John Wilson v The Australian Capital Territory and Calvary Health Care Act Limited
[2021] FWCFB 1776
•31 MARCH 2021
| [2021] FWCFB 1776 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
John Wilson
v
The Australian Capital Territory and Calvary Health Care ACT Limited
(C2021/451)
VICE PRESIDENT HATCHER | SYDNEY, 31 MARCH 2021 |
Appeal against decision of Deputy President Dean ([2021] FWCA 109) – permission refused
[1] Mr John Wilson has lodged an appeal, for which permission is required, against a decision of Deputy President Dean dated 11 January 2021 1 (decision). In the decision, the Deputy President approved an enterprise agreement known as the ACT Public Sector Medical Practitioners Agreement 2017-20212 (Agreement) under s 185 of the Fair Work Act 2009 (FW Act). The Agreement was approved as a “single interest” agreement and applies to the Australian Capital Territory (ACT) and Calvary Health Care ACT Limited (Calvary), as well as some 1100 persons employed as medical practitioners in the ACT. It also covers the Australian Salaried Medical Officers’ Federation.
[2] Mr Wilson was the bargaining representative for two radiologists covered by the Agreement. Before the Deputy President, Mr Wilson contended that the Commission should refuse to approve the Agreement on the basis that the ACT and Calvary were not “single interest employers” for the purposes of s 172 of the FW Act, and because the employers had not taken all reasonable steps to explain to employees the terms of the Agreement and the effect of those terms, as required by s 180(5) of the FW Act. 3 The Deputy President rejected these contentions.4
[3] In the decision, the Deputy President concluded that the ACT and Calvary were single interest employers because they were engaged in a common enterprise within the meaning of s 172(5)(a) of the FW Act. 5 She was also satisfied that the explanation of the terms of the Agreement met the requirements of s 180(5).6 In particular, she rejected Mr Wilson’s contention that there had been an inadequate explanation of the provisions in the Agreement relating to the “radiology scheme”.7 The Deputy President concluded that all of the relevant requirements of ss 186, 187 and 188 of the FW Act had been met and approved the Agreement.8
[4] The Commission’s powers in an appeal under s 604 of the FW Act are only exercisable if there is error on the part of the primary decision-maker. Further, an appeal may only be made with the Commission’s permission. The Commission must grant permission to appeal if it is satisfied that it is in the public interest to do so. It may otherwise grant permission on the conventional bases.
[5] Mr Wilson’s notice of appeal advanced two grounds upon which he contended that the Deputy President’s decision was affected by error. The first submitted that the Deputy President was wrong to conclude that the ACT and Calvary were single interest employers engaged in a common enterprise. The second contended that the Deputy President erred in concluding that the requirements of ss 180(5) and 180(6) of the FW Act had been met and denied Mr Wilson procedural fairness in reaching this conclusion. After a brief adjournment following the conclusion of Mr Wilson’s oral submissions in the appeal, we advised the parties that we had decided to refuse permission to appeal and that we would publish our reasons for doing so. Those reasons were are as follows.
[6] The first ground of appeal reveals no error in the decision. There is a contract between the ACT and Calvary entitled “Calvary Network Agreement” dated 7 December 2011, pursuant to which the parties deliver public health services throughout the ACT. The Deputy President concluded that this contract demonstrated that there was a fully integrated operational relationship between the ACT and Calvary. 9 She rejected Mr Wilson’s argument that the nature of the relationship between the parties was one of outsourcing or labour hire. She concluded that the ACT and Calvary were engaged in a common enterprise. This conclusion was correct.
[7] Mr Wilson said that Calvary is a corporation with a stated mission to “bring the healing ministry of Jesus to those who are sick, dying and in need”, and that its higher purpose therefore differed from that of the ACT, with the consequence that the bargaining interests of the employees of the two employers were distinct. We do not accept that the bargaining interests of the employees were relevant to the question of whether the two employers were engaged in a common enterprise. In any event, we do not accept that the interests of the two groups were distinct. Both are engaged in the provision of care for the sick. Whether this is done in the name of Jesus or the state is, for present purposes, irrelevant. There is no reason why a person’s bargaining interests should be affected by the religious or secular orientation of the employer. There is no reason why employers with different goals could not combine to form a common enterprise for a particular purpose. The first ground of appeal is without substance.
[8] As to the second ground of appeal, Mr Wilson contended that a number of the terms of the Agreement were not explained to employees, and that the employers had for that reason not complied with s 180(5). This is a submission that might be made before a single member in an application under s 185, but it is not an acceptable appeal submission, because it does not speak to error. An appellant must show why it was not open to the member to conclude that all reasonable steps to explain the agreement were taken. The mere fact that a particular term was not the subject of an individual explanation is not sufficient by itself to demonstrate error in a finding that the requirement in s 180(5) has been met. It is the “terms” collectively that must be explained. It will not always be necessary for each term to be individually explained.
