Grabovsky v United Protestant Association of NSW Ltd T/A UPA

[2019] FWC 7356

[2019] FWC 7356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.602 - Application to correct obvious error(s) etc. in relation to FWC’s decision

Inna Grabovsky
v
United Protestant Association of NSW Ltd T/A UPA
(ADM2019/8)

DEPUTY PRESIDENT BOOTH SYDNEY, 22 NOVEMBER 2019

Application to correct errors in decision – application dismissed.

[1] On 12 September 2019 Mrs Inna Grabovsky (the Applicant) made an application to the Fair Work Commission (the Commission) under s.602 of the Fair Work Act 2009 (the Act) for the Commission to correct errors in a decision.

[2] The decision the subject of this application was given by me on 20 August 2014 (Decision). 1 It concerned the power of the Commission to arbitrate in relation to a dispute between the Applicant and her employer, United Protestant Association of NSW Ltd (UPA), about her workload.

[3] In that decision I determined that the Commission did not have the power to arbitrate in relation to this dispute because the relevant provision in the relevant enterprise agreement expressly stated that the Commission’s power was limited to conciliation of disputes of this nature.

[4] The Applicant appealed my decision. This appeal was not successful and the Decision was upheld. The Applicant now seeks to correct what she contends are errors in the Decision.

[5] The present application by the Applicant was accompanied by submissions dated 11 September 2019. The matter was allocated to my Chambers on 24 October 2019. The Respondent was given until 12 November 2019 to make any submission in relation to the application. The Respondent provided its submissions on 1 November 2019. The Applicant was given until 15 November 2019 to provide a reply to those submissions. This decision has been made on the basis of the submissions received from the Applicant and the Respondent, without a hearing.

[6] Section 602 of the Act states:

Section 602 – Correcting obvious errors etc. in relation to the FWC’s decisions

(1) The FWC may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of the FWC (other than an error, defect or irregularity in a modern award or national minimum wage order).

Note 1: If the FWC makes a decision to make an instrument, the FWC may correct etc. the instrument under this section (see subsection 598(2)).

Note 2: The FWC corrects modern awards and national minimum wage orders under sections 160 and 296.

(2) The FWC may correct or amend the error, defect or irregularity:

(a) on its own initiative; or

(b) on application.

[7] In RotoMetrics Australia, 2 a Full Bench of the Commission said:

[29] Section 602 is intended to be a statutory analogue of the “slip rule” used by superior courts to correct certain errors in orders. It must be applied with caution and only in circumstances in which the use of the “slip rule” is permissible:

•  “where there has been an unintentional omission in an Order or judgement of the Court;

•  where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings;

•  where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy; and

•  where the error is manifestly clear; where an ‘officious bystander would reply when asked if the amended was appropriate: “Of course”.”

[30] The need for caution in the use of s.602 of the Act is reinforced by s.603, which excludes from the substantive power of Fair Work Australia to vary or revoke a decision made by it under this Act “a decision under section 235 or Division 4, 7, 9 or 10 of Part 2-4 (which deal with enterprise agreements)”, which includes, in Division 4 of Part 2-4, a decision to approve an enterprise agreement and the matters a decision must note (including the coverage of an employee organisation in s.201(2).

[endnotes omitted]

[8] In Inna Grabovsky v United Protestant Association of NSW T/A UPA, 3 a Full Bench of the Commission said:

[15] The scope of the power to correct or amend a decision under s.602 is limited; it does not empower the Commission to reopen or reconsider the correctness of a decision made or to vary a decision in light of subsequent circumstances. It is intended to avoid injustice by permitting the correction of inadvertent mistakes. The limited nature of the power in s.602 may be contrasted with the broader power to vary or revoke a decision pursuant to s.603.

[9] The Applicant seeks extensive corrections to the Decision.

[10] The Applicant says in submissions filed on 12 September 2019 with this application and dated 11 September 2019:

“10. The FWC had ignored continuous complaints made by the Applicant about the legitimacy of proceeding due to misrepresentation of the UPA and on the 20 August 2014, Booth DP made Decision [2014] FWC 5634 that contains a number of obvious errors that are reversible errors.

11. The errors must be corrected to bring grounds, upon which the Decision has been made, in compliance with the facts (evidence) and the applicable laws.

12. Section 602 of the Act 2009 provides for correction of the obvious errors. The Applicant is using this legal avenue (sec. 602) to provide Booth DP, who is responsible for Decision [2014] FWC 5634 with the opportunity to correct those errors.

