Mrs Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA
[2018] FWC 7227
•5 December 2018
| [2018] FWC 7227 [Note: An appeal pursuant to s.604 (C2018/7219) was lodged against this decision and the order arising from this decision.] |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Mrs Inna Grabovsky
v
United Protestant Association of NSW Ltd T/A UPA
(C2017/7037)
| Commissioner Johns | melbourne, 5 December 2018 |
Application to deal with a dispute - jurisdictional objection - dispute settlement procedure – application for interim orders.
On 20 December 2017 Mrs Inna Grabovsky made an application under s.739 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (Commission) to deal with an alleged dispute under The UPA NSWNMA and HSU NSW Enterprise Agreement 2014-2017 (2014 Agreement). In making the application Mrs Grabovsky was assisted by her husband, Mr Igor Grabovsky.
The Respondent is United Protestant Association of NSW Ltd T/A UPA (UPA). The UPA is a not for profit operator of residential aged care facilities.
By way of background, between 30 March 2004 and 20 December 2017[1] Mrs Grabovsky was a part-time care service employee at a UPA facility in NSW. Mrs Grabovsky was classified as Grade II with a Certificate III in Care Support Services. However, for the last four years of her employment (since 27 August 2013) Mrs Grabovsky was absent from work. On 20 December 2017 (i.e. the same date that the present application was filed by Mrs Grabovsky) Mrs Grabovsky received a letter of termination, dated 14 December 2017 advising that her employment had been terminated.
In short it is contended in the present matter that,
“1. The dispute is about severe workload the Respondent (the UPA) recklessly imposed upon the Applicant (Inna Grabvosky) disregarding the Applicant’s health and wellbeing in favour of profit.
2. The Applicant was grossly underpaid for the whole of the period of her employment.
3. As a result of the severe workload the Applicant was injured in her employment.
4. The severe workload the adverse action of the Respondent resulted in the disability of the Applicant.”[2]
The dispute is said to arise under clauses 36 (Workload Management) and 43 (Grievance and Dispute Resolution Procedures) of the 2014 Agreement.
By way of relief Mrs Grabovsky asks that the Commission:
“1. Declare section 36.4 and 43.6(b) of the 2014 Agreement and sections 36.4 and 44.6(b) of the proposed UPA, NSWNMA and HSU NSW Enterprise Agreement 2017-2020 as terms that are of no effect pursuant to section 253(1)(b) of the Fair Work Act 2009 and ORDER to remove the abovementioned terms from the proposed Agreement.
2. To order the Respondent to pay all monies owed to the Applicant due to underpayment for the work performed.”
Section 253(1)(b) of the FW Act provides that,
(1) A term of an enterprise agreement has no effect to the extent that:
…
(b) it is an unlawful term; or
The matter was heard on 17 September 2018. The Applicant was represented by Mr Grabovsky. The Respondent was represented by Mr A Gotting of counsel instructed by Mr S Puxty of Cantle Carmichael Legal. I had previously granted the Respondent permission to be represented.[3] That decision was appealed. The Full Bench refused permission to appeal.[4]
Prior the hearing the parties filed and served materials. At the hearing the following exhibits were received:
EXHIBIT NO.
