Grabovsky v United Protestant Association of NSW Ltd

[2015] FWC 5161

[2015] FWC 5161

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.603 - Varying and revoking the Fair Work Commission’s decisions

s.608 - Referring questions of law to the Federal Court

Mrs Inna Grabovsky
v
United Protestant Association of NSW Ltd T/A UPA
(C2015/4906 and C2015/4907)

JUSTICE ROSS, PRESIDENT MELBOURNE, 29 JULY 2015

Section 608 Fair Work Act 2009 - Varying or revoking the Fair Work Commission’s decisions - s.603 Fair Work Act 2009 - Referral of a question of law to the Federal Court - Applications dismissed.

[1] The two applications before me seek the variation of certain decisions made by the Fair Work Commission (the Commission), pursuant to s.603 of the Fair Work Act 2009 (Cth) (the Act) or, in the alternative, the referral of certain questions of law to the Federal Court, pursuant to s.608 of the Act.

[2] The applications relate to a dispute arising out of an enterprise agreement, the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 (the Agreement). The Respondent in the matters is United Protestant Association of NSW Ltd T/A UPA (the Respondent). The background may be shortly stated.

[3] On 5 March 2014, Mrs Grabovsky (the Applicant) filed an application pursuant to s.739 of the Act to deal with a dispute in accordance with a dispute settlement procedure in the Agreement. The dispute concerned the Applicant’s classification; payment for undertaking higher duties; workload; and alleged adverse action taken by the Respondent towards the Applicant.

[4] The Respondent objected to the arbitration of part of the dispute on the ground that the Agreement did not provide the Commission with the power to arbitrate in relation to disputes concerning workload, other than by agreement. 1 On 20 August 2015 Deputy President Booth issued a decision upholding the Respondent’s jurisdictional objection2 and listed the balance of the dispute for arbitration.

[5] On 9 September 2014 the Applicant filed a notice of appeal in respect of Deputy President Booth’s decision and on 29 October 2014 a Full Bench of the Commission refused permission to appeal. 3 The essence of the Full Bench’s reasons are set out at paragraphs 12-14 and 16-18 of its decision:

“[12] We consider that only the workload management question is properly before us in the appeal. We note that the representation issue has been resolved, at least in part, by the provision to the applicant of a copy of the Form F53 Notice of Representative Commencing to Act dated 13 March 2014. This form was signed by the respondent’s General Manager and authorised the representation of the respondent by Ms McConville. The notice was filed in the initial proceedings although Mr Grabovsky submitted he had not previously seen the notice. In relation to the issue regarding the provision of pay slips, we note the rulings given in transcript by the Deputy President on 30 June 2014 and that the Commission does not have jurisdiction under ss.536 and 546 of the Act to make the orders sought by the applicant.

[13] It is clear from the Agreement (see clause 33.4 and clause 42.6(a)) that there must be agreement by the parties before arbitration of a dispute about workload management issues can be effected. The respondent has indicated that it does not consent to the Commission arbitrating any dispute concerning workload management issues. It is also clear from the relevant provisions of the Act that the Commission may arbitrate only in relation to a dispute under a dispute resolution procedure in an enterprise agreement where it is expressly authorised to do so. 4

[14] It has not been shown in the appeal that the relevant provisions of the Agreement are unlawful, either within the meaning of s.194 of the Act or because of any conflict with the provisions of the Work Health and Safety Act 2011 (Cth). …

[16] We do not consider that the applicant has in the present matter demonstrated an
arguable case as to appealable error in relation to the decision of the Deputy President. The Deputy President correctly interpreted the relevant clauses of the Agreement and correctly determined that there was no power in the Commission to arbitrate with respect to the workload issue given the objection by the respondent.

[17] Further, it has not been demonstrated that there are any matters raised by the appeal such that it would be in the public interest to grant permission to appeal. 5

[18] Accordingly, we have decided not to grant permission to appeal in this matter. We have also decided to set aside the stay order made on 26 September 2014 so that proceedings before the Deputy President relating to the other matters in dispute between the parties may proceed.” 6

[6] The remaining matters in dispute were heard and determined by Vice President Lawler. The central issue in dispute was whether the Applicant should be classified as a Grade 2 or Grade 3 Care Service Employee. The fundamental contention advanced on behalf of the Applicant was that the duties performed by Mrs Grabovsky in connection with the ‘administration of medication’ to residents of the aged care facility at which she worked were duties which fell outside the classification description for a Grade 2 Care Service Employee and could not properly be performed by an employee in that classification.

[7] In a decision 7 issued on 10 April 2015 Vice President Lawler rejected the contention advanced on behalf of the Applicant and concluded that the Applicant had been properly classified as a Grade 2 Care Service Employee8. The Vice President also rejected the Applicant’s contention that she was entitled to higher duties when administering medication to patients via a Webster pack.9

[8] On 29 April 2015 the Applicant filed a notice of appeal in respect of Vice President Lawler’s decision.