[9] Mr Wilson submitted that there had been no explanation of certain changes introduced by the Agreement to the eligibility for “onerous hours”. However, these provisions were in fact explained, and no persuasive argument was advanced as to why any defect in that explanation meant that the conclusion reached by the Deputy President in relation to the requirement in s 180(5) was not open to her.
[10] Mr Wilson further contended that the employers did not take all reasonable steps to explain the terms of the “radiology scheme”. At [45] of the decision, the Deputy President set out the text of the explanation that had dealt with the radiology scheme. Mr Wilson said that this explanation had been misleading, but he could not convincingly explain or even articulate why this was the case. It was Mr Wilson’s argument on appeal that the scheme was not what the ACT Government said it was but, at the same time, he said he and his clients were unable to identify and did not know what the scheme was.
[11] Mr Wilson was unable to identify what interest of his clients had been affected by the allegedly misleading nature of the explanation of the radiology scheme. He acknowledged that the changes to the radiology scheme had not resulted in any reduction in his clients’ pay. He was unable to point to any detriment that accrued to them as a result of these changes. It is also relevant to note the uncontested evidence that each radiologist received a letter containing a tailored explanation of the radiology scheme as it applied to them, and that Mr Wilson raised no concerns about the letters his clients received. Asked why permission should be granted to allow him to appeal on this basis, Mr Wilson said that, even if his clients’ personal interests were not engaged, it would be in the public interest to grant permission. We disagree. We fail to see how it is in the public interest to allow two objectors to challenge the approval of an enterprise agreement that applies to over a thousand workers on the basis that the explanation of one term might have been inadequate in some ill-defined and inconsequential way.
[12] The evidence of Mr Steven Linton, the Director of Industrial Relations for Canberra Health Services, ACT Government, before the Deputy President addressed the various steps taken to explain the terms of the Agreement to employees. These were substantive and detailed steps. The Deputy President considered that the employer had taken all reasonable steps to explain the Agreement. This conclusion was plainly open. No error has been established.
[13] Mr Wilson also contended that his clients were denied procedural fairness because the Deputy President refused his request to cross-examine an ACT witness about the terms of the radiology scheme, and because his application for orders to produce documents relating to the scheme was denied. We see no error in these decisions, and certainly no denial of procedural fairness. Mr Wilson’s submissions about his efforts to obtain information about the radiology scheme tended to demonstrate that the orders for production he sought were a “fishing expedition” in that they were sought for the purpose of exploring whether the radiology scheme was something different to what the ACT Government said it was rather than obtaining documents to support any articulated contention as to the true nature of the scheme. Finally, Mr Wilson’s submissions did not address s 180(6) of the FW Act. The contention was evidently abandoned, and, we consider, rightly so.
[14] This appeal has seen two individuals object to the approval of an agreement in the absence of any identifiable substantive interest having been affected by the alleged irregularities in the agreement-making process. It was not contended that, had the agreement been made as a multi-employer agreement, the employer of the two radiologists would have recorded a “no” vote and been removed from the agreement’s coverage. It was not contended that the alleged deficiency in the explanation of the Agreement led the two radiologists or anyone else to think that the Agreement would provide for one thing, when in fact it provided for another. At first instance, the Deputy President asked Mr Wilson what interest his clients had in preventing the agreement being approved. He declined to say, on the basis that it was confidential. 10 No practical detriment to the two individuals concerned, or indeed to anyone, arising from the Deputy President’s decision was identified in the appeal. This points to there being a lack of utility, as well as merit, in the appeal.
[15] There are no grounds upon which to grant permission to appeal, either in the public interest or otherwise. Mr Wilson has not made out an arguable case of error. The Deputy President’s decision is not attended by doubt such as to warrant its reconsideration. It does not manifest an injustice.
[16] Permission to appeal was refused for these reasons.
VICE PRESIDENT
Appearances:
Mr S. McIntosh of counsel for Mr Wilson
Mr M Follett of counselwith Mr A Crocker of counsel for the ACT
Mr J Darams of counsel for Calvary Health Care ACT Limited
Mr S Ross for the Australian Salaried Medical Officers Federation
Hearing details:
2021.
Sydney(video-link).
25 March.
Printed by authority of the Commonwealth Government Printer
<PR728283>
1 [2021] FWCA 109
2 AE510064
3 [2021] FWCA 109 at [20]
4 Ibid at [24], [53]-[54]
5 Ibid at [22]-[26]
6 Ibid at [53]
7 Ibid at [42]-[49]
8 Ibid at [59]
9 Ibid at [25]
10 Transcript, 11 December 2020, PNs 452-55
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