Inna Grabovsky v United Protestant Association of NSW Ltd t/a UPA

[2015] FWC 7743

[2015] FWC 7743

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.589 - Application for procedural and interim decision

Inna Grabovsky
v
United Protestant Association of NSW Ltd t/a UPA
(ADM2015/5)

VICE PRESIDENT HATCHER SYDNEY, 24 DECEMBER 2015

s.589 - Application for procedural and interim decision.

[1] On 5 March 2014 Mrs Inna Grabovsky lodged an application for the Commission to deal with a dispute with her employer, United Protestant Association of NSW Ltd t/a UPA (UPA), pursuant to s.739 of the Fair Work Act 2009 (FW Act). The application (C2014/3318) sought that the Commission exercise the dispute resolution powers conferred upon it by the dispute resolution procedure in clause 42 of the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011 – 2014 (Agreement).

[2] The application contended that a number of issues were in dispute, one of which concerned the alleged excessive workload placed on the applicant (workload dispute). The dispute application was initially the subject of conciliation before Deputy President Booth. Conciliation was unsuccessful. Mrs Grabovsky then sought the dispute application be subject of arbitration by the Commission. UPA objected to arbitration of the workload dispute, on the basis that clause 42.6 of the Agreement only allowed for arbitration of disputes arising under clause 33, Workload Management, of the Agreement, by agreement between the parties to the dispute. Clause 33 directly concerned the issue of workload, and relevantly provided in clause 33.4 that any unresolved issue concerning workload was to be advanced through the procedure in clause 42. UPA did not agree to arbitration, and submitted therefore the workload dispute could not be dealt with further by the Commission. In a decision issued by the Deputy President on 20 August 2014 1 (DP’s decision), the Deputy President upheld UPA’s jurisdictional objection, and directions were made to facilitate the arbitration of the other matters identified in the dispute application.

[3] Mrs Grabovsky subsequently lodged an appeal against the DP’s decision. A stay of the decision was issued on 26 September 2014 2 pending the determination of the appeal.

[4] In her appeal submissions, Mrs Grabovsky challenged not only the conclusion that the Commission had no jurisdiction to arbitrate the workload aspect of the dispute, but also challenged the right of the UPA to be represented at first instance by “an unauthorised person”. In this regard, Mrs Grabovsky contended that there was no evidence establishing that the paid agent who had been granted permission to appear for UPA at first instance had in fact been given authority to act on behalf of UPA. She submitted that UPA “should be represented either by Mr S. Walkerden who is the authorised person by virtue of the Corporations Act 2001, or must provide to the Commission and to the Appellant properly executed authorisation for any of the representatives.” The “Mr Walkerden” referred to is the General Manager of UPA.

[5] In a decision issued on 24 October 2014 3 (appeal decision), a Full Bench of the Commission refused to grant Mrs Grabovsky permission to appeal. In the appeal decision the Full Bench affirmed the conclusion of the Deputy President concerning the Commission’s lack of power to compulsorily arbitrate the workload dispute. In relation to the issue of UPA’s representation at first instance, the Full Bench said at [12]:

“[12] We consider that only the workload management question is properly before us in the appeal. We note that the representation issue has been resolved, at least in part, by the provision to the applicant of a copy of the Form F53 Notice of Representative Commencing to Act dated 13 March 2014. This form was signed by the respondent's General Manager and authorised the representation of the respondent by Ms McConville. The notice was filed in the initial proceedings although Mr Grabovsky submitted he had not previously seen the notice. In relation to the issue regarding the provision of pay slips, we note the rulings given in transcript by the Deputy President on 30 June 2014 and that the Commission does not have jurisdiction under ss.536 and 546 of the Act to make the orders sought by the applicant.”

[6] The Form F53 Notice of Representative Commencing to Act referred to by the Full Bench was apparently supplied to Mrs Grabovsky after she raised the representation issue. UPA appears to have overlooked serving this upon Mrs Grabovsky when it was filed in March 2014.