[9] On 5 June 2015 Vice President Hatcher refused an application by Mrs Grabovsky to stay Vice President Lawler’s decision 10 and on 25 June 2015 a Full Bench of the Commission refused permission to appeal11. The essence of the Full Bench’s reasons for refusing permission to appeal are set out at paragraphs 2-3, 15-16 and 21-26 of its decision:

“[2] The primary feature of Mrs Grabovsky's case in this respect was the proposition that an employee classified at CSE Grade 2 could not be required to administer medicines. Mrs Grabovsky contended that as she had been required to undertake duties of this nature, her payment rate was incorrect and she should have been paid as a CSE Grade 4, Level Two. Mrs Grabovsky also contended that other aspects of her duties required her to be placed in a higher classification.

[3] In the course of the arbitration and particularly in this appeal application, Mrs Grabovsky’s primary argument metamorphosed into a broader case that any direction to an aged care employee who was not a health practitioner registered under the Health Practitioner Regulation National Law 2009 (NSW) (the NSW enactment of national model legislation) to “administer medicine” was unlawful. Both at first instance and on appeal this broader case tended, at least from Mrs Grabovsky’s perspective, to overshadow the narrower industrial issue which was the subject of the dispute…

[15] Vice President Lawler found that Mrs Grabovsky’s duties in this respect could properly be characterised as involving the assistance and support of residents with medication utilising medication compliance aids, and therefore fell within the prescribed duties for the CSE Grade 2 classification. We did not perceive any specific challenge on the part of Mrs Grabovsky to the conclusions reached in this respect, and in any event we consider that these conclusions were correct for the reasons identified by Vice President Lawler in the Decision. There were further findings in the Decision that Mrs Grabovsky had not been designated by her employer to perform the supervisory functions necessary to attract the application of the CSE Grade 3 classification and that Mrs Grabovsky did not have the requisite qualifications and did not work in a facility in which more than 80% of the places were allocated high care places such as to attract the application of the CSE Grade 4 Level Two classification. Again, it is sufficient for us to say that these conclusions were correct for the reasons stated in the Decision. They were not challenged in Mrs Grabovsky’s appeal.

[16] We therefore consider that the industrial dispute concerning Mrs Grabovsky’s classification and pay rate was appropriately and correctly resolved by the Decision. However, as earlier stated, the issue of the Agreement classifications largely fell by the wayside in the appeal as Mrs Grabovsky concentrated on her wider argument concerning the administration of medicines by persons not registered as health practitioners. It may immediately be observed that the argument that Mrs Grabovsky, not being a registered health practitioner, could not be required to “administer medicine” was of no real assistance or even relevance to her contention that she was entitled to the pay of a CSE Grade 3 or 4 under the Agreement. On Mrs Grabovsky’s argument she could not be required to “administer medicines” no matter how she was classified or paid, because she was not a registered health practitioner. She certainly could not be required to “deliver medication to residents” as required by a CSE Grade 4 Level Two. No CSE at any grade is required to be a registered health practitioner…

[21] In the absence of any relevant assistance from Mrs Grabovsky, we have ourselves examined in an undirected way the Health Practitioner Regulation National Law. It establishes a national scheme for the registration of health practitioners, but does not so far as we can discern make any provision applicable to the performance of aged-care duties by persons who are not registered health practitioners. We certainly cannot identify any prohibition on the performance of duties of the type performed by Mrs Grabovsky.

[22] We note that contained in the evidence was a comprehensive report issued by the Commonwealth Aged Care Commissioner, Ms Rae Lamb, on 7 November 2014 which dealt with, among other things, a complaint made by Mr Grabovsky (Mrs Grabovsky’s representative) that the respondent was “unlawfully directing grade II care service employees to undertake medication duties”. The conclusion about that issue reached by the Aged Care Commissioner was as follows:

“The combined effect of the Quality Principles, the Poisons and Therapeutic Goods Act 1966 (NSW) and the Poisons and Therapeutic Goods Regulations 2008 (NSW) mean that a care service employee grade 2, under the direction of appropriately qualified staff, may lawfully administer prescription medication.”

[23] Nothing put before us by Mrs Grabovsky would cause us to doubt the correctness of this conclusion insofar as her duties were concerned. The evidence was that the medication which she assisted to provide to residents was prescribed by a medical practitioner and issued by a pharmacist in a Webster pack containing instructions as to dosage and frequency of use. We are satisfied that this constituted the “direction of appropriately qualified staff” referred to in the conclusion of the Aged Care Commissioner.

[24] Nothing in the dispute before the Commission properly gave rise to any wider question concerning the extent to which CSEs other than Mrs Grabovsky could be required to administer medicine by other methods (such as by injection). The dispute did not require for its resolution a broad inquiry into the practices and procedures of the respondent and other aged care providers concerning the administration of medicines. Further, we consider in any event that it is doubtful (to say the least) that the grievance and dispute resolution procedure in clause 42 of the Agreement, from which the jurisdiction of the Commission in this matter springs, would authorise a wider inquiry of this nature (noting however that this point was not argued before us).

