Health Services Union-Victoria No. 1 Branch, Diana Asmar and Nick Katsis

[2015] FWC 5155

[2015] FWC 5155

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Health Services Union-Victoria No. 1 Branch, Diana Asmar and Nick Katsis
(C2015/4810)

VICE PRESIDENT HATCHER SYDNEY, 29 JULY 2015

Appeal against decision [[2015] FWC 3359] of Vice President Watson at Melbourne on 26 June 2015 in matter number RE2013/426 and others – application under s.606 of the Fair Work Act 2009 for a stay order.

[1] On 26 June 2015, Vice President Watson issued a decision 1 (Decision) in which, relevantly, he found that two officials of the Victoria No. 1 Branch of the Health Services Union (HSU), Ms Diana Asmar and Mr Nick Katsis2, had failed to complete training in respect of the rights and responsibilities of entry permit holders, had made false declarations in applications for entry permits that they had completed such training, and should accordingly have their entry permits revoked. On 29 June 2015 Vice President Watson issued an order3 (Order) which, pursuant to s.603 of the Fair Work Act 2009 (FW Act), revoked the entry permits held by Ms Asmar and Mr Katsis effective from the date of the Order. On 17 July 2015 the HSU lodged a notice of appeal in which it sought permission to appeal and appealed the Decision and Order. The notice of appeal also sought a stay of the Decision and Order pending the hearing and determination of the HSU’s appeal. This decision is concerned with the application for a stay order.

[2] At the outset of the hearing of the stay application, counsel appearing for the HSU also appeared for Ms Asmar and Mr Katsis, and sought leave to amend the notice of appeal to add them as appellants. The leave sought was granted, and accordingly Ms Asmar and Mr Katsis will be treated as additional appellants for the purpose of this decision.

[3] The principles applied to the determination of stay applications in this jurisdiction are those stated in the decision of Edghill v Kellow-Falkiner Motors Pty Ltd 4 as follows:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[4] The required assessment of an appeal’s prospects of success for the purposes of determining a stay application is necessarily of a preliminary nature only, since the Commission will not have had the benefit of hearing the appellant’s full argument and may not have had the opportunity to comprehensively peruse the case materials. 5 In this matter there is the added difficulty of there being no respondent, so that assessment of the appeal’s prospects of success must be made without the benefit of any argument from a contradictor.

[5] The appellants’ grounds of appeal allege three significant errors of fact and five errors of law in the Decision. These grounds of appeal were expanded upon in the appellants’ written and oral submissions. The notice of appeal contends that permission to appeal should be granted in the public interest because it raised an issue of general importance, namely whether it was permissible for findings made by the Royal Commission into Trade Union Governance and Corruption to be taken into account in the Decision, and also because the Decision was attended with sufficient doubt, the Decision involved an excess of jurisdiction, and significant injustice would result if permission to appeal was not granted and the revocation of the entry permits and the finding of false declarations was not corrected.

[6] I am not currently persuaded on the basis of the limited submissions to date that the appellants’ grounds of appeal challenging the findings in the Decision that Ms Asmar and Mr Katsis failed to complete training in respect of the rights and responsibilities of entry permit holders and made false declarations about this in applications for entry permits have significant prospects of success. However I have a different view concerning grounds 6 and 7 of the appeal notice, which as elaborated in written and oral submissions involved the contention that Vice President Watson, in deciding to revoke the entry permits of Ms Asmar and Mr Katsis, failed to properly exercise his statutory task and asked himself the wrong question by not considering whether Ms Asmar and Mr Katsis were fit and proper persons to hold entry permits in accordance with the requirements of ss.512 and 513 of the FW Act. Paragraph [269] of the Decision arguably discloses that the entry permits of Ms Asmar and Mr Katsis were revoked on the basis of the findings that they had made false declarations and failed to complete the necessary training, and not on the basis that they were not fit and proper persons to hold entry permits taking into account the matters identified in s.513(1). I consider the proposition that the exercise of the revocation power required a conclusion that Ms Asmar and Mr Katsis were not fit and proper persons to hold entry permits to be arguable and to have reasonable prospects of success. I also consider that it is one in relation to which there would be reasonable prospects of permission to appeal being granted.

