Health Services Union Tasmania No 1 Branch v Liviende Inc

[2013] FWC 4435

[2013] FWC 4435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.608— Referring questions of law to the Federal Court

Health Services Union Tasmania No 1 Branch
v
Liviende Inc.
(C2012/5869)

JUSTICE ROSS, PRESIDENT MELBOURNE, 5 JULY 2013

Referral of a question of law to the Federal Court- s.608 Fair Work Act 2009 (Cth) - application refused - unresolved factual issues - delay.

[1] The matter before me is an application by Liviende Inc. for the referral of a question of law to the Federal Court of Australia pursuant to s.608 of the Fair Work Act 2009 (Cth) (the Act).

[2] The question sought to be referred concerns the proper interpretation of s.206 of the Act and it is expressed as follows in Liviende Inc’s submission in reply:

“Do you determine under s.206 of the Fair Work Act 2009 the base rate of pay that would be payable to the employee under the modern award if the modern award applied to the employee by:

(a) identifying and comparing the classification descriptor for the employee under the enterprise agreement with the most equivalent classification descriptor and the base rate of pay for that classification in the modern award; or

(b) ignore the enterprise agreement and determine the appropriate classification and the base rate of pay for that classification in the modern award.”

[3] Section 206 of the Act is in the following terms:

“206 Base rate of pay under an enterprise agreement must not be less than the modern award rate or the national minimum wage order rate etc.

If an employee is covered by a modern award that is in operation

(1) If:

(a) an enterprise agreement applies to an employee; and

(b) a modern award that is in operation covers the employee;

the base rate of pay payable to the employee under the agreement (the agreement rate) must not be less than the base rate of pay that would be payable to the employee under the modern award (the award rate) if the modern award applied to the employee.

(2) If the agreement rate is less than the award rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the award rate.

If an employer is required to pay an employee the national minimum wage etc.

(3) If:

(a) an enterprise agreement applies to an employee; and

(b) the employee is not covered by a modern award that is in operation; and

(c) a national minimum wage order would, but for the agreement applying to the employee, require the employee’s employer to pay the employee a base rate of pay (the employee’s order rate) that at least equals the national minimum wage, or a special national minimum wage, set by the order;

the base rate of pay payable to the employee under the enterprise agreement (the agreement rate) must not be less than the employee’s order rate.

(4) If the agreement rate is less than the employee’s order rate, the agreement has effect in relation to the employee as if the agreement rate were equal to the employee’s order rate.”

[4] The question posed by Liviende Inc. arises in the context of a dispute between Liviende Inc. and the Health Services Union Tasmania No. 1 Branch (HSU) as to the appropriate classification rate for ‘Residential Support Officers’ under the Tasmanian Disability Services Industry Multi-Employer Enterprise Agreement 2011. The dispute is listed for hearing on 8 July 2013 before Commissioner Johns.

[5] The resolution of the dispute will involve a consideration of the proper interpretation of s.206 of the Act.

[6] Liviende Inc. contends that s.206 requires an examination of the actual duties and responsibilities carried out by the worker in question to find the appropriate classification and level under the relevant modern award, which will then identify the applicable base rate for comparison. This is to be done without any reference to the agreement. The HSU contend that you must look at the applicable classification descriptors and level under the agreement in its entirety (including duties and responsibilities that are not actually carried out by the worker in question), and then find the classification and level under the relevant modern award with similar wording that is the best fit, which will then identify the applicable base rate for comparison. The key difference between the two approaches is that one is completed with reference to the agreement descriptors that apply to the worker, whereas the other is done as if the agreement does not exist.

[7] The applicant advances the following points in support of the referral:

(i) this issue has not been previously determined by the Commission and the Member hearing the matter will not have the benefit of any guidance as to how the assessment under s.206 should be carried out;

(ii) a referral will save the parties time and expense by avoiding multiple appeals to have the issue ultimately determined by the Full Federal Court; and

(iii) there are a number of employer groups interested in the outcome of this matter and on that basis it is submitted that there is a significant public interest in having the matter determined by the Full Federal Court.

[8] The HSU opposes the application. It is submitted that the request for referral discloses no question of law and that the referral would introduce further delay in the resolution of the dispute.

[9] It is clear that s.608 confers a 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. That discretion should 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 Tribunal 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.”

[10] In my view the discretion conferred by s.608 should, where possible and appropriate, be exercised in such a way as to avoid undue delay in the determination of matters before the Commission. I note that such an approach is entirely consistent with the approach taken by a number of a Full Benches in relation to the legislative antecedents to s.608. 1

[11] Two particular matters have led me to refuse the application for referral.

[12] The first consideration is the factual substratum relating to the determination of the question sought to be referred. On the material before me I am not persuaded that there are no outstanding evidentiary or factual matters which would inhibit the efficient determination of the question of law. It seems to me that the resolution of factual considerations relating to the actual duties and responsibilities of the employees in question may well be relevant to the determination of the question to be referred. It is appropriate that such factual matters be resolved before the determination of the question of law posed by the applicant.

[13] The second consideration which has led me to refuse to grant the referral is the delay which would result from the referral. This dispute has been before the Commission since November 2012 and is to be heard on Monday 8 July 2013. It is only on the eve of the matter being arbitrated that the application for a referral has been made. I do not accept Liviende Inc’s submission that substantial delay is unlikely. It is relevant to observe that the next Full Court sittings in Tasmania are scheduled for November 2013. It is highly unlikely that the dispute would be resolved more quickly if it was referred, as opposed to being determined, initially, by a Member. The parties may then consider their appeal options and ultimately have the matter determined by the court in a subsequent prerogative relief application. It is also important to bear in mind that the referral would not necessarily dispose of the dispute. If the approach advocated by Liviende Inc. was accepted by the Court, the Commission would still be required to find the relevant facts and apply the construction determined by the Court. Any decision by the Commission in that regard may then be the subject of a subsequent appeal.

[14] The Commission regularly interprets and applies sections of the Act and the terms of instruments relating to job classifications in many and varied circumstances and it is not appropriate to elevate such a dispute to a Full Court of the Federal Court. In my view the most expeditious and appropriate course is to refuse the referral and have the matter heard and determined by the Commission. No party is prejudiced by such a course. The hearing of the matter before Commissioner Johns will enable any contested issues of fact to be resolved which will provide a more appropriate foundation for the determination of any relevant legal questions.

[15] The application is refused.

PRESIDENT

Written submissions:

Liviende Inc., 2 July 2013 and 4 July 2013

Health Services Union Tasmania No. 1 Branch, 4 July 2013.

 1   The Hoyts Corporation Pty Ltd and Australian Theatrical and Amusement Employees Association, Print K4341; Re Finnemores Pty Ltd, Print M5301; Bulga Coal Management Pty Ltd v CFMEU, Print PR924444 8 November 2002 per Marsh SDP, Cartwright SDP and Hoffman C.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR538623>