through a private veterinary surgery practice.
[21] The matters raised by Dr Koenig do not persuade us of an arguable case that the Deputy President made any significant error of fact on the face of the Decision. There is also no material before us to establish that the Deputy President’s findings are inconsistent with the intended scope of the Award in relation to veterinary surgeons. In any event, as the Deputy President made clear, award coverage turns on a contextual reading of the plain words of the instrument as a whole.
[22] We are not satisfied that the matter raises issues of importance or general application. It turns on its own facts and circumstances. We do not consider that the Decision manifests an injustice or leads to a counter intuitive result when read in light of the coverage terms of the Award. The legal principles applied in the Decision appear to us to be harmonious with other like decisions of the Commission.
[23] As set out earlier, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so. For the reasons given we are not satisfied that it is in the public interest to grant permission to appeal and accordingly permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Dr T Koenig for himself.
Mr L Watts of Counsel for Ultra Thoroughbred.
Hearing details:
2018.
Sydney and Melbourne (via video):
December 12.
Printed by authority of the Commonwealth Government Printer
<PR703853>
1 Koenig v Ultra Thoroughbred Racing Pty Ltd [2018] FWC 4880
2 MA000118
3 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
4 (2011) 192 FCR 78 at [43]
5 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 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 [2010] FWAFB 5343, 197 IR 266 at [27]
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
9 Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82]
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