[7] That conclusion makes it necessary to consider whether the balance of convenience favours the grant of a stay. The appellant relied upon the following matters in this connection:

• The possession of entry permits are essential to the ability of Ms Asmar and Mr Katsis to attend workplaces, including public and private hospitals, nursing homes, community centres and pathology centres, in order to meet and communicate with workers, resolve disputes and negotiate with management.



• Ms Asmar and Mr Katsis had previously used their entry permits on a regular basis, and would be unable to perform their jobs if they did not have entry permits.



• There was no evidence or suggestion that, during the two year period in which they had held their entry permits, Ms Asmar and Mr Katsis had ever misused their entry permits or failed to comply with the relevant requirements of the FW Act.

[8] It is approximately four weeks since the Order took effect. Ms Asmar and Mr Katsis gave evidence of their experience of working without entry permits over that period. It does not appear that either of them has actually been unable to enter any workplace they have wished to access because of a lack of an entry permit. Ms Asmar said that because she no longer holds an entry permit, she has generally not tried to access workplaces in anticipation that entry would be refused. She said that this had inhibited her in the conduct of her usual duties, particularly in circumstances where enterprise bargaining was proceeding in public sector workplaces. Mr Katsis said that he had been able to access workplaces with the consent of employers, but that the task of negotiating consent had been time consuming. He also said that the lack of an entry permit affected his capacity to perform one of his main duties, namely to mentor and to monitor and appraise the performance of other organisers.

[9] Reference was made in the evidence to a bulletin issued by the Victorian Hospitals’ Industrial Association (VHIA) concerning the revocation of Ms Asmar’s and Mr Katsis’s entry permits. I understood it to be suggested that the bulletin had encouraged employers to refuse entry to Ms Asmar and Mr Katsis because their entry permits had been revoked. I requested that a copy of this bulletin be reproduced. I was subsequently provided with copies of two bulletins issued by the VHIA. The first, dated 20 February 2015, concerned the earlier consensual revocation of the entry permits of three other HSU officials in relation to whom it had likewise been alleged that they had not undertaken the requisite training and had then made false declarations about this. The bulletin said in relation to these officials:

“These HWU 6 officials cannot exercise … a Right of Entry under either Part 3-4 of the Fair Work Act 2009 … or under Clause 127 of the Victorian Public Health Sector (Health Professionals, Health and Allied Services, Managers and Administrative Officers) Multiple Enterprise Agreement 2011-2015 as varied [the HSUEast Agreement] (for employers covered by that Agreement).

However, the revocation of Right of Entry Permits of these HWU officials does not prevent them from entering your premises where you otherwise agree to their entry, or for the purposes described in Clauses 77, 125, 126, 128 and 129 of the HSUEast Agreement.”

[10] Clause 127 of the HSUEast Agreement allows a right of entry to workplaces for union representatives with an entry permit for the purpose of investigating suspected breaches, for OHS purposes, or for holding discussions with employees in a manner consistent with the right of entry provisions of the FW Act. Clause 77 contains a dispute resolution procedure which, in subclause 77.1.3, allows for employees to be represented at any stage by a union representative. Clauses 125 and 126 contain disciplinary procedures which allow for union representation. Clause 128 requires the HSU to be informed of and permits it to attend orientation/induction programs for new employees. Clause 129 allows the HSU to be “given access to the Employees of the Employer”, and requires HSU officials to be provided with access to resources and facilities in a manner that does not adversely affect service delivery and work requirements. The effect of the advice in the bulletin quoted above appears to be that HSU officials without entry permits may still access workplaces with the consent of the employer or to participate in dispute resolution processes, disciplinary procedures and orientation/induction programs under the terms of the HSUEast Agreement.

[11] The second bulletin was dated 29 June 2015. It opened by referring back to the earlier bulletin, and then quoted the conclusions stated in paragraph [269] of the Decision concerning Ms Asmar and Mr Katsis (as well as Mr Steven Mitchell, whose entry permit was not revoked).

[12] Reading the two bulletins together (so that the advice contained in the first is to be treated as applicable to Ms Asmar and Mr Katsis), I do not perceive any encouragement to employers covered by the HSUEast Agreement to deny Ms Asmar and Mr Katsis any entry to workplaces. Rather, I consider that the advice contemplates considerable scope for them to attend workplaces to represent employees for a range of purposes under the HSUEast Agreement or otherwise by agreement. The statement that the effect of the revocation of their entry permits is that Ms Asmar and Mr Katsis cannot exercise non-consensual rights of entry under Part 3-4 of the FW Act (or under clause 127 of the HSUEast Agreement, which reflects the rights in Part 3-4) is one that is obvious and correct.

[13] During the course of the hearing of the stay application, I raised with the appellants the possibility of a stay being granted subject to two conditions: first, that Ms Asmar and Mr Katsis undertake the ACTU right of entry training course (having regard to the findings in the Decision, challenged in the appeal, that they had not actually undertaken that training), and second, that they exercise any right of entry in company with another HSU official who held an entry permit. In relation to the first putative condition, the appellants advised me that they did not oppose the condition but that for practical programming reasons the training could not be undertaken for about a month. It is not clear to me why the ACTU training program, which is conducted online, could not be accessed within a short space of time, but that is the advice I was provided. In relation to the second putative condition, I was ultimately advised by the appellants that it would not be practicable for such a condition to be imposed upon Mr Katsis.

[14] The Commission will be in a position to hear the appeal on 8 September 2015. It can reasonably be anticipated that the Commission will be able to issue a decision in the matter within, and perhaps well within, eight weeks of that date.

[15] Having regard to the matters earlier discussed, I am not positively satisfied on the material currently before me that the balance of convenience favours the grant of a stay. I have reached that conclusion for the following reasons:

(1) The findings made by Vice President Watson that Ms Asmar and Mr Katsis did not undertake the requisite right of entry training and made false declarations about this are plainly serious. Although these findings are challenged in the appeal, as earlier stated I am not presently of the view, on the basis of the limited argument to date, that the appellants have significant prospects of successfully overturning those findings. If the effect of a stay order would be to restore to Ms Asmar and Mr Katsis their entry permits pending the hearing and determination of the appeal, then it would be highly problematic to grant such an order in the face of the current findings that they have never undertaken the required training in relation to the rights and responsibilities of permit holders under the FW Act.

(2) The two conditions which I proposed during the hearing of the stay application, if they could practicably have been implemented immediately upon the grant of a stay order, may have alleviated the identified difficulty. However, I regard the effect of the advice received from the appellants to be that the conditions are not practicable.

(3) The appeal will be able to be heard and determined in a comparatively short space of time. It does not appear, on the evidence before me, that it is likely that the appellants or the members of the HSU will suffer significant prejudice in that period if the stay is not granted. Since the Order took effect, Mr Katsis has been able to obtain consensual access to worksites, and Ms Asmar has not yet “tested the waters”. In my experience, it is only comparatively rarely that union officials are unable to consensually access a workplace for the purpose of discussions with members during non-working time and thus require the use of an entry permit to do so, and the evidence of Ms Asmar and Mr Katsis was not significantly inconsistent with this. The VHIA advice explicitly recognises that access may be consensually granted, and further recognises that under the terms of the HSUEast Agreement union officials may access the worksite to participate in dispute resolution procedures, disciplinary procedures and orientation/induction programs without having an entry permit. Of course, not all members of the HSU are covered by the HSUEast Agreement, but a large proportion are, and I have no reason to think that most other employers of HSU members not covered by that agreement would take any different position to that adopted by the VHIA.

[16] Accordingly the stay application is dismissed.

VICE PRESIDENT

Appearances:

R. van de Wiel QC and J. Watson of counsel for the Health Services Union - Victoria No. 1 Branch, Diana Asmar and Nick Katsis.

Hearing details:

2015.

Sydney:

27 July.

 1   [2015] FWC 3359

 2   Ms Asmar is the Secretary of the HSU’s Victoria No. 1 Branch and Mr Katsis is the Senior Lead Organiser.

 3   PR568839

 4   [2000] AIRC 785, Print S2639

 5  Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]

 6   The HSU Victoria No. 1 Branch operates under the name “Health Workers Union” or HWU.

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