13. The obvious errors exposed by the Applicant in this application are objectively recognisable therefore no judicial (arbitrating) officer has discretional power to ignore them.

14. The errors are reversible and if a Member of the Commission responsible for Decision [2014] FWCFB 5634 wants to challenge any part of this Application, she must provide equally objectively recognisable proof that the evidence/facts or statute used by the Applicant is false, misleading or otherwise inapplicable.

15. Decision [2014] FWC 5634, in its current form, is a misleading and fraudulent document that is detrimental to the course of justice. This Application under sec. 602 of the Act 2009 is designed to correct the errors contained in the Decision.

16. This Application is also designed to prevent the use of Decision [2014] FWC 5634 in its current form as an “authority” in other matters by other members of the FWC because in its current form it is an instrument of crime.” 4

[11] The Applicant seeks to amend paragraphs 3, 4, 9, 12, 13, 21 and 23 of the Decision and seeks to delete paragraphs 14-20, 22, 25-27, 29-30 and 32 of the Decision.

[12] I have prepared a table comparing the contents of the Decision and the Applicant’s proposed corrections. It is attached as Appendix A to this decision.

[13] I have considered the Applicant’s proposed corrections one by one. I have applied s.602 of the Act and the guidance concerning this section of the Act contained in the decisions quoted at paragraphs [6]-[8] above.

[14] None of the paragraphs of the Decision that the Applicant seeks to correct were unintended or accidental inclusions or omissions. I would not have made any of the corrections sought if they had been proposed to me during the proceedings. This is not a situation where injustice will be done if I do not make the corrections sought.

[15] I decline the application and it is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR713672>

APPENDIX A

s.634 Comparison of decision of Booth DP in [2014] FWC 5634 with draft provided by the
Applicant, Mrs Grabovsky, in ADM2019/8

[2014] FWC 5634

Mrs Grabovksy

[1] Mrs Inna Grabovsky lodged an application pursuant to s.739 of the Fair Work Act (the Act) with the Fair Work Commission (“the Commission”) to deal with a dispute in accordance with a dispute settlement procedure in relation to her employment with United Protestant Association of NSW Ltd T/A UPA (“UPA”) on 5 March 2014. The dispute concerns Mrs Grabovsky’s classification, payment for undertaking higher duties, workload and alleged adverse action taken by UPA towards Mrs Grabovsky.

The matter came before me on 31 March and 28 April 2014 for conciliation and when conciliation failed to resolve the dispute, I listed the matter for directions on 30 June 2014.

[1]Mrs Inna Grabovsky lodged an application pursuant to s.739 of the Fair Work Act (the Act) with the Fair Work Commission (“the Commission”) to deal with a dispute in accordance with a dispute settlement procedure in relation to her employment with United Protestant Association of NSW Ltd T/A UPA (“UPA”) on 5 March 2014. The dispute concerns Mrs Grabovsky’s classification, payment for undertaking higher duties, workload and alleged adverse action taken by UPA towards Mrs Grabovsky.

The matter came before me on 31 March and 28 April 2014 for conciliation and when conciliation failed to resolve the dispute, I listed the matter for directions on 30 June 2014.

[2] Mrs Grabovsky was represented by her husband Mr Grabovsky. Mrs Grabovsky has not appeared before the Commission on any of these occasions. Mr Grabovsky submits that this is due to her illness. Mr Grabovsky has supplied the Commission with documents headed Power of Attorney dated 6 August 2013 and 7 July 2014 authorising her husband to represent her.

[2]Mrs Grabovsky was represented by her husband Mr Grabovsky. Mrs Grabovsky has not appeared before the Commission on any of these occasions. Mr Grabovsky submits that this is due to her illness. Mr Grabovsky has supplied the Commission with documents headed Power of Attorney dated 6 August 2013 and 7 July 2014 authorising her husband to represent her.

[3] UPA was represented, by permission pursuant to s.596 of the Act, by Jane McConville Employee Relations Specialist, performHR and Mr Stuart Laverton Regional Manager Sydney North and South, UPA.

[3]During the conciliation meetings on the 31 March and 28 April 2014 and on the date of the directional hearing on the 30 June 2014, where the jurisdictional objection had been made by the paid agent for the UPA (Ms. McConville), there was no evidence of actual or apparent authority for Ms. McConville to act for the UPA. Despite repeated and insistent requests made by the Applicant, neither the UPA nor the FWC did provide the Applicant with the duly executed Form 53- Notice of Representative Commencing to Act that supposed to be filed by the UPA in order to have a right to make submissions and represent the body corporate in a proceeding by a lawyer or a paid agent.

