Dr Vahid Sedighi Gourabi v Westgate Medical Centre
[2019] FWC 1155
•21 FEBRUARY 2019
| [2019] FWC 1155 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dr Vahid Sedighi Gourabi
v
Westgate Medical Centre
(U2018/11271)
COMMISSIONER BISSETT | MELBOURNE, 21 FEBRUARY 2019 |
Application for unfair dismissal – jurisdictional objection – whether Applicant is covered by a modern award or enterprise agreement – annual earnings exceed high income threshold - application dismissed.
[1] Dr Vahid Sedighi Gourabi (the Applicant) has made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[2] Jurisdictional objections to the application were listed to be heard by me on 8 February 2019. At the hearing I determined that I would, in the first instance, only hear arguments as to whether a modern award covered the Applicant’s employment. If a modern award did cover the Applicant’s employment the issue of whether he was a contractor or employee could be determined with the merits. If a modern award did not cover the Applicant’s employment (there is no dispute that no agreement applied) the Western Medical Centre (WMC or the Respondent) said, and the Applicant made no contrary submissions, that the Applicant’s annual rate of earnings was in excess of the high income threshold such that he was not protected from unfair dismissal.
The Award
[3] The parties are in dispute as to whether the Medical Practitioners Award 2010 1 (the Award) covers the employment of the Applicant.
[4] The Award, in part, provides as follows:
4.1 This occupational award covers employers of medical practitioners throughout Australia in the classifications listed in clause 14-Minimum annual salaries to the exclusion of any other modern award.
3. Definitions and interpretation
medical practitioner means a person who is employed as a medical practitioner in hospitals, hospices, benevolent homes, day procedure centres, aboriginal health services, community health centres, the Red Cross Blood Service, the South Australian Institute of Medical and Veterinary Science, the Victorian Cytology Service or the Victorian Institute of Forensic Medicine
medical practitioner—non specialist means a Career Medical Practitioner, Senior Career Medical Practitioner or Community Medical Practitioner
[5] The parties appear to agree, through their submissions, that the issue which requires resolution – which will then determine if the Applicant is covered by the Award – is whether the Respondent is a community health centre or a day procedure centre as used in the definition of “medical practitioner”.
Evidence
[6] Doctor Feda Eqbal gave evidence that he is a Director of Sayers Medical Pty Ltd and Hoppers Super Clinic Pty Ltd. These companies own and operate three private medical clinics in Werribee and Hoppers Crossing. The group is known as Westgate Medical Centre (WMC). Dr Eqbal is also a medical practitioner.
[7] Dr Eqbal gave evidence that doctors at WMC refer patients to community health centres and day procedure centres. He said that WMC is not funded by the government as a community health centre and is not registered as a day procedure centre.
[8] The Applicant worked at WMC. He said in his evidence that WMC has two branches – Sayers Road branch and Superclinic branch. The Applicant came to Australia on a 457 visa and, although qualified in his home country in Paediatrics Nephrology, decided to enter medical practice in Australia through the GP pathway.
[9] The Applicant gave evidence that the Sayers Road branch had a psychologist and audiologist (who he thought rented rooms from the owners) and the Superclinic branch had a podiatrist, exercise physiologist, psychologist and dietician (who he also thought rented rooms from the owners). He said he referred his patients to those practitioners.2
[10] The Applicant also gave evidence that the type of work he performed included suturing, wound management, implanon insertion and removal, fracture management, skin lesion biopsy, foreign body removal, immunisation, abscess drainage, ear syringe and nail wedge resection. 3 He was also engaged in (providing advice on) “health improvement programs such as weight loss, smoking cessation, drug and alcohol abuse, mental health, prenatal and postnatal care, family planning, lifestyle and diet modification and screening such as Pap smear, bowel cancer, breast cancer, osteoporosis, 45-49 and over 75 health check and immunisation…”.4 The Applicant said he was also involved with different allied health professionals such as podiatrists, diabetic educators and psychologists amongst others.5
[11] The Applicant gave evidence that he agreed that WMC was a general practice clinic. He did not know of any community health centres and did not know if WMC received any funding under the community health centre program but maintained that WMC did provide health services to the community. He was not aware if WMC met the legal requirements as a day procedure centre.