DESCRIPTION
A1
Applicant's Written Submissions filed 23/08/2018
A2
Additional Materials Filed by the Applicant on 30/08/2018
A3
Further Written Material Filed by Applicant on 12/09/2018
A4
Further Written Material Filed by Applicant on 14/09/2018
A5
Reply of Mr Grabovsky dated 30/08/2018
A6
Reply of Mr Grabovsky dated 12/09/2018 Re Jurisdictional Issue
A7
Submission of Mr Grabovsky dated 14/09/2018 Re Jurisdictional Issue
R1
Submissions of UPA dated 07/09/2018
R2
Submissions of UPA dated 12/09/2018
R3
Bundle of Judgment Documents filed 07/09/2018
R4
Report of Office of the Aged Care Commissioner dated 07/11/2014
R5
Nursing Guidelines
R6
Nursing Guidelines from ANMF Web Site
R7
Letter from UPA to Mrs Grabovsky dated 14/12/2017
R8
Pages of Transcript Being PN24 through to PN51 from Proceedings on 02/04/2015
R9
Copy of F10 Application in Matter C2014/3313 filed 05/03/2014
R10
Respondent's Reply Submissions dated 12/09/2018
R11
Factual Background Document
R13
Outline of Submissions filed by Applicant on 18 January Together with Evidence Relied on by Applicant
R14
Extract of Health Practitioners Regulation National Law
In coming to this decision I have had regard to all of the material that has been put before me (regardless of whether I reference any particular exhibit in this decision). I have also had regard to the submissions filed after I had reserved my decision by Mr Grabovsky on 18 September 2018. The UPA did not object to me receiving the same. In that submission Mr Grabovsky wrote,
“Have you read my written submissions? Have you read the Draft of the Decision? – Do you realize the strength of these simple questions?
If you say “No, I have not read your submissions”, you will confess to be negligent; if you say “Yes, I have”, you will proclaim your stupidity. Do not play a “cat and mouse” game with me: you are not in my league, and you are not a cat.”
As I have indicated above, I have read all of Mr Grabovsky’s submissions. For the reasons I explain below, I reject them (other than agreeing with the proposition that I am not a cat).
The present dispute is but one of a number of proceedings that Mrs Grabovsky has commenced against or involving the UPA as follows:
| Matter number | Date commenced | Commission constituted by | Nature of matter | Outcome |
| a) C2014/3313 | 5 March 2014 | Booth DP And then by Lawler VP | Dispute under clause 42 of the Aged and Home Care, NSWNA and HSU East Multi-Enterprise Agreement 2011-2014 (2011 Agreement) | UPA’s jurisdictional objection to the Commission arbitrating in respect to workloads was upheld (Booth Decision).[5] Mrs Grabovsky was correctly classified as a Care Service Employee Grade 2 (Lawler Decision).[6] |
| b) C2014/6273 | 9 September 2014 | Boulton SDP, Drake SDP and McKenna C | Appeal of Booth Decision. | Decided not to grant permission to appeal (Booth Appeal Decision).[7] |
| c) C2014/6537 | 25 September 2014 | Cambridge C | Dispute relating to the UPA not issuing payslips | UPA agreed to provide Mrs Grabovsky with payslips. |
| d) C2015/2392 | 7 April 2015 | Lawler VP | General Protections application not involving dismissal under s.372 of the FW Act. | Matter was closed as member determined there was no reasonable prospect of the matters in dispute being resolved. |
| e) C2015/3729 | 29 April 2015 | Hatcher VP, Kovacic DP, Johns C. | Appeal and stay of Lawler Decision | Stay application denied.[8] Decided not to grant permission to appeal.[9] (together Lawler Appeal Decisions) |
| f) C2015/4906 | 25 June 2015 | Ross J | Sought the variation of Booth Decision and Booth Appeal Decision Made pursuant to s.603 of the FW Act. Or, in the alternative, the referral of certain questions of law to the Federal Court, pursuant to s.608 of the FW Act. | Applications dismissed.[10] |
| g) C2015/4907 | 3 July 2015 | Ross J | Sought the variation of | |
| h) ADM2015/5 | 30 July 2015 | Hatcher VP | Application that the Booth Decision be quashed, that the Booth Appeal Decision and the reinstatement of the workplace dispute in the proceedings for arbitration. | Application was dismissed.[11] |
| i) C2017/5834 | 23 October 2017. | Johns C | General Protections application not involving dismissal under s.372 of the FW Act. | Matters were jointly closed as I determined there was no reasonable prospect of the matters in dispute being resolved. |
| j) B2017/987 | 17 October 2017 | Johns C | Application for the Commission to deal with a bargaining dispute under s.240 of the FW Act. | |