[7] The remaining issues arising in Mrs Grabovsky’s dispute application were dealt with in a decision issued by Vice President Lawler on 10 April 2015. 4 Mrs Grabovsky was not successful. She lodged an appeal for permission to appeal this decision. A Full Bench of this Commission refused permission in a decision issued on 25 June 2015.5

[8] On 30 July 2015, Mrs Grabovsky lodged an application in which she sought the following:

(1) The DP’s decision be quashed.

(2) To “nil and void” the appeal decision.

(3) Reinstatement of the workload dispute in the proceedings for the purpose of arbitration.

[9] This application has been allocated to me for determination and is the subject of this decision.

[10] In support of her application, Mrs Grabovsky has made the following submissions:-

• No evidence has ever been provided that the paid agent who represented UPA before the Deputy President was authorised to do so by an authorised officer of UPA.



• Mr Walkerden was the authorised officer of UPA under the Corporations Act 2001 and the FW Act. No document had been issued under his signature authorising the agent’s appearance before or on the day of the hearing before the Deputy President on 30 July 2014.



• The Form F53 document referred to in paragraph [12] of the appeal decision was characterised as having been “backdated”, false and fraudulent.



• No Form F53 “Notice of Representative Commencing to Act” was produced by UPA prior to or at the hearing.



• The grounds upon which the agent obtained permission to appear from Deputy President were misleading and false.



• The agent had no knowledge or qualification relevant to the matter in dispute.



• None of the conditions for representation in s.596 of the FW Act were satisfied, with the result that the hearing was misconceived and the outcome of the hearing was illegitimate.



• The issue of workload management is “one of the key issues that is instrumental for the crime and reckless conduct committed by the Respondent which resulted in multiple deaths of residents and caused serious injury to the Applicant”.



• The arbitration of the workload dispute is in the public interest.

[11] Mrs Grabovsky contended that s.603 of the FW Act supplied the power to grant the application. Section 603(1) of the FW Act empowers the Commission to revoke or vary its prior decisions (subject to the exceptions specified in s.603(3)). For reasons which will become apparent, it is not necessary for me to determine to finality whether there is power under s.603(1) of the FW Act to grant Mrs Grabovsky’s application.

[12] The question here is whether the decisions concerning UPA’s jurisdictional objection can be set aside, and the issue of workload be allowed to proceed to arbitration, on the basis of the issues concerning representation raised by Mrs Grabovsky. The answer must be “no”. It is of course the case that the Commission is a statutory tribunal which may only exercise the powers conferred upon it by the FW Act (or any other Act). No procedural defect, however gross, can supply the Commission with jurisdiction which it does not possess under statute. Therefore, even if the matters raised by Mrs Grabovsky have substance - which they do not, for reasons which will be explained - the result cannot be that the Commission thereby has jurisdiction to deal with the workload issue in dispute.

[13] Under s.739(3) of the FW Act, the Commission must not exercise any powers in a dispute resolution term in an enterprise agreement that are limited by the term. Under s.739(4), the Commission may arbitrate only in accordance with such a term. Under s.739(5), the Commission must not make a decision that is inconsistent with an applicable enterprise agreement. As was determined to be the case in Deputy President Booth’s decision, and affirmed in the appeal decision, the Agreement does not permit the Commission to arbitrate the workload dispute except by consent of the parties. I am bound to follow the Full Bench decision in that respect, and in any case I have no doubt as to its correctness. UPA does not consent to arbitration, and that is the start and end of the matter. No procedural issue raised by Mrs Grabovsky can operate to alter the requirements in subclause (3), (4) and (5) of s.739. The relevant effect of those provisions is that the Commission is prohibited from arbitrating the workload dispute. Even if the DP’s decision and the appeal decision were to be revoked on the procedural grounds identified by Mrs Grabovsky, it would remain the case that the Commission has no power to arbitrate the workload dispute. A revocation order would therefore be futile.

[14] Mrs Grabovsky sought to evade this difficulty by submitting that there was jurisdiction to arbitrate the workload dispute on the basis that the requirement for consent to arbitration in the dispute resolution procedure in the Agreement was invalid because it was repugnant to s.186(6)(a) of the FW Act. Section 186(6)(a) provides:

(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;...

[15] That submission must be rejected. In Woolworths Ltd trading as Produce and Recycling Distribution Centre 6 a Full Bench rejected the proposition that s.186(6)(a) required that a dispute resolution procedure contain provisions for compulsory arbitration, and found that a procedure which allowed for arbitration only by consent conformed to the requirement in s.186(6)(a).

[16] Mrs Grabovsky also submitted that the workload provisions in clauses 33.4 and 42.6 of the Agreement contravened the Work Health and Safety Act 2011 (presumably the NSW Act), and that the Work Health and Safety Act was superior to the FW Act. Even if this submission is accepted (which it is not), it could not ground jurisdiction to arbitrate under s.739 of the FW Act. The Work Health and Safety Act sets out its own procedures for dealing with contraventions of that Act. Those procedures do not involve arbitration by this Commission. Mrs Grabovsky also submitted that the Commission derived power because of the public interest, the interests of justice and human rights. None of these general concepts operates to confer arbitral power on the Commission in relation to the workload dispute.

[17] In any event, the procedural issues raised by Mrs Grabovsky are without substance. The most obvious answer to the issue of whether UPA’s agent was properly authorised is the fact that, on 13 March 2013, Mr Walkerden, the General Manager of UPA, signed a “Form F53 – Notice of Representative Commencing to Act” authorising the agent to appear on UPA’s behalf. The Commission’s records demonstrate that that document was e-filed in the Commission on 18 March 2014. UPA’s omission to serve this document on Mrs Grabovsky does not alter the fact of that authorisation. Mrs Grabovsky was supplied with a copy of the Commission’s record in this respect prior to the hearing before me.

[18] That authorisation having been given, the agent was entitled to communicate the UPA’s position on all matters before the Commission at the hearing, as the agent did. There is no cause in that circumstance for the Commission to engage in, as Mrs Grabovsky put it, an explanation of UPA’s “state of mind” on the issue.

[19] In respect of the Deputy President’s decision to grant permission for UPA to be represented, the reasons for this course are set out in paragraph [9] of her decision. I am perfectly satisfied that the decision to grant permission was properly founded on a conclusion that the criterion in s.596(2)(c) was satisfied and that no unfairness would result if permission was granted in the exercise of the discretion. If Mrs Grabovsky had any complaint about the decision, it should have been subject to an appeal. It was not (apart from the issue of authorisation as earlier discussed). In those circumstances, it is not open for Mrs Grabovsky to use this application under s.603 as a substitute for an appeal application which should have been made over a year ago but was not.

[20] Finally, I note that Mrs Grabovsky’s representative in these proceedings (her husband, Igor Grabovsky) has persisted in making very serious allegations about the standard of care at UPA facilities, as he has done in a number of earlier hearings before the Commission. Those allegations have not, as usual, been supported by any evidence whatsoever. I have referred to those allegations in this decision only for the purpose of demonstrating the egregious nature the conduct of Mrs Grabovsky’s representative in the proceedings to date. Baseless allegations of a similarly serious nature were made about the conduct of UPA’s agent in the proceedings. That is a matter which I will take into account if Mr Grabovsky seeks to appear on anyone else’s behalf in any future matter before me.

[21] The application is dismissed.

VICE PRESIDENT

Appearances:

I. Grabovsky for the Applicant.

Hearing details:

2015.

Sydney:

5 November.

Final written submissions:

16 November 2015 – Applicant.

 1   [2014] FWC 5634

 2   PR555913

 3   [2014] FWCFB 7533

 4   [2015] FWC 2504

 5   [2015] FWCFB 3926

 6   [2010] FWAFB 1464

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