Ms. McConville submitted no grounds and provided no evidence that would address mandatory requirements stipulated in sec.596 of the Act and I granted permission for Ms. McConville to appear for the UPA because I assumed that Mr. Grabovsky, who represented the Applicant, is legally trained, albeit not in this country. I have no objectively recognisable evidence of Mr.

Grabovsky's legal training recognisable in Australia.

[4] UPA is a not for profit operator of residential aged care facilities.

Mrs Grabovsky is a part-time care service employee at a UPA facility, the Thomas and Rosetta Agst Aged Care Service Wahroonga, NSW. She is classified as Grade II and has a Certificate III in Care Support Services. She commenced on 30 March 2004 and when she completed her three month probationary period on 22 June 2004 she was employed for 75 hours per fortnight working 7am to 3pm each week day. Since 27 August 2013 she has been absent from work. The parties are in dispute about her entitlement to sick leave and workers compensation payments however that is not a matter that is before the Commission.

[4] UPA is a registered aged care service provider, and its business activities regulated and subsidised by the Commonwealth.

Mrs. Grabovsky's employment had commenced on 30 March 2004 including a three month probationary period. According to the documents, she has a Certificate III in Care Support Services and was employed as care service Grade II for 75 hours per fortnight working 7am to 3pm each week day at the UPA facility, the Thomas and Rosetta Agst Aged Care Service Wahroonga, NSW. Mrs Grabovsky disputes that she is a part-time employee claiming that she was directed to work over 40 hours per week that constitutes full-time employment. After her complaint about her employee's status, the management did take an adverse action and reduced her working week by one day.

Mrs. Grabovsky also disputes the Grade of her employment claiming that she was deceived by the UPA into belief that she is employed as a care service employee grade III when, in fact she was classified as Grade II. There are no documents provided to her or to the FWC that would indicate the Grade of her employment. Since 27 August 2013 she has been absent from work due to the injury received in her employment. She was taken from her workplace by the ambulance into Hornsby Hospital where she remained an in-patient. Currently, Mrs. Grabovsky is on a WorkCover Certificate with no ability to work.

[5] Mrs Grabovsky is covered by the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 (“the Agreement”).

[5] Mrs Grabovsky is covered by the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 (“the Agreement”).

[6] Mr Grabovsky has asked the Commission to arbitrate to resolve the dispute between Mrs Grabovsky and UPA in accordance with clause 42 Grievance and Dispute Resolution Procedures which reads as follows:

42. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURES

42.1 Unless otherwise stated the terms “party” or “parties” referred to in this clause means the employer and/or the employees, as the context requires.

42.2 This dispute resolution procedure will apply to disputes about:

(a) any matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee;

(b) threatened termination, with the exception that the arbitration provisions in subclause 42.6 do not apply unless the parties agree. Further, the parties rights are reserved during this process and the employer may exercise their right to terminate the employee in accordance with the agreement;

(c) matters in relation to the NES;

(d) matters arising under the agreement; and

(e) whether an employer had reasonable business grounds under subsection 65(5) of the Act - (requests for flexible working arrangements) or 76(4) of the Act - (requests for extending unpaid parental leave).

42.3 An employer or employee may appoint another person, organisation or association (e.g. Union or the Aged & Community Services Association of NSW & ACT Inc.) to accompany and/or represent them for the purposes of this clause.

42.4 In the event of a dispute the parties will initially attempt to resolve the matter at the workplace level, including, but not limited to:

(a) the employee and his or her supervisor discussing the matter; and

(b) if the matter is still not resolved the parties arranging further discussions involving more senior levels of management (as appropriate).

42.5 If a dispute is unable to be resolved at the workplace, in accordance with subclause 42.4, a party to the dispute may refer the matter to FWA or other appropriate statutory tribunal.

42.6 The parties agree that FWA shall have the power to do all such things as are necessary for the just resolution of the dispute including:

(a) mediation, conciliation and, with the exception of disputes arising under clause 33 – Workload Management, arbitration; and

(b) arbitration, for disputes arising under clause 33 – Workload management, only with the agreement of the parties.

42.7 While the dispute resolution procedure is being conducted, work must continue in accordance with this agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace that is safe and appropriate for the employee to perform.

[6] Mrs Grabovsky has asked the Commission to arbitrate to resolve the dispute between Mrs Grabovsky and UPA in accordance with clause 42 Grievance and Dispute Resolution Procedures which reads as follows:

42. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURES

42.1 Unless otherwise stated the terms "party" or " parties" refer red to in this clause means the employer and/or the employees, as the context requires.

42.2 This dispute resolution procedure will apply to disputes about:

(a) any matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee;

(b) threatened termination, with the exception that the arbitration provisions in subclause 42.6 do not apply unless the parties agree. Further, the parties rights are reserved during this process and the employer may exercise their right to terminate the employee in accordance with the agreement;

(c) matters in relation to the NES;

(d) matters arising under the agreement; and

(e) whether an employer had reasonable business grounds under subsection 65(5) of the Act - (requests for flexible working arrangements) or 76(4) of the Act - (requests for extending unpaid parental leave).

42.3 An employer or employee may appoint another person, organisation or association (e.g. Union or the Aged & Community Services Association of NSW & ACT Inc.) to accompany and/or represent them for the purposes of this clause.

42.4 In the event of a dispute the parties will initially attempt to resolve the matter at the workplace level, including, but not limited to:

(a) the employee and his or her supervisor discussing the matter; and

(b) if the matter is still not resolved the parties arranging further discussions involving more senior levels of management (as appropriate).

42.5 If a dispute is unable to be resolved at the workplace, in accordance with subclause 42.4, a party to the dispute may refer the matter to FWA or other appropriate statutory tribunal.

42.6 The parties agree that FWA shall have the power to do all such things as are necessary for the just resolution of the dispute including:

(a) mediation, conciliation and, with the exception of disputes arising under clause 33 – Workload Management, arbitration; and

(b) arbitration, for disputes arising under clause 33 – Workload management, only with the agreement of the parties.

42.7 While the dispute resolution procedure is being conducted, work must continue in accordance with this agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace that is safe and appropriate for the employee to perform.

[7] UPA objects to the exercise of the Commission’s powers on the grounds that the Agreement does not provide the Commission with power to arbitrate with respect to workloads other than by agreement between the parties.

[7] UPA objects to the exercise of the Commission’s powers on the grounds that the Agreement does not provide the Commission with power to arbitrate with respect to workloads other than by agreement between the parties.

[8] On 30 June 2014 I issued directions to the parties to lodge submissions in relation to this jurisdictional objection.

[8]On 30 June 2014 I issued directions to the parties to lodge submissions in relation to this jurisdictional objection.

[9] In correspondence dated 7 June 2014, Mr Grabovsky made submissions objecting to the representation of UPA by Ms Jane McConville. This correspondence was received by my Chambers on 8 July 2014 and I conclude that it should have been dated 7 July 2014. I have not considered this submission as I ruled on this matter on 30 June 2014 when both UPA and Mr Grabovsky were heard on the matter. Ms McConville was granted permission to appear pursuant to s.596 of the Act largely because her company provides outsourced human resource management services to UPA which has no in house capability and I considered that the matter would be dealt with more efficiently if I granted Ms McConville permission to appear. I did so in the knowledge that Mr Grabovsky is legally qualified, albeit not admitted as a solicitor in New South Wales, and therefore I considered that no unfairness would arise.

[9] Mrs. Grabovsky was complaining about the UPA's non-compliance with sec. 596 of the Fair Work Act 2009 and the FWC's unwillingness to enforce compliance with the procedure for legal representation by a lawyer/paid agent from the first meeting on the 31 March 2014. I have not considered the necessity to direct the UPA to produce duly executed form F53. In correspondence dated 7 June 2014, Mr Grabovsky made submissions objecting to the representation of UPA by Ms Jane McConville. This correspondence was received by my Chambers on 8 July 2014 and I conclude that it should have been dated 7 July 2014. I have not considered this submission as I ruled on this matter (gave permission to appear) on 30 June 2014 when both UPA and Mr Grabovsky were heard on the matter.

[10] This decision concerns the jurisdictional objection by UPA and is based on the submissions lodged by UPA on 14 July 2014, Mrs Grabovsky on 23 July 2014 and UPA in reply on 4 August 2014.

[10]This decision concerns the jurisdictional objection by UPA and is based on the submissions lodged by UPA on 14 July 2014, Mrs Grabovsky on 23 July 2014 and UPA in reply on 4 August 2014.

[11] In UPA’s submissions exception is taken to the exercise of the Commission’s jurisdiction in relation the dispute concerning alleged overwork due to understaffing. The objection is on the basis that the Agreement deals with those matters relating to workload management issues at clause 33 and provides that the arbitration of workload management issues may only occur by agreement of all parties. Likewise clause 42.6 (a) of the Agreement includes the limitation that Fair Work Australia shall arbitrate disputes arising under clause 33 only with the agreement of the parties. UPA indicate that they do not agree or consent to the arbitration of a dispute or disputes concerning workload management and consequently the Commission has no jurisdiction to arbitrate in relation to this dispute.

[11] In UPA’s submissions exception is taken to the exercise of the Commission’s jurisdiction in relation the dispute concerning alleged overwork due to understaffing. The objection is on the basis that the Agreement deals with those matters relating to workload management issues at clause 33 and provides that the arbitration of workload management issues may only occur by agreement of all parties. Likewise clause 42.6 (a) of the Agreement includes the limitation that Fair Work Australia shall arbitrate disputes arising under clause 33 only with the agreement of the parties. UPA indicate that they do not agree or consent to the arbitration of a dispute or disputes concerning workload management and consequently the Commission has no jurisdiction to arbitrate in relation to this dispute.

[12] Mrs Grabovsky opposes the jurisdictional objection on the grounds that clause 33 Workload Management of the Agreement has not been complied with by the UPA. Clause 33 reads as follows:

33. WORKLOAD MANAGEMENT

33.1 The parties to this agreement acknowledge that employees and management have a responsibility to maintain a balanced workload and recognise the adverse effects that excessive workloads may have on employee/s and the quality of resident/client care.

33.2 To ensure that employee concerns involving excessive workloads are effectively dealt with by Management the following procedures should be applied:

(a) In the first instance, employee/s should discuss the issue with their immediate supervisor and, where appropriate, explore solutions.

(b) If a solution cannot be identified and implemented, the matter should be referred to an appropriate senior manager for further discussion.

(c) If a solution still cannot be identified and implemented, the matter should be referred to the Facility Manager for further discussion.

(d) The outcome of the discussions at each level and any proposed solutions should be recorded in writing and fed back to the effected employees.

33.3 Workload management must be an agenda item at staff meetings on at least a quarterly basis. Items in relation to workloads must be recorded in the minutes of the staff meeting, as well as actions to be taken to resolve the workloads issue/s.

Resolution of workload issues should be based on the following criteria including but not limited to:

(a) Clinical assessment of residents’ needs;

(b) The demand of the environment such as facility layout;

(c) Statutory obligation, (including, but not limited to, workplace health and safety legislation;

(d) The requirements of nurse regulatory legislation;

(e) Reasonable workloads;

(f) Accreditation standards;

(g) Replacement of employees on leave; and

(h) Budgetary considerations.

33.4 If the issue is still unresolved, the employee/s may advance the matter through Clause 42 - Grievance and Disputes Resolution Procedures. Arbitration of workload management issues may only occur by agreement of all parties.

[12]Mrs. Grabovsky opposes the jurisdictional objection on the grounds that clauses 33.4 and 42.6 of the Agreement are unlawful and unconstitutional because they render ineffective provisions of statute, namely sec. 186(6) of Fair Work Act 2009 and making impossible determination of the employer's (UPA's) compliance with the National Employment Standards.

At the heart of Mrs. Grabovsky's argument against the jurisdictional objection made by the UPA is the notion that no action taken or document executed outside the Legislative Arm of the Government may render ineffective provision of statute.

Mrs. Grabovsky claims that no enterprise agreement can override statute and that the UPA's jurisdictional objection is misconceived because it is based upon the wrong principle: clauses 33 and 42 are proclaims superiority of enterprise agreement over the Fair Work Act 2009.

Clauses 33.4 and 42.6 of the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 state:

33.4 lf the issue is still unresolved, the employee/s may advance the matter through Clause 42 - Grievance and Disputes Resolution Procedures. Arbitration of workload management issues may only occur by agreement of all parties.

…

42.6 The parties agree that FWA shall have the power to do all such things as are necessary for the just resolution of the dispute including:

(a) mediation, conciliation and, with the exception of disputes arising under clause 33 -

Workload Management, arbitration; and

(b) arbitration, for disputes arising under clause 33 - Workload management, only with the agreement of the parties* .

*My emphasis

Clauses 33.4 and 42.6 contradict sec. 186(6) of the Fair Work Act 2009 that states:

Requirement for a term about settling disputes

(6) The FWC must be satisfied that the agreement includes a term:

(a) that provides a procedure that requires or allows the FWC, or another person who is independent of the employers, employees or employee organisations covered by the agreement, to settle disputes:

(i) about any matters arising under the agreement; and

(ii)in relation to the National Employment Standards*; and

(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure.

* My emphasis

Mrs. Grabovsky proposed that no legally viable agreement must include unlawful/illegal terms and no legally viable jurisdictional objection may be based on violation of statute.

[13] Mrs Grabovsky also says, in effect, that due to the operation of s.739 of the Act, clause 33 of the Agreement is rendered nugatory and that s.186 of the Act means that to be approved by the Commission an enterprise agreement must contain a term that provides a dispute resolution procedure that provides for the settlement of disputes about any matter arising under the Agreement. She further submits that:

“The issue of Workload management (excessive workload) greatly effects the health and wellbeing of the employees. In this particular case the excessive workload already caused the serious illness of the Worker that the Respondent has failed to report to the WorkCover authority as prescribed by the Work Health and Safety Act 2011.”

[13] Mrs. Grabovsky also says that the UPA directed her to execute work that is supposed to be executed by two or more workers, placing a severe workload upon her and that the UPA directed her to execute work for which she had no prescribed qualifications.

She says that the unlawful conduct of the UPA is in breach of sec. 19, 31 and 44 of the Work Health and Safety Act 2011, which state:

Sec.19 - Primary duty of care of the Work Health and Safety Act 2011 states:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from ·work carried out as part of the conduct of the business or undertaking., etc., etc.

Sec. 31 - Reckless conduct-Category 1

(1) A person commits a Category 1 offence if:

(a) the person has a health and safety duty, and

(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and

(c) the person is reckless as to the risk to an individual of death or serious injury or illness.

Sec. 44 - Requirements for prescribed qualifications or experience

…

(2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if:

(a) the regulations require the work, or class of work, to be carried out by, or under the supervision of a person who has prescribed qualifications or experience, and

(b) the worker does not have the prescribed qualifications or experience or the work is not carried out under the supervision of a person who has the prescribed qualifications or experience.

Clauses 33.4 and 42.6 of the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 do prevent due process of determination of reasonability of the workload and the employers' (UPA) compliance with the health and safety requirements. Such prevention of due process in an appropriate tribunal (the FWC) breaches sec. 272 of the Work Health and Safety Act 2011, the Act, which is superior to the Fair Work Act 2009, let alone to an enterprise agreement(s).

Mrs. Grabovsky also submits that inability of determination of the amount/severity of the workload imposed upon the Applicant (or any other worker) make it impossible to determine the UPA's compliance with the National Employment Standards (e.g. maximum weekly hours, annual leave, personal leave, long service leave, etc.) and the fact that clauses 33.4 and 42.6 of the UPA's enterprise agreement are also in breach with the part of the Fair work Act 2009 concerning compliance with the NES.

[14] In addressing the parties’ submissions it is necessary for me to interpret the Agreement.

[14]deleted

[15] The principals of interpretation are well-known and oft stated.

[15] deleted

[16] In Amcor Limited v CFMEU (2005) 222 CLR 241, the interpretative process is described by Gleeson CJ and McHugh J (at 246[2]) as:

“The resolution of the issue turns upon the language of particular grammar, understood in the light of its industrial context and purpose….”

[16]deleted

[17] And by Kirby J (at 262[67]) as:

“Interpretation is always a text based activity.”

[17] deleted

[18] This approach is reflective of the oft-quoted statement of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184:

“But the task remains one of interpreting a document produced by another or others. A Court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well understood words are in general to be accorded their ordinary or usual meaning.”

[18]deleted

[19] A further step in the process is to attempt to identify what the common intention of the parties is, as that intention is expressed in the terms of the Agreement.

[19]deleted

[20] In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, the High Court, when dealing with the interpretation of a commercial contract, stated (at 179[40]):-

“It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”

[20]deleted

[21] I consider that it is patently clear from the wording of clause 33 and clause 42 that the Agreement does not provide for the Commission to arbitrate in relation to a dispute about workloads other than with the consent of both parties. Clause 33 makes this clear when it states:

33.4 If the issue is still unresolved, the employee/s may advance the matter through Clause 42 - Grievance and Disputes Resolution Procedures. Arbitration of workload management issues may only occur by agreement of all parties. (my emphasis)

[21] Despite the fact that clauses 33.4 and 42.6 are in breach with sec. 186(6) of the Fair Work Act 2009, I consider that it is patently clear from the wording of those clauses that the Agreement does not provide for the Commission to arbitrate in relation to a dispute about workloads other than with the consent of both parties.

[22] And clause 42.6 is also unambiguous. It states:

42.6 The parties agree that FWA shall have the power to do all such things as are necessary for the just resolution of the dispute including:

(a) mediation, conciliation and, with the exception of disputes arising under clause 33 – Workload Management, arbitration; (my emphasis) and

(b) arbitration, for disputes arising under clause 33 – Workload management, only with the agreement of the parties. (my emphasis)

[22]deleted

[23] The submissions made on behalf of Mrs Grabovsky concerning the effect of s.739 and s.185 of the Act are, as submitted by UPA, misconceived.

[23]The submissions made on behalf of Mrs Grabovsky concerning clauses of the Enterprise Agreement that render ineffective sections of the Act are misconceived.

[24] In any matter before the Commission the Tribunal Member is required to consider, implicitly or explicitly, whether they have the jurisdiction to deal with the matter. The source of the Commission’s jurisdiction is the Act.

[24] In any matter before the Commission the Tribunal Member is required to consider, implicitly or explicitly, whether they have the jurisdiction to deal with the matter. The source of the Commission's jurisdiction is the Act.

[25] A Full Bench of FWA, as it then was, in the case Woolworths Ltd trading as Produce and Recycling Distribution Centre (the Woolworths case) provided a cogent explanation of the source of the Commission’s jurisdiction in relation to dispute resolution procedures. This decision answers both points of Mrs Grabovsky’s submission. The Full Bench was addressing whether an enterprise agreement could be approved when the dispute resolution procedure contained in the agreement required the parties’ agreement to arbitrate a dispute on a case by case basis and they found that it could.

[25] deleted

[26] Their outline and comments on the relevant sections of the Act provide guidance in this matter.

[26] deleted

[27] At paragraphs 17 - 23 they say:

“[17] We turn first to some important elements of the statutory scheme which provide the context in which s.186(6) must be interpreted. Section 595 sets out Fair Work Australia’s power to deal with disputes generally and ss.738 and 739 set out Fair Work Australia’s powers to deal with dispute resolution terms in, relevantly, enterprise agreements.

[18] Section 595 of the Fair Work Act reads:

“595 FWA’s power to deal with disputes

(1) FWA may deal with a dispute only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.

(2) FWA 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.

(3) FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expressly authorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to FWA arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision.

Example: FWA could direct a person to attend a conference under section 592.

(5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.”

[19] The section is concerned with the powers the tribunal may exercise in dealing with disputes. Section 595(1) provides that Fair Work Australia may only deal with a dispute if it is expressly authorised to do so. Section 595(2) provides that the tribunal may deal with a dispute by mediation, conciliation, making a recommendation or expressing an opinion subject to the qualification that it may not deal with the dispute by arbitration. Section 595(3) permits the tribunal to arbitrate if it is expressly authorised to do so. Section 595(4) operates to confer procedural powers. It seems to us clear enough from the text of these provisions that the legislature intended that Fair Work Australia can deploy voluntary methods of dispute resolution without the consent of the parties to the dispute, provided the dispute is one with which it is authorised to deal, but can only arbitrate if it has been specifically empowered to do so.

[20] Sections 738 and 739 are also directly relevant. They provide:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by FWA

(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.

(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65 (5) or 76 (4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.

Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.

Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) FWA may deal with a dispute only on application by a party to the dispute.” [21] Section 738 specifies the type of dispute resolution terms to which the division applies. Section 738(b) makes it clear that the division applies in relation to a dispute resolution procedure of the kind described in s.186(6). Section 739(1) provides that the section applies if a term in s.738 requires or allows Fair Work Australia to deal with a dispute. Section 739(2) is not relevant. Section 739(3) provides that a dispute resolution term can limit the powers available to Fair Work Australia to settle a dispute. Section 739(4) sets out the circumstances in which Fair Work Australia may arbitrate a dispute, providing that if the parties have agreed that Fair Work Australia may arbitrate, Fair Work Australia may do so. It appears to us that s.739(4) strongly implies the negative stipulation that if the parties have not agreed, Fair Work Australia has no power to arbitrate.

[22] The operation of these provisions in relation to dispute resolution terms in enterprise agreements is specifically referred to in the Explanatory Memorandum to the Fair Work Bill 2008. We refer first to paragraph 2290. That paragraph deals with the relationship between s.595 and s.739. It reads:

“2290. Subclause 595(4) ensures that, when FWA is dealing with any of these disputes, FWA can exercise any of its powers under Subdivision B. For example, FWA could direct a person to attend a conference under clause 592. However, there is an exception for Part 6-2 disputes. The procedure in the modern award, enterprise agreement, workplace determination or contract of employment can limit the powers that FWA can exercise in dealing with the dispute (see subclause 739(3)).”

[23] This paragraph repeats the direct indication in s.739(3) that a dispute resolution term might limit the powers otherwise available to Fair Work Australia. It appears from the reference to s.595(4) that the paragraph is primarily referring to the procedural powers conferred by Subdivision B rather than the power to arbitrate Relevantly, (sic) however, the concluding sentence of the paragraph supports the implication in the words of s.739(4) that in the absence of agreement Fair Work Australia has no power to arbitrate. If the legislature has specifically provided for limits upon the use of arbitral power pursuant to dispute resolution procedures, it is difficult to see how the conclusion could be sustained that “arbitration is a prerequisite to the approval of an agreement.”

[28] This case is authority for the proposition that to be approved, although an enterprise agreement must contain a procedure to settle disputes (s.186), the terms of the procedure are defined by the agreement. In exercising the power of arbitration s.739 of the Act empowers the Commission to act only in accordance with the terms of the procedure.

[28]deleted

[29] The decision of the Full Bench of the Commission in Warkworth Mining Limited v Construction, Forestry, Mining and Energy Union is also authority for this proposition.

[29] deleted

[30] In this decision the Full Bench at paragraphs 19 and 23 said:

“[19] In our opinion the starting point for Commissioner Wilks should have been a consideration of the terms of the dispute settlement procedure and a decision about what it “empowered” the Commission to do. In this consideration one does not commence with a presumption that the Commission will have been empowered to undertake any particular role, be it conciliation and/or arbitration. The question is what the parties to the agreement have decided the role of the Commission will be, which role ideally will have made clear in the words used in the relevant clause.”

“[23] The appellant submitted the Commissioner should have found that whatever may have been the agreed role for the Commission, it was not arbitration. It submits that was the only enquiry that needed to have been undertaken and only the words used in clause 16 were relevant to that enquiry. It is of course appropriate when construing a provision in an agreement to do so together with a consideration of the other provisions of the agreement and the structure of the agreement. This approach is referred to as construing a particular clause in the context of the agreement as a whole. It was permissible for the Commissioner, when interpreting the provisions of clause 16, to consider the agreement as a whole.....”

These decisions of the Commission have made it clear that the Commission may only exercise the powers given to it by the parties to the agreement and that an enterprise agreement can be approved by the Commission notwithstanding the agreement requires consent for the Commission to settle some or all matters by arbitration. The submissions made on behalf of Mrs Grabovsky’s are at odds with both of these propositions and accordingly must fail.

[30]deleted

[31] UPA’s jurisdictional objection to the Commission arbitrating in respect to workloads is upheld.

[31] UPA's jurisdictional objection to the Commission arbitrating in respect to workloads is upheld.

[32] UPA do not object, and I am satisfied, that clause 42 of the Agreement provides for arbitration in respect to the other matters raised by Mrs Grabovsky, notwithstanding that the remedies sought may be beyond power. This is a matter to be addressed in the hearing of the issues. The caveat on this conclusion is that depending on what Mrs Grabovsky asserts in relation to adverse action, it may be that a more appropriate cause of action is that found in s.372 of the Act, however I will comment upon that once I hear the submissions of the parties.

[32] deleted

[33] I will now list the balance of the dispute for arbitration and issue directions for submissions, witness statements and any other material upon which the parties seek to rely to be filed with the Commission and served on the parties.

[33] I will now list the balance of the dispute for arbitration and issue directions for submissions, witness statements and any other material upon which the parties seek to rely to be filed with the Commission and served on the parties.

 1   [2014] FWC 5634.

 2   [2011] FWAFB 7214.

 3   [2018] FWCFB 5891.

 4   Applicant’s submissions of 11 September 2019, filed on 12 September 2019.