[25] For the sake of completeness only, we will refer to Mrs Grabovsky’s repeated assertion that permission to appeal should be granted in the public interest because aged care residents had died as a result of unqualified personnel administering medicines. There was no evidence whatsoever advanced to support this most grave allegation. Nor was even the most basic level of detail of the allegation identified such as to permit any form of considered response. We have no reason therefore to give it any weight at all in our consideration of this matter.

[26] We are not satisfied that there is any basis to grant permission to appeal either in the public interest or on discretionary grounds. We consider that the Decision correctly determined the issue of Mrs Grabovsky’s classification and pay rate under the Agreement.” 12 (footnotes omitted)

[10] In summary, the Applicant’s s.739 application has been dealt with in two separate first instance decisions:

● the 20 August 2014 decision of Deputy President Booth ([2014] FWC 5634) (Decision 1); and

● the 10 April 2015 decision of Vice President Lawler ([2015] FWC 2504) (Decision 3).

[11] Both first instance decisions were the subject of appeal proceedings and in each instance permission to appeal was refused:

● the appeal in respect of Deputy President Booth’s decision was determined on 29 October 2014 ([2014] FWCFB 7533) (Decision 2);

● on 5 June 2015 Vice President Hatcher refused an application to stay Vice President Lawler’s decision ([2015] FWC 3313) (Decision 4); and

● the appeal in respect of Vice President Lawler’s decision was determined on 25 June 2015 ([2015] FWCFB 3926) (Decision 5).

[12] As mentioned previously, there are two applications before me. The first, filed on 25 June 2015 (No. C2015/4906), concerns the decision of Deputy President Booth and the subsequent appeal (Decisions 1 and 3 above) (Application 1). The Applicant seeks to vary Decisions 1 and 3, pursuant to s.603(2)(i) of the Act, such that the workload dispute may be the subject of arbitration. In the alternative the Applicant seeks to refer a question of law to the Federal Court, pursuant to s.608 of the Act. I will return to the nature of the question sought to be referred shortly.

[13] The second application, filed on 3 July 2015 (No. C2015/4907) concerns decisions relating to Vice President Lawler’s decision of 10 April 2015, namely the decisions in respect of the stay application and the appeal (Decisions 4 and 5 above) (Application 2). The Applicant seeks to vary Decisions 4 and 5, pursuant to s.603(2)(i) of the Act, to stay the decision of Vice President Lawler and to allow the appeal from that decision on the grounds set out in the original notice of appeal. In the alternative the Applicant seeks to refer a question of law to the Federal Court, pursuant to s.608 of the Act. In addition the Applicant is seeking an urgent stay of Vice President Lawler’s decision of 10 April 2015 (Decision 3 above).

[14] There are three elements to the applications before me:

(i) an application for a stay order;
(ii) the variation of a first instance decision and two appeal decisions, pursuant to s.603 of the Act; and
(iii) the referral of certain questions of law, pursuant to s.608 of the Act.

[15] It is convenient to deal with each of these elements in turn as they apply to the two applications before me.

(i) The stay application

[16] As part of Application 2 the Applicant seeks an urgent stay of Vice President Lawler’s decision of 10 April 2015 (Decision 3).

[17] The power to stay a decision is in s.606 of the Act, which provides as follows:

606 Staying decisions that are appealed or reviewed

(1) If, under section 604 or 605, the FWC hears an appeal from, or conducts a review of, a decision, the FWC may (except as provided by subsection (3)) order that the operation of the whole or part of the decision be stayed, on any terms and conditions that the FWC considers appropriate, until a decision in relation to the appeal or review is made or the FWC makes a further order.

(2) If a Full Bench is hearing the appeal or conducting the review, an order under subsection (1) in relation to the appeal or review may be made by:

(a) the Full Bench; or
(b) the President; or
(c) a Vice President; or
(d) a Deputy President.

(3) This section does not apply in relation to a decision to make a protected action ballot order. (emphasis added)

[18] It is apparent from the terms of s.606(1) that the power to stay a decision is not at large. It is not a power that applies generally to all decisions. A stay order may only be made in relation to a decision subject to appeal (under s.604) or a review (under s.605).

[19] Further, the making of a stay order is an interlocutory step, pending the determination of the appeal or review. So much is clear from the words at the end of s.606(1), that is:

“…, until a decision in relation to the appeal or review is made or the FWC makes a further order.”

[20] The appeal in relation to the decision sought to be stayed has been heard and determined. There is no pendent appeal in respect of Vice President Lawler’s decision and hence there is no power to order that the operation of that decision be stayed.

[21] If I am wrong about the extent of the power in s.606(1) I would not exercise the discretion to grant a stay because I am not persuaded that there is an operative decision with ongoing future effect capable of being stayed under s.606(1). In this regard I agree with, and adopt, the reasons given by Vice President Hatcher for dismissing the initial stay application, in particular the following aspects of the Vice President’s decision:

“I do not consider that Ms Grabovsky has demonstrated this to be the case here. The decision under appeal did not involve the making of any order or determination with ongoing legal effect. In substance, Vice President Lawler declined to interfere with the legal and practical status quo that operated with respect to Ms Grabovsky's employment. In that circumstance, there is nothing capable of being stayed under section 606(1) of the Act.

The grounds for the stay which have been identified really go to matters external to the decision under appeal. What Ms Grabovsky asks that I do is to make an order in the public interest requiring changes to practices which apparently already exist in the respondent's workplace, and perhaps elsewhere. I do not consider that there is any power to do this by way of a stay order under section 606(1) of the Act.” 13

(ii) The s.603 variation/revocation applications

[22] The applicant seeks to vary Decisions 1, 3, 4 and 5 pursuant to s.603 of the Act. Section 603 provides:

603 Varying and revoking the FWC’s decisions
(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).
Note: If the FWC makes a decision to make an instrument, the FWC may vary or revoke the instrument under this subsection (see subsection 598(2)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or
(b) on application by:

(i) a person who is affected by the decision; or
(ii) if the kind of decision is prescribed by the regulations—a person prescribed by the regulations in relation to that kind of decision.

(3) The FWC must not vary or revoke any of the following decisions of the FWC under this section:

(a) a decision under Part 2-3 (which deals with modern awards);
(b) a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements);
(c) a decision under Part 2-5 (which deals with workplace determinations);
(d) a decision under Part 2-6 (which deals with minimum wages);
(e) a decision under Division 3 of Part 2-8 (which deals with transfer of business);
(f) a decision under Division 8 of Part 3-3 (which deals with protected action ballots);
(g) a decision under section 472 (which deals with partial work bans);
(h) a decision that is prescribed by the regulations.

Note: The FWC can vary or revoke decisions, and instruments made by decisions, under other provisions of this Act (see, for example, sections 447 and 448).

[23] Section 603 is in Part 5-1 of the Act which is titled ‘The Fair Work Commission’ and deals with, among other things, the functions of the Commission and the conduct of matters before the Commission. Section 603 appears in Division 3 of Part 5-1 headed ‘Conduct of matters before the FWC’.

[24] Subsection 603(1) confers a discretion to vary or revoke ‘a decision of the FWC that is made under [the] Act’ (other than a decision referred to in s.603(3)). Section 598 elaborates on the concept of ‘a decision’ for the purpose of Part 5-1 (in which s.603 appears), as follows:

598 Decisions of the FWC

(1) A reference in this Part to a decision of the FWC includes any decision of the FWC however described. However, to avoid doubt, a reference to a decision of the FWC does not include an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC’s power to deal with disputes).

Note: Examples of decisions that the FWC makes include making modern awards, approving or refusing to approve enterprise agreements, decisions as to how, when and where a matter is to be dealt with, deciding whether to grant permission to hear an appeal, and decisions in relation to appeals.

(2) If the FWC makes a decision that makes or varies an instrument, a reference in this Part to a decision of the FWC includes the FWC’s decision to make or vary the instrument in the particular terms decided.

(3) A decision of the FWC that is described as an order must be made by order.

Note: An example of a decision that is described as an order is a bargaining order.

(4) A decision of the FWC that is not described as an order may be made by order.

[25] Subsection 598(1) makes reference to s.595(2), which provides as follows:

595 FWC’s power to deal with disputes
…
(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.

[26] It follows that making a ‘recommendation’ or ‘expressing an opinion’ in relation to a dispute is not a ‘decision’ for the purpose of s.603.

[27] Subsection s.603(3) expressly excludes certain classes of decisions (including a decision that is prescribed by the Regulations) from the scope of the general power to vary or revoke in s.603(1). No regulations have been made pursuant to s.603(3)(h).

[28] The terms of s.603 make it clear that the power conferred was intended to apply to any decision of the Commission, however described, subject to the exclusions in s.603(3). As Beach J observed in Asmar and Kitching v Fair Work Commission:

“One can infer from the detail of s603(3) that it was put together with some care …

Alternatively expressed, s603(1) was intended to be applied in all its generality subject to the extant carve outs and any additions prescribed by the regulations.” 14

[29] The decisions sought to be varied by the Applicant are decisions which fall within the scope of s.603(1) in that they are decisions made by the Commission under the Act and they do not fall within the scope of the exclusion in s.603(3).

[30] What then are the limits, if any, of the power in s.603(1)?

[31] Ascertaining the meaning of s.603 necessarily begins with the ordinary and grammatical meaning of the words used. These words must be read in context by reference to the language of the Act as a whole and to its legislative purpose. The apparent scope of a discretion such as that in s.603(1) may be limited by other sections of the Act. The provisions of an act must be read together such that they fit with one another. This may require a provision to be read more narrowly than it would if it stood on its own. 15

[32] The legislative history is of some assistance is construing the scope of the power conferred in s.603(1).

[33] The legislative antecedent to s.603 appears to be ss.111(1)(f) and (2) of the Industrial Relations Act1988 (Cth) (the IR Act), which provided as follows:

“s 111 Particular powers of Commission

(1) Subject to this Act, the Commission may, in relation to an industrial dispute: …

(f) set aside, revoke or vary an award, order, direction, determination or other decision of the Commission; …

(2) Unless the context otherwise requires, a reference in this section (except subsection (1AA)) to an industrial dispute includes a reference to any other proceeding before the Commission.”

[34] There was a similarly expressed power in the subsequent Workplace Relations Act1996 (Cth) (at s.111(1)(f)).

[35] There was no precise counterpart for the express power in s.111(1)(f) of the IR Act in earlier legislative provisions, though there were express powers to set aside or vary an award. 16 In the 1931 decision of Australian Railways Union v Victorian Railways Commissioners17, the then Court implied a power to revoke orders. In the course of its judgment the Court set out a principled approach to the exercise of the inherent power, as follows:

“The applicant unions submit that the case comes within section 38(o) which enacts that the Court shall ‘as regards every industrial dispute of which it has cognizance, have power ... to re-open any question’. By the re-opening here referred to is obviously meant a reconsideration of the issue upon which a previous decision has been given and a possible reversal or modification of that decision.

Where a Court in the exercise of ordinary legal jurisdiction makes a decision upon an issue of fact or law in a proceeding it is as a rule functus officio as to that proceeding and cannot in the absence of express statutory authority re-open it for the purpose or reconsidering its decision. In the public interest it is necessary that there should be finality of litigation, subject however in many cases to a right of appeal to a superior tribunal. ...

Where however this Court is exercising its arbitral powers the essential nature of its functions is quite different from that of an ordinary Court. Its arbitral decision prescribes a continuous rule of conduct for the parties in respect of contracts of employment, a rule which, independently of any existing legal relationship between them, in effect ordains they cannot make these contracts except within the limits prescribed. This rule is intended to operate chiefly upon facts that have not yet arisen and amid circumstances that may in the future change greatly in character. An award of this Court is therefore an ordinance rather than a judgment. Moreover, orders of the Court incidental to the exercise or refusal to exercise arbitral functions such as those under section 38(h), partake of the same character - in making them the Court acts as a quasi-legislator and not as a Court in the strict sense of the word. The same reasoning seems to apply to an order setting aside the whole or part of an award. It resembles the repeal of an ordinance and the repeal of an ordinance by its maker is certainly no bar to its re-enactment by that maker.

These considerations suggest that in the absence of statutory prohibition the Court would have power to re-open any of its awards or orders made in the course of its arbitral functions including an order setting aside an award. They go to show that the words in section 38(o) as to re-opening any question are wide enough to cover such an order and they are strengthened by the fact that no arbitral orders whether positive or negative may be made the subject of appeal to any other tribunal. Having regard to the quasi-legislative nature of the Court’s activity in making such orders and to the possible need for revoking or modifying them, the power to revoke or modify should rest somewhere and its appropriate place is in the Court. ...

... that there is nothing in the Act limiting the power of the Court to deal with its own orders upon appropriate application and that the power ‘to re-open any question’ in section 38(o) is given without any qualification, forces the conclusion that the Court has power to revoke its setting aside orders in these cases provided that the relevant disputes in respect of which the awards were made are still in fact existing.

But granting the jurisdiction to revoke, there will nevertheless remain very important questions as to whether it should be exercised. These vary according to circumstances and the Court does not think it can indicate here how they should be dealt with ...” 18

[36] As Munro J observed in Rheem-Rydalmere Plant Industrial Action Order 2002 19, the above observations provide a useful guide to how the more broadly expressed contemporary power should be exercised.

[37] It is apparent from its terms and the legislative context that s.603 is intended to be broader than a statutory form of the slip rule. So much is clear from s.602, which is directed at slip rule problems. The question is how broad the power is and in what circumstances should it be exercised?

[38] The power to vary or revoke a decision has generally only been exercised where there has been a change in circumstances such as to warrant the variation or revocation of the original decision 20 or, where the initial decision was based on incomplete21 or false information, fraudulently procured or otherwise.22

[39] As a general proposition applications to vary or revoke a decision should not be used to re-litigate the original case. After a case has been decided against a party, that party should not be permitted to raise a new argument which, deliberately or by inadvertence, it failed to put during the original hearing when it had the opportunity to do so. 23

[40] In the matters before me the Applicant seeks the variation of four decisions (Decisions 1, 3, 4 and 5). Application 1 seeks to vary the decision of Deputy President Booth and the subsequent appeal such that the workload dispute may be the subject of arbitration. It will be recalled that on appeal the Full Bench determined that the Deputy President had correctly interpreted the relevant clauses of the Agreement and had correctly determined that there was no power in the Commission to arbitrate with respect to the workload issue. 24 In essence the Applicant asks that I overturn the Full Bench decision on the basis that it was wrongly decided. In addition to the original grounds of appeal the Applicant seeks to agitate two additional grounds.25

[41] I am not persuaded that s.603(1) provides the requisite power to grant the relief sought. The Act establishes a process whereby a person aggrieved by a decision may appeal the decision, with the permission of the Commission (s.604). Appeals must be determined by a Full Bench (s.613). As a general proposition that where a particular procedure is designated to achieve something other procedures are impliedly excluded, as reflected in the maxim expressum facit cessare tacitum.

[42] The maxim was applied in Anthony Hordern and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia 26, in whichGavan Duffy CJ and Dixon J said:

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

[43] Similarly, in R v Wallis; Ex parte Employers Association of Wool Selling Brokers 27(Wallis) Dixon J said (at 550):

“[A]n enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.”

[44] In Wallis the Court held that a section of an act that indicated the manner in which an arbitrator was to deal with a particular issue precluded the arbitrator dealing with that matter in accordance with more general procedures provided for in that act.

[45] Acceding to the Applicant’s applications would undermine the statutory appeal process and would be inconsistent with the public interest that there be finality in litigation. In my view the apparent scope of the power in s.603(1) must be construed such that it does not permit a single Member to vary or revoke an appeal decision by a Full Bench. Absent such a limitation a Member whose decision was overturned on appeal could act on their own motion (pursuant to s.603(2)(a)), or on the application of the respondent to the appeal (pursuant to s.603(2)(b)(i)), and vary or revoke the appeal decision. Such an outcome cannot have been intended by the legislature.

[46] In the event that I am wrong about the scope of the power in s.603(1) and that it is in fact broad enough to encompass a variation of the type sought, I would decline to exercise the discretion to vary the relevant decisions for the reasons expressed in paragraph [45] above.

[47] Application 2 seeks to vary the decision of Vice President Hatcher (Decision 4) and the decision of the Full Bench dealing with the appeal from Vice President Lawler’s decision (Decision 5). For the reasons given in respect of Application 1, I am not persuaded that s.603(1) provides the requisite power to grant the relief sought in relation to Decision 5; alternatively I would decline to exercise the discretion to vary the decision for the reasons set out at paragraph [45] above.

[48] I would also reject the application to vary Decision 4, albeit for different reasons. For the reasons given at paragraphs [16]-[21] there is no power to stay Vice President Lawler’s decision as there is no pendent appeal in relation to the decision sought to be stayed. Granting the relief sought pursuant to s.603(1) would be contrary to the well established principle that what cannot be done directly cannot be done indirectly. 28

[49] This principle was applied by a predecessor Tribunal to the Commission in the Family Court Counsellors Case. 29

[50] Further, as stated above (at paragraph [21]), I am not persuaded that there is an operative decision with ongoing future effect capable of being stayed under s.606(1).

(iii) The s.608 referral applications

[51] The referral applications are brought pursuant to s.608 of the Act, which is in the following terms:

s.608 Referring questions of law to the Federal Court

(1) The President may refer a question of law arising in a matter before the FWC for the opinion of the Federal Court.

(2) A question of law referred under subsection (1) must be determined by the Full Court of the Federal Court.

(3) The FWC may make a decision in relation to the matter even if the Federal Court is determining the question of law, except if the question is whether the FWC may exercise powers in relation to the matter.

(4) Once the Federal Court has determined the question, the FWC may only make a decision in relation to the matter that is not inconsistent with the opinion of the Federal Court (if the FWC has not already done so).

(5) However, if the FWC has made a decision in relation to the matter that is inconsistent with the opinion of the Federal Court, the FWC must vary the decision in such a way as to make it consistent with the opinion of the Federal Court.

[52] Section 608 confers discretion on the President as to whether a question of law arising in a matter before the Commission should be referred for the opinion of the Federal Court. Subsection 608(1) imposes two conditions on the power to refer a question for the opinion of the Court: first, the question must be one ‘of law’; and second, the question must be one ‘arising in a matter before the Commission’.

[53] As to the meaning of the expression ‘a question of law arising in a matter before the FWC’ in Hamzy v Tricon International Restaurants and another 30 the Full Federal Court held that a question does not ‘arise’, within the meaning of what is now s.608(1), ‘unless it pertains to an issue that actually exists’. The Court cited a statement by Isaacs J in Australian Commonwealth Shipping Board v Federated Seaman’s Union of Australia31 in support of this proposition:

“It is manifestly impossible for this Court or any other Court to ‘hear and determine’ a question so as to give it the character of a conclusive judgment, unless that question ‘arises’ so as necessarily to enter into the legal determination of the matter upon the facts stated. Remote or merely possible relation of the question of law to the facts is not enough to make the question ‘arise’ in a legal sense. To say that it may arise is not the same as saying it does arise, which is the meaning of ‘arising’.”

[54] The above statement was applied by the Full Court of the Federal Court in Re Alcoota Land Claim No 146. 32

[55] The discretion conferred by s.608(1) is to be exercised having regard to the purpose and objects of the Act. In this context I note that s.577 of the Act provides that the Commission must perform its functions and exercise its powers in a manner that:

“(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.”

[56] The applications before me seek to refer two questions to the Federal Court.

[57] In Application 1 the Applicant seeks to refer a question ‘on the subject of arbitration of workload management and legitimacy on inclusion of restrictions for arbitration of the workload disputes in any workplace agreement (nationwide)’. As best as I can discern the Applicant contends that it is unlawful for a dispute settlement term in an enterprise agreement to exclude workload disputes from arbitration and seeks an opinion from the Federal Court in those terms.

[58] The question sought to be referred in Application 2 is not specified in the application itself but was canvassed during the course of oral argument:

“JUSTICE ROSS:  Okay.  Can I just ask, Mr Grabovsky, what is the question of law that you're seeking the court to have determined?

MR GRABOVSKY: First that the Poisons and Therapeutic Goods Act 1966 is erroneous Act to be used for determination of permissibility to administer medicine. The Health Practitioner Regulation National Law 2009, that is the correct Act which regulates professional conduct which determines who may or may not be able to administer medicine. That particular provision of that particular Act should be used for creating policies of the respondent, which they didn't.

JUSTICE ROSS:  All right.  Just so I can track this through, you say that at first instance and on appeal, the Commission made an error about which of those two Acts applied to the administration of medicines?

MR GRABOVSKY:  That's correct.

JUSTICE ROSS:  That is the issue that you want determined by the Federal Court and then you want the Federal Court to, presumably, quash the appeals and remit the matter.

MR GRABOVSKY:  Yes, absolutely.” 33

[59] I am not persuaded to refer either of the questions to the Federal Court, for three, alternate, reasons.

[60] First, the questions sought to be referred are not questions ‘arising in a matter before the FWC’, within the meaning of s.608(1). The questions sought to be referred may be said to relate to the scope of the dispute settlement term in the Agreement (and in particular whether workload disputes may be dealt with by arbitration, absent the consent of the parties) and whether the Applicant has been appropriately classified. These matters have been heard and determined by the Commission. There is presently no matter before the Commission in which the questions sought to be referred arise.

[61] I note that in correspondence dated 10 July 2015, the Applicant contends that there is a matter presently before the Commission such as to provide a basis for the referral applications. In particular, it is submitted that Application 1 was filed before the decision of the Full Bench determining the appeal from Deputy President Booth’s decision was served on the Applicant and, further, there are unresolved issues in dispute between the parties. I do not find these submissions persuasive. Whether a question of law arises ‘in a matter before the Commission’ is to be determined at the time the power is exercised not by reference to the circumstances which existed when the referral application was made.

[62] Second, the questions are not appropriate for referral pursuant to s.608. The question sought to be referred in Application 1 goes well beyond the scope of any matter before the Commission. It seeks a general ruling on the scope of dispute settlement terms in enterprise agreements. In short the Applicant is seeking an advisory opinion in the absence of stated facts.

[63] The question sought to be referred in Application 2 is not appropriate for referral. For the reasons given by the Full Bench in Decision 5, the question does not bear on the issue which was the subject of the dispute between the parties, being the Applicant’s classification and pay rate. 34 The referral application also appears to proceed on the premise that the Full Bench erroneously referred to the Poisons and Therapeutic Goods Act 1966 rather than the Health Practitioners Regulation National Law. It is apparent from Decision 5 that the Full Bench did in fact consider the operation of the Health Practitioners Regulation National Law.35

[64] Third, the dispute in which these questions are said to arise has been determined by the decisions to which I have referred, albeit not in the manner contended for by the Applicant. Indeed the Applicant submits in essence, that the Full Benches reached the wrong conclusion and that is one of the reasons advanced in support of the referral applications. Viewed in this way, it is apparent that the referral applications constitute a collateral attack on the Full Bench decisions. I am not persuaded that the discretion in s.608 should be exercised to facilitate a collateral attack on a Full Bench decision. If the Applicant wishes to challenge the Full Bench decisions then she should do so by seeking judicial review, rather than by means of a collateral attack through the referral of a question of law.

Conclusion

[65] The applications are dismissed for the reasons given.

PRESIDENT

Appearances:

The Applicant: Mr I. Grabovsky

The Respondent: Mr T. Saunders of Counsel

Hearing details:

Melbourne

7 July 2015

Final written submissions:

Applicant’s letter dated 20 July 2015.

