Health Services Union v Hobart District Nursing Service Inc
[2018] FWCFB 6881
•19 NOVEMBER 2018
| [2018] FWCFB 6881 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Health Services Union
v
Hobart District Nursing Service Inc
(C2018/4916)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 19 NOVEMBER 2018 |
Appeal against decision [[2018] FWC 4818] of Commissioner McKinnon on 17 August 2018 in matter number AG2017/6670 – agreement approval application discontinued – public interest not enlivened – permission to appeal refused.
Introduction
The Health Services Union (HSU) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (FW Act), for which permission to appeal is required, against a decision issued by Commissioner McKinnon on 17 August 2018[1] (Decision). The Commissioner issued the Decision as a preliminary step in assessing an application lodged by the Hobart District Nursing Service Inc (HDNS) to approve a single enterprise agreement known as the Hobart District Nursing Service Inc Non-nursing Agreement 2017 (Agreement).
In order to approve an enterprise agreement the Fair Work Commission (FWC) must be satisfied of a number of matters including that the agreement passes the better off overall test (BOOT) set out in s.193 of the FW Act. The BOOT requires a comparison of the terms of the agreement and a relevant modern award for the purpose of assessing whether, at test time, each award covered employee and each prospective award covered employee, for the agreement would be better off over all if the agreement applied to the employee than if the relevant modern award applied to the employee. An important step in that process is the identification of the modern award or awards that cover an employee or would cover a prospective employee, in relation to work that an employee is to, or would, perform under the agreement.
The Commissioner determined that the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award) was the relevant modern award for the purposes of the BOOT in respect of employees and prospective employees in the Agreement’s Administration and Clerical Streams at levels 6-8, who were not health professionals. The Commissioner also determined that the Health Professions and Support Services Award 2010 (Health Award) was the relevant modern award for the purposes of the BOOT for all other employees covered and prospective employees who would be covered by the Agreement.
Shortly after the Decision was issued, the HSU raised with the Commissioner concerns that the Agreement had not been genuinely agreed to by the relevant employees because the terms of Agreement and their effect had been explained to employees on the basis that the underpinning or relevant modern award was the SCHADS Award. The HSU also identified various ways in which it contended that the Agreement did not pass the BOOT if the Health Award was the relevant modern award for the purposes of the BOOT.[2]
On 4 September 2018, the HDNS informed the FWC by email that it was withdrawing its application for the Agreement to be approved.[3]
Section 588 of the FW Act provides that a person who has applied to the FWC may discontinue the application in accordance with the procedural rules whether or not the matter has been settled. Rule 10 of the Fair Work Commission Rules 2013 (Cth) provides that an application may be discontinued by the Applicant advising the FWC by email that the Applicant wishes to discontinue the application. FWC records indicate that the file for application AG2017/6670 has been closed.
Notwithstanding that the application for the approval of the Agreement has been discontinued, the HSU appeal the Decision on the grounds that the withdrawal of application to approve the Agreement does not resolve the question of award coverage. According to the HSU if the Decision is upheld the parties will recommence bargaining and any consequential agreement would be on very different terms than that which would result if the Decision is quashed.[4]
Grounds of Appeal
The HSU assert that the relevant modern award for all employees covered by the Agreement is the SCHADS Award and that the Commissioner erred in finding otherwise.[5]
The HSU assert that this occurred because if correctly construed, the Health Award requires both the employer and the employee to be engaged in the health industry and the substantial character of the work proposed to be performed by employees engaged by HDNS under the Agreement is in the home care industry not the health industry.[6]
The HSU also assert that the Commissioner fell into error by failing to have regard to the principal purpose for which the employees were proposed to be engaged by HDNS in the support worker streams under the Agreement. The HSU submit that the principal purpose for which these employees were to be engaged was providing home care holistically, rather than working as a gardener, cleaner, housekeeper etc. per se, as contemplated by the Health Award.[7]
The HSU also assert that there was insufficient evidence for the Commissioner to conclude that employees proposed to be engaged by HDNS in the Clerical and Administrative Stream under the Agreement were working in the health industry.[8]
Permission to appeal principles and application
An appeal under s.604 of the Act is an appeal by way of rehearing and the FWC’s powers on appeal are only exercisable if there is error on the part of the primary decision maker.[9] There is no right to appeal and an appeal may only be made with the permission of the FWC.
Subsection 604(2) requires the FWC to grant permission to appeal if satisfied that it is ‘in the public interest to do so.’ The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.[10] The public interest is not satisfied simply by the identification of error,[11] or a preference for a different result.[12]
Other than the special cases in s.604(2) of the FW Act, the grounds (apart from in the public interest) for granting permission to appeal are not specified. Considerations which have traditionally been adopted in granting leave and which would therefore usually be treated as justifying the grant of permission to appeal, include that the decision is attended with sufficient doubt to warrant its reconsideration and that substantial injustice may result if leave is refused.[13] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[14] However, the fact that a particular Member of the FWC made an error at first instance is not necessarily a sufficient basis for the granting of permission to appeal.[15]
In GlaxoSmithKline Australia Pty Ltd v Makin[16] a Full Bench of Fair Work Australia identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issue of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters...”[17]
The HSU submit that it is in the public interest to grant permission to appeal because the appeal raises for consideration the proper approach to determining the relevant modern award for assessing whether an agreement passes the BOOT and that this is a matter of interest to the general community who are concerned with ensuring agreements do not undermine minimum standards in an industry as set out in the relevant modern award.[18]
We are not persuaded that the appeal engages the public interest. The determination as to which modern award(s) is the relevant award(s) for the purposes of the BOOT requires an examination of the coverage terms of the modern award(s) under consideration by reference to the coverage (and related) terms of the agreement the subject of an approval application. That is an exercise of construing industrial instruments. The principles attaching to that exercise are well settled. Moreover, the Commissioner’s Decision turned on the nature of the work the Agreement contemplated the employees covered by would perform. This has no general application or consequence for anyone other than those directly interested in the Agreement.
In addition, the approval application has been discontinued. Thus, even if the Commissioner erred, there is no injustice to the employees or to the parties to this appeal. If a subsequent agreement is made the scope of the work to be performed by the employees proposed to be covered by the agreement may not necessarily be the same as that contemplated by the Agreement. The question as to which modern award or awards will be relevant for the purposes of conducting the BOOT will need to be assessed at that time by reference to the precise terms of the subsequent agreement. There is therefore no utility in the appeal. It is of academic interest only.
An appeal is not a vehicle to obtain that which, in essence, would be an advisory opinion from a Full Bench on a matter which, in a practical sense, is not in contest. Moreover in the course of bargaining for any subsequent agreement, it is open to the parties to seek to resolve any disputes over relevant modern award coverage through the mechanisms available, inter alia, under s.240 of the FW Act.
Permission to appeal is therefore refused.
DEPUTY PRESIDENT
Appearances:
Mr C Massy of counsel for the Appellant.
Ms S Masters of Edge Legal for the Respondent.
Hearing details:
2018.
Sydney and Hobart (video hearing):
October 18.
<PR702158>
[1] Hobart District Nursing Service Inc [2018] FWC 4818.
[2] Exhibit 1 at [14].
[3] Ibid at [17].
[4] Ibid at [22]–[23].
[5] HSU Outline of Submissions at [32].
[6] Ibid at [13]–[23].
[7] Ibid at [24]–[31].
[8] Ibid at [33]–[36].
[9] This is so because on appeal the FWC has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
[10] O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ: applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Alllied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44]–[46].
[11] GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343, 197 IR 266 at [24]–[27].
[12] Ibid, Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/ Warkworth [2010] FWAFB 10089 at [28], affirmed on judicial review; Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 178; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].
[13] See also CFMEU v AIRC (1998) 89 FCR 200 at 220; and Wan v AIRC (2001) 116 FCR 481 at [26].
[14] Wan v AIRC (2001) 116 FCR 481 at [30].
[15] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office[2014] FWCFB 1663, 241 IR 177 at [28].
[16] [2010] FWAFB 5343, 197 IR 266.
[17] Ibid at [27].
[18] HSU Outline of Submissions at [40].
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