| k) C2018/685 | 9 February 2018 | Gooley DP Johns C (allocated after Gooley Decision) | General Protections application involving dismissal under s.365 of the FW Act. | Extension of time Granted (Gooley Decision).[12] Determination about whether to issue a certificate to be determined after the outcome of the matter C2017/7037 and AG2018/5218. |
| l) C2018/1708 | 29 March 2018 | Catanzariti VP, Bissett , Hunt C | Appeal of the Gooley Decision. | Permission to appeal refused.[13] |
| m) C2018/2426 | 8 May 2018 | Johns C | Dispute under clause 43 of the UPA, NSWNMA and HSU NSW Enterprise Agreement 2014 – 2017. | Outstanding matter |
| n) C2018/3178 | 12 June 2018 | Ross J, Asbury DP, Hampton C. | Appeal against a decision [[2018] FWC 2920] in matter number C2017/7037 and a decision [[2018] FWC 2751] in matter number AG2017/5218. | Permission to appeal not granted.[14] Application to vary decision not granted.[15] |
| o) ADM2018/10 | 9 September 2018 | N/A | Application to correct obvious error(s) etc. in relation to FWC's decision under s.602 of FW Act in relation to the Stay Decision in Lawler Appeal Decisions. | Not yet listed. |
| p) C2018/1708 | 24 September 2018 | Catanzariti VP, Bissett C, Hunt C | Application to “correct obvious errors” in the Full Bench decision [2018] FWCFB 2474.[16] | Full Bench was not satisfied that any of the purported errors identified by the Applicant resulted from an unintentional omission in the Decision or that the Decision fails to conform with the intention of the Full Bench.[17] |
In the matter resulting in the Booth Decision the UPA objected to the exercise of the Commission’s powers on the grounds that the 2011 Agreement did not provide the Commission with power to arbitrate with respect to workloads other than by agreement between the parties. The Deputy President upheld the jurisdictional objection. Her decision was undisturbed on appeal.
In the present matter the UPA again objects to the Commission exercising power on the ground that:
a) the 2014 Agreement does not provide the Commission with power to arbitrate with respect to workloads other than by agreement between the parties; and
b) the UPA does not agree to the arbitration in respect of workload management.
Noting that:
a) in the matter before Deputy President Booth Mr Grabovsky asked the Commission to arbitrate to resolve the dispute between Mrs Grabovsky and the UPA in accordance with clause 42 Grievance and Dispute Resolution Procedures in the 2011 Agreement; and
b) in the present matter the dispute involves clause 43 Grievance and Dispute Resolution Procedures in the 2014 Agreement,
it is worth setting out the respective clauses:
| Clause 42, 2011 Agreement | Clause 43, 2014 Agreement |
| 42. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURES 42.1 Unless otherwise stated the terms “party” or “parties” referred to in this clause means the employer and/or the employees, as the context requires. 42.2 This dispute resolution procedure will apply to disputes about: (a) any matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee; (b) threatened termination, with the exception that the arbitration provisions in sub clause 42.6 do not apply unless the parties agree. Further, the parties rights are reserved during this process and the employer may exercise their right to terminate the employee in accordance with the agreement; (c) matters in relation to the NES; (d) matters arising under the agreement; and (e) whether an employer had reasonable business grounds under subsection 65(5) of the Act - (requests for flexible working arrangements) or 76(4) of the Act - (requests for extending unpaid parental leave). 42.3 An employer or employee may appoint another person, organisation or association (e.g. Union or the Aged & Community Services Association of NSW & ACT Inc.) to accompany and/or represent them for the purposes of this clause. 42.4 In the event of a dispute the parties will initially attempt to resolve the matter at the workplace level, including, but not limited to: (a) the employee and his or her supervisor discussing the matter; and (b) if the matter is still not resolved the parties arranging further discussions involving more senior levels of management (as appropriate). 42.5 If a dispute is unable to be resolved at the workplace, in accordance with sub clause 42.4, a party to the dispute may refer the matter to FWA or other appropriate statutory tribunal. 42.6 The parties agree that FWA shall have the power to do all such things as are necessary for the just resolution of the dispute including: (a) mediation, conciliation and, with the exception of disputes arising under clause 33 – Workload Management, arbitration; and (b) arbitