Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA
[2015] FWCFB 3926
•25 JUNE 2015
| [2015] FWCFB 3926 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
v
United Protestant Association of NSW Ltd t/a UPA
(C2015/3729)
VICE PRESIDENT HATCHER |
|
Permission to appeal sought against decision [2015] FWC 2504 of Vice President Lawler at Sydney on 10 April 2015 in matter number C2014/3313.
Introduction
[1] On 29 April 2015, Mrs Inna Grabovsky filed a notice of appeal in which she sought permission to appeal a decision of Vice President Lawler issued on 10 April 2015 1 (Decision). The Decision was made as a result of the arbitration of a dispute in accordance with the dispute resolution procedure in the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 (Agreement). The dispute concerned whether Mrs Grabovsky, an aged care worker employed by the respondent, had been correctly paid under the classification of Care Service Employee (CSE) Grade 2 under the Agreement. Mrs Grabovsky contended in the arbitration that she should have been paid as a CSE Grade 4 Level Two, or alternatively a CSE Grade 3, under the Agreement.
[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.
[4] Mrs Grabovsky did not succeed in either her narrower or broader case at first instance. In the Decision, Vice President Lawler found that Mrs Grabovsky was correctly classified and paid as a CSE Grade 2. He also rejected the broader proposition that there was any legal impediment to an employee classified at that grade being required to “administer medicine” in the way that Mrs Grabovsky had been required to do in the performance of her duties.
[5] Mrs Grabovsky’s appeal notice identified the public interest grounds upon which permission to appeal was sought as follows (emphasis and underlining in original):
“(1) The Member of the Commission exceeded his jurisdiction allowing and endorsing administration of medicines by unqualified personnel that is a violation of the existing legislation, regulations and Government Guidelines. It is in the public interest to prevent the spread of such a practice anywhere in Australia.
(2) The Member’s decision is causing real and present danger to the general population.
(3) The Member’s decision is manifestly unjust and it will cause further substantial injustice to the Appellant should the leave for appeal not be allowed.
(4) The Member’s decision contradicts the legal principals [sic] of fair and just conduct.
(5) The conduct of the Member caused disrepute to the Commission and must not be allowed in the future.”
[6] The errors alleged in the Decision were that Vice President Lawler had acted upon wrong principles, omitted all evidence of misconduct by the respondent, made a decision that was manifestly unjust and which posed real and present danger to the general population, was prejudiced and biased, fell into jurisdictional error, intentionally prevented the course of justice, failed to take material considerations into account, mistook and misrepresented the facts, and was responsible for errors on the face of the record.
[7] In her oral submissions in support of her application for permission to appeal, Mrs Grabovsky emphasised her broader case concerning the legality of aged care employees not registered as health practitioners under the Health Practitioner Regulation National Law being required to administer medicines. Mrs Grabovsky insisted that this was an issue attracting the public interest which justified the grant of permission to appeal.
Consideration
[8] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission. Subsection 604(2) requires the Commission to grant permission to appeal if satisfied that it is “in the public interest to do so”. Permission to appeal may otherwise be granted on discretionary grounds.
[9] The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. 3 The public interest is not satisfied simply by the identification of error, or a preference for a different result.4 In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues 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...” 5
[10] Other than the special case in s.604(2), the grounds for granting permission to appeal are not specified. Considerations which have traditionally been 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. 6
[11] 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. 7 However, as earlier stated the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
[12] The proper subject matter of the dispute between Mrs Grabovsky and the respondent concerned whether she had been properly paid and classified under the terms of the Agreement which applied to her employment. The classification descriptors in the Agreement relevant to this dispute were as follows (with underlining added as per paragraph [22] of the Decision):
Care Services Employee Grade 2
1.3 Care Service Employee Grade 2 means an employee with relevant experience who works individually or in a team environment, and is responsible for the quality of their own work, subject to general supervision, including compliance with documentation requirements as determined by the employer.
Indicative tasks an employee at this level may perform are as follows:
Care Stream: Provide a wide range of personal Care Service to residents, under limited supervision, in accordance with Commonwealth and State Legislative requirements, and in accordance with the resident’s Care Plan, including: assist and support residents with medication utilising medication compliance aids; simple wound dressing; implementation of continence programs as identified in the Care Plan; attend to routine urinalysis, blood pressure, temperature and pulse checks; blood sugar level checks etc and assist and support diabetic residents in the management of their insulin and diet, recognising the signs of both Hyper and Hypo-Glycaemia, recognise, report and respond appropriately to changes in the condition of residents, within the skills and competence of the employee and the policies and procedures of the organisation; assist in the development and implementation of resident care plans; assist in the development and implementation of programs of activities for residents, under the supervision of a Care Service Employee Grade 3 or above, or a Diversional Therapist.
Support Stream: Assist a higher grade worker in the planning, cooking and preparation of the full range of meals. Drive a Sedan or Utility.
Maintenance Stream: Undertake basic repairs to buildings.
Care Services Employee Grade 3
1.4 Care Service Employee Grade 3 means an employee who holds either a Certificate Level III in Aged Care Work or other appropriate Qualifications/Experience acceptable to the employer and:
(a) is designated by the employer as having the responsibility for leading and/or supervising the work of others; or
(b) is required to work individually with minimal supervision and has been designated by the employer as having overall responsibility for a particular function within the residential aged care facility.
An employee who holds appropriate Trade Qualifications and is required to act on them. Employees at this level may be required to plan, direct, and train staff and comply with documentation requirements as determined by the employer and assist in the development of budgets.
Indicative tasks an employee at this level may perform are as follows:
Care Stream: Coordinate and direct the work of staff. Schedule work programs on a routine and regular basis. Develop and implement programs of activities for residents. Develop resident care plans.
Support Stream: Responsible for the planning, ordering and preparing of all meals. Responsible for the provision of domestic services. Schedule work programs on a routine and regular basis. Coordinate and direct the work of staff. Drive a Minibus or Larger Vehicle.
Maintenance Stream: Carry out maintenance, repairs, gardening and other tasks falling within the scope of trades skills. Undertake the more complicated repairs to equipment and appliances calling for trades skills. Coordinate and direct the work of staff performing gardening duties. Schedule work programs on a routine and regular basis.
Care Services Employee Grade 4
1.5 Care Service Employee Grade 4 means:
. . .
(b) Level Two: An employee who is required to deliver medication to residents in residential aged care facilities:
● previously defined as Nursing Homes (as at 31 December 2004) by the Nursing Homes Act 1988 (NSW); or
● in which more than 80% of places are “allocated high care places” as defined in the Aged Care Act 1997 (Cth).
An employee at this level must hold the following qualifications, which may be varied from time to time by the relevant National Vocational, Education and Training Body:
● a Certificate III in Aged Care Work (CHC30102); and
● a Certificate IV in Aged Care Work (CHC40102); and
● medication module – “Provide Physical Assistance with Medication” (CHCCS303A); or
Hold other appropriate qualifications acceptable to the employer.
Employees at this level may be required to perform the duties of a CSE 4 - Level 1.
[13] In the Decision, the following findings were made concerning the duties actually performed by Mrs Grabovsky which she sought to characterise as involving the “administration of medicine”:
“[19] … The contentious duties were identified as:
(a) breaking a resident’s Webster pack blister at the appropriate time, placing the tablets/capsules in the bubble into a small plastic cup and handing that cup to the resident; or
(b) opening a resident’s medicine bottle at the appropriate time and placing the appropriate pill or pills from the bottle into a small plastic cup and handing that cup to the resident,
In each case watching to ensure the resident successfully consumes all of the tablets/capsules in the plastic cup. I assume that, on occasions, Mrs Grabovsky may have needed to assist the resident by placing tablets/capsules in the resident’s mouth and holding a cup of water to the resident’s mouth to help them consume the water necessary to swallow the tablets/capsules.
[20] The Respondent denies that the actions described in paragraph [19](b) ever formed part of Mrs Grabovsky’s duties. Although, the Respondent admitted that her relevant duties also included:
(a) handing an inhaler to a resident; and
(b) handing and assisting a patient to apply prescribed medication patch.”
[14] There was no challenge to the correctness of these findings by Mrs Grabovsky on appeal.
[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. 8 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 classification9, 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.10 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.
[17] Perhaps realising the tension between her wider argument and the specific classification issue, Mrs Grabovsky adopted the position for the purpose of the appeal that she was entitled to be paid under the classification of Registered Nurse. Leaving aside the question of whether it was permissible for this new position to be advanced on appeal, this development underlined the lack of a logical connection between Mrs Grabovsky’s pay claim and her wider argument. Mrs Grabovsky, who was not qualified as a nurse, was patently not entitled to be classified or paid as if she were a Registered Nurse. However it was only by advancing her pay claim on this untenable basis that it could tenuously be reconciled with her wider argument concerning who could lawfully be required to “administer medicine”.
[18] We would conclude therefore that Mrs Grabovsky’s wider argument does not truly bear upon the issue which was the subject of the dispute, being her classification and pay rate. For that reason, we do not consider it appropriate to grant permission to appeal in order to permit the further agitation of that issue.
[19] In any event, nothing advanced on Mrs Grabovsky’s behalf has persuaded us that the point has any merit at least insofar as the duties performed by Mrs Grabovsky were concerned. Both at first instance and on appeal, Mrs Grabovsky emphatically contended that the Health Practitioner Regulation National Law required that no person other than a registered health practitioner could “administer medicine”, but equally emphatically refused to identify any specific provision of that legislation as supporting her position in that respect. The following exchange between Vice President Lawler and Mrs Grabovsky’s representative well illustrates this:
THE VICE PRESIDENT: Okay. What is the provision in that Act that you say prohibited this employer from giving the direction it gave?
MR GRABOVSKY: How should I know? You completely don’t get it, do you, your Honour? ... 11
[20] In the hearing before us we were no more successful in obtaining an answer to the same question, despite repeated invitations to Mrs Grabovsky’s representative to provide such an answer so that we could properly understand the case being advanced. Mrs Grabovsky’s position was that it was for the respondent to demonstrate that it could lawfully direct CSEs to “administer medicine”.
[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.
[27] Permission to appeal is refused.
VICE PRESIDENT
Appearances:
Mr I. Grabovsky on behalf of Mrs I. Grabovsky.
T. Saunders of counsel with S. Puxty solicitor for United Protestant Association of NSW Ltd t/a UPA.
Hearing details:
2015.
Sydney:
17 June.
1 [2015] FWC 2504
2 Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 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 & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
4 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; 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 at [28]
5 (2010) 197 IR 266 at [27]
6 Also see CFMEU v AIRC (1998) 89 FCR 200; and Wan v AIRC (2001) 116 FCR 481
7 Wan v AIRC (2001) 116 FCR 481 at [30]
8 Decision at [26]-[31]
9 Decision at [45]-[46]
10 Decision at [47]-[50]
11 Transcript 2 April 2015, PNs 229-230
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