Submissions
Respondent
[12] The Respondent submits that WMC does not fit the description of any of the entities contained in the definition of “medical practitioner” as contained in clause 3 of the Award. As the Applicant performs his duties at WMC he therefore is not covered by the Award.
[13] The Respondent submits that the terms of the Award must be given their legal meaning and the terms “community health centres” and “day procedure centres” have particular meanings that should apply in the context of the Award.
[14] The Respondent says that the Victorian Government funds “community health centres.” Information from the Victorian Government “Better Health”6 website indicates that community health centres (or community health services – CHSs) receive “Community Health Program funding from the Department of Health” and that there are “approximately 100 CHSs in Victoria operating from approximately 350 sites”.
[15] Further, the Victorian Government information states that that “[c]ommunity health services sit alongside general practice and privately funded services, and other health and support services, to make up the majority of the primary health sector in Victoria…”
[16] The Victorian Government maintains a register of those places that are “day procedure centres”. The Victorian Government health.vic website7 states that day procedure centres must “comply with minimum for patient and safety and care” [sic]. There are processes established to register a day procedure centre, renew, vary or transfer registration and to build or renovate a day procedure centre. The health.vic website also includes a “Day Procedure Centres list” which lists such centres registered in Victoria.8 WMC is not on this published list.
[17] The Respondent submits that, as WMC is not funded as a community health centre (service) and is not registered as a day procedure centre, it cannot have anyone employed 9 in these services.
[18] Further, WMC says that it does not fit any of the other types of organisations or named organisations in the definition of medical practitioner in the Award such that it could be covered by the Award.
[19] For these reasons WMC says it is not covered by the Award and the Applicant is therefore not covered by the Award.
[20] WMC says that, as the Applicant is not covered by the Award and he does not dispute he earned in excess of the high income threshold he is not protected from unfair dismissal and his application must therefore be dismissed
Applicant
[21] The Applicant submits that the definition of medical practitioner relates both the specific places of employment (the Red Cross Blood Service, the Victorian Cytology Service, the South Australian Institute of Medical and Veterinary Science, etc.) and to “general places of employment” such as hospitals, hospices, day procedure centres and community health centres.
[22] The Applicant agrees that he was not engaged to work in any of the specific places of employment mentioned in the definition of “medical practitioner” in the Award. The Applicant therefore says that the question to be answered is if the Respondent employed him in any of the general places of employment.
[23] The Applicant concedes that, given the ordinary meaning of hospital and hospice, the Respondent did not employ him in such a place. He also concedes that the Respondent is not a benevolent home or an aboriginal health service.
[24] The Applicant does submit, however, that, given their ordinary meaning, the Respondent is a day procedure centre and a community health centre.
[25] The Applicant says that the non-capitalisation of “day procedure centres” should be taken to mean a centre at which a procedure is provided and where the patient is “in and out” on the same day. The Applicant submits that the procedures performed by the doctors at WMC are performed on patients who come and leave on the same day. The Applicant submits the performance of such procedures within a day means that the Respondent is a day procedure centre as used in the Award.
[26] The Applicant also submits that the non-capitalisation of the term “community health centres” means the phrase should be given its ordinary meaning as a centre providing health services to the community. He submits that all alternative meanings given to the phrase require straining. The Applicant submits that alternative meanings for the phrase include a health centre owned by a community, a centre run by a community or a centre that only deals with “community” (not individual) health.
[27] The Applicant submits that, given there are at least three ways “community health centres” could be interpreted and given the absence of any specific definition of the phrase supports the phrase being given its natural meaning.
[28] The Applicant also says that support for the definition he proposes can be found in s.47 of the Health Services Act 1988 (Vic) (HS Act) which sets out the criteria for registration as a community health service. Section 47 of the HS Act provides as follows:
Registration criteria
(1) In determining an application for registration, the Secretary must have regard to whether the applicant—
(a) is able to provide by suitably qualified health professionals or social workers at least one community health service; and
(b) has links with the local community to which it provides, or will provide, at least one community health service demonstrated, for example, by—
(i) a member of the local community being a member of the applicant’s board of directors; or
(ii) a partnership between the applicant and another local agency; or
(iii) having the capacity to meet the specific health needs of certain classes of persons living in the local community; and
(c) has appropriate governance and governance policies; and
(d) is able to meet the performance standards determined under section 51.
(2) In this section, a “community health service” includes, but is not limited to—
(a) a medical service; or
(b) a dental service; or
(c) an allied health service; or
(d) a community health nursing service; or
(e) a health promotion and illness prevention program.
[29] The Applicant submits that the Respondent provides such services as is demonstrated through his evidence.
[30] The Applicant further submits that the classification structure provides an aide to understanding the coverage of the Award. He submits that:
• The Award is an occupational award;
• The Award covers medical practitioners;
• The Award covers medical practitioners throughout Australia;
• Whilst an employee must be a medical practitioner as defined to be covered by the Award, the medical practitioner has to be employed in a classification listed in clause 14 of the Award.
[31] The Applicant submits that one of the classifications in clause 14 is “community medical practitioner” and the classification descriptors define that as follows:
Community Medical Practitioner is a medical practitioner who has completed not less than four years of post-graduate experience who is employed to practise in community health centres or in general medical practice.
[32] The Applicant says that community medical practitioners are part of the group of medical practitioners and this definition imports into the definition of “medical practitioners”, those who work in general medical practice.
Consideration
[33] The approach to be taken to interpreting the coverage clause of an award was considered in City of Wanneroo v Holmes 10 where Justice French said that “the interpretation of an award begins with a consideration of the natural and ordinary meaning of its words” and that “[t]he words are to be read as a whole and in context” with “[a]mbiguity if any… resolved by a consideration, inter alia, of the history and subject matter of the award”.11
[34] I agree with the submissions of the Applicant that any intention of the “parties” is not a relevant consideration as the making of Modern Awards (including this Award) was a mandated legislative process.
[35] The history of the Award is a relevant consideration. The first exposure draft of the Award was issued by the Australian Industrial Relations Commission (AIRC) in January 2009 (January Award). That exposure draft provided coverage as follows:
4. Coverage
4.1 This industry award covers employers of Medical Practitioners throughout Australia in the classifications listed in clause 14—Minimum weekly wages to the exclusion of any other modern award.
3. Definitions and interpretation
3.1 In this award, unless the contrary intention appears:
medical practitioner means a person who is registered to practice medicine in any State or Territory of Australia, and who is engaged in the practice of medicine.
medical practitioner—non specialist (MPNS) means a Career Medical Practitioner, Senior Career Medical Practitioner or Community Medical Practitioner
[36] The next draft of the proposed Award, issued in April 2009 (April Award), contained the coverage clause and definitions now found in the Award. These have not changed in any further review that may have been undertaken by the AIRC prior to the Award being formally made or since then by the Fair Work Commission (Commission).
[37] It seems to me that the change from the first iteration of the coverage of the Award to what is now found in the Award strongly suggests that the coverage of the Award was intended to be more limited, not just in respect of specific entities but also in the “general places” of employment as the Applicant used the term, than was first proposed.
[38] Further, it is apparent from the April Award that the concept of a practitioner in general practice was understood (the classification definition remains in April 2009 is as it is now) but that the coverage of the Award was not described by reference to general medical practice. These factors weigh against the Applicant’s submissions.
[39] The Award clearly relates to the health industry. That industry provides an important context within which the coverage of the Award should be considered. Whilst I accept that the words in the Award should be given their plain and natural meaning this must be within the appropriate context.
[40] The Applicant worked in a general medical practice as might be commonly understood by users of medical services – the practice was open a number of days per week, patients made appointments to see a particular doctor or arrived without an appointment. The matters for which treatment is sought is many and varied. Of course procedures are undertaken and advice, assistance and care given.
[41] Within the health industry however there are other types of medical services offered, including those offered through day procedure services and community health services. That these are distinguishable (although complementary) to the services provided by a general practice clinic is evident by their existence and the regulatory framework and/or special funding that sits around them.
[42] The services the Applicant claims are provided at WMC do not appear to be any different to what many people attending their general practice clinic would expect to find. It is difficult to bring to mind a general practice clinic that would not provide health services in the local community or that would not do “procedures” with the patient coming and leaving in the one day (e.g. removal of stitches, wound dressing, removal or foreign objects etc.). If “day procedure” services or “community health” services as used in the Award is intended to reflect the services provided in a general practice clinic it is not apparent why the Award definition of medical practitioner was drafted as it was and not to cover “general practice clinics.” But it is as it is and the terms “day procedure centres” and “community health centres” must be given some work to do distinguishable from other health service providers including general practice clinics.
[43] That the Award uses the terms “community health centres” and “day procedure centres” suggests that it distinguishes these from each other and from other health services such as general practice, again supporting a finding that there are differences between them. The evidence strongly supports recognition of the distinction between community health centres, day procedure centres and general medical practices. There is specific funding for community health services and specific registration for day procedure centres. The Respondent in this matter does not receive such funding and is not registered.
[44] I do not read anything into the non-capitalisation of the terms in question. The only terms capitalised in the definition of medical practitioner are proper nouns. The non-capitalisation cannot import some meaning not otherwise apparent.
[45] For these reasons I am satisfied that “community health centres” should be limited to those services that receive specific funding (in this case from the Victorian Government through the Community Health Program funding) and that “day procedure centres” should be limited to those centres registered (in this case by the Victorian Government).
[46] I would further observe that if the Applicant was correct in its approach to the Award it would only need to establish that it provided health services to indigenous patients to be able to claim that it is an aboriginal health service and this is not claimed.
[47] As to the context of the classifications covered by the Award, each of the classification descriptors commences with the phrase “[TITLE] is a medical practitioner…”
[48] The Applicant suggests that, in determining coverage, the Commission should look first at the classification descriptors and work from that point to attempt to bring the Respondent employer within coverage of the Award. Even if an employee might fall within the classification description of an award that award must also cover the relevant employer for the employee to be covered. This is because the Award is expressed to cover “employers of medical practitioners…in the classifications...”. The first matter to resolve, with such a clause, is if the Respondent is an employer of medical practitioners as defined. Only if this is the case can you then look to see if the employee comes within the classification and hence the Award.
[49] I do acknowledge the classification definition of “Community Medical Practitioner” as a medical practitioner (which takes us back to the clause 3 – Definitions and interpretation) employed to practice in community health centres or general medical practice. That a “Community Medical Practitioner” might be a person who is engaged in general medical practice does not mean that the employer of those in the general medical practice come within the coverage of the Award. Further, the lack of the definite article before “general medical practice” suggests that it is no more than a generic descriptor and does not import employment or engagement by a specific employer in a specific general practice. Further, I note that there were no submissions that the Applicant was a “Community Health Practitioner” (as capitalised in the Award).
[50] Whilst I appreciate that the Award is an occupational award this cannot mean that every occupation is covered by the Award regardless of employer coverage.
[51] For all of these reasons I am not satisfied that the Respondent is an employer covered by the Award. The Applicant is therefore not covered by the award.
The high income threshold
[52] The Applicant “makes no submission and leads no evidence” in reply to the Respondent’s claim that he earns in excess of the high income threshold.
[53] I therefore accept the unchallenged submissions of the Respondent that the Applicant earned $169,558.34 at the time his employment ended. The high income threshold at this time was $145,400.
[54] For this reason I find the Applicant earned in excess of the high income threshold.
Jurisdiction
[55] Section 382 of the FW Act states as follows:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[56] Section 396 of the FW Act requires that the Commission determine if a person is protected from unfair dismissal (amongst other things) before it considers the merits of an application.
[57] In this case I am satisfied that, while the Applicant has served the minimum employment period (without determining if he is, in fact, an employee) he is not covered by a modern award, an enterprise agreement does not apply to him and his annual rate of earnings is in excess of the high income threshold.
[58] For this reason that applicant is not protected from unfair dismissal. His application must be dismissed on jurisdictional grounds. An order 12 to this effect will be issued with this decision.
COMMISSIONER
Appearances:
J. Ryan for the Applicant.
M. Rinaldi, of counsel, for the Respondent.
Hearing details:
2019.
Melbourne:
February 8.
1 MA00003.
2 Exhibit A1, paragraph 10.
3 Exhibit A1, paragraph 47.
4 Exhibit A1 paragraph 50.
5 Exhibit A1, paragraph 51.
6 Exhibit R2.
7 Exhibit R4.
8 Exhibit R5.
9 Without conceding that Dr Garoubi is an employee.
10 30 IR 362.
11 Ibid at 378.
12 PR705194.
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