 1   Respondent’s submission on jurisdictional objection, matter C2014/3313, 14 July 2015

 2   [2014] FWC 5634

 3   [2014] FWCFB 7533

 4   See ss.595, 738 and 739, especially ss.595(3) and (5), s.738(b), and s.739(3) and (4)

 5  See s.604(2) and the consideration of the meaning of “public interest” in GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at paragraphs [26]-[27]

 6   [2014] FWCFB 7533 at paragraphs [12]-[14] and [16]-[18]

 7   [2015] FWC 2504

 8   Ibid at paragraphs [22]-[44]

 9   Ibid at paragraphs [47]-[50] A ‘Webster pack’ is described at paragraphs [10]-[12] of the Vice President’s decision as follows: “Many residents in nursing homes find themselves prescribed with a range of medications by their treating doctor(s). It is important that residents take the correct medication at the times determined by their treating doctor(s). A device known as a “Webster pack” is in almost universal use to assist residents to ensure that they comply properly with their medication regime.

A Webster pack contains a series of blisters into which a pharmacist places all of the tablets/capsules of medication that a particular resident is required to take over a specified period (usually a week) in accordance with the prescriptions prepared by the resident’s treating doctor. All of the tablets/capsules that the resident must take at a particular time (for example in the morning, at lunch, at dinner or in the evening), on a particular day, are contained within a single blister bubble. The bubbles are ordered so that they can be broken successively over the period covered by the pack. Each bubble is labelled to indicate the day and time that the contents of the blister bubble should be consumed by the resident.
A Webster pack, once prepared by a pharmacist for a particular resident, will contain all of the tablets or capsules of medication that the resident should consume in the period covered by the pack. If a resident consumes all of the pills in each bubble successively at the nominated time, the resident will receive their correct medication, at the correct time for the entire period covered by the pack.”

 10   [2015] FWC 3313

 11   [2015] FWCFB 3926

 12   [2015] FWCFB 3926 at paragraphs [2]-[3]; [15]-[16]; and [21]-[26]

 13   [2015] FWC 3313 at paragraphs [9]-[10]

 14 [2015] FCA 16 at paragraphs [68]-[69]

 15   Ross v R (1979) 141 CLR 432 at paragraph 440; Commissioner of Stamps v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at paragraph 479

 16   See s.5 of the Conciliation and Arbitration Act 1957 and s.49 of the Conciliation and Arbitration Act 1904-1955

 17 (1931) 30 CAR 766

 18 Ibid 30 CAR 766 at paragraphs 767-769.

 19   Print PR929970, 9 April 2002 at paragraph [39]

 20   See Re Endeavour Energy[2014] FWC 198

 21   Rainshield Roofing Pty Ltd t/as Rainshield Roofing v Peter Paerau[2014] FWC 3946

 22   Re Rubber, Plastic and Cablemaking Industry Award 1972 (1975) 167 CAR 929 at paragraph 931 per Gaudron J

 23   Metwally v University of Wollongong [1985] HA 28 at paragraph [7]

 24   [2014] FWCFB 7533 at paragraph [16]

 25   See paragraphs 27-30 of the Application filed on 25 June 2015

 26 (1932) 47 CLR 1 at page 7

 27 (1949) 78 CLR 529 at page 550

 28   Commonwealth v State of Queensland (1920) 29 CLR 1 at paragraph 15; Toohey v Gunther (1928) 41 CLR 181 at paragraph 195 and R v Gough; Ex parte Australasian Meat Industry Employees’ Union (1965) 114 CLR 394 at paragraph 422; see also DK Singh ‘What Cannot be Done Directly Cannot be Done Indirectly: Part I’ (1959) 32 ALR 374 and DK Singh, ‘What Cannot be Done Directly Cannot be Done Indirectly: Part II’ (1959) 33 ALJ 3.

 29   Print K8020, 11 June 1993 - per Maddern J, Moore VP, Keogh SDP, Marsh SDP, Harrison DP, Cox C and Smith C. Re Rubber, Plastic and Cablemaking Industry Award 1972 (1975) 167 CAR at paragraph 932 per Robinson J, Staples J and Portus C; Re Pecks Australia Pty Limited, Manufacturing Operations Agreement (Rooty Hill) 1993, AIRC Print L2022 per Boulton J, Munro J and Lawson C; Australian Workers’ Union v Energy Developments Limited [1996] AIRC 2167 (19 March 1996) per Ross VP, Maher DP and McDonald C

 30 [2001] 115 FCR 78 at paragraph [21]

 31 (1925) 36 CLR 442 at paragraph 450

 32 [1998] 82 FCR 391

 33   7 July 2015 Transcript at paragraphs 72-77

 34   See [2015] FWCFB 3926 at paragraphs [16]-[18]

 35   See ibid at paragraphs [19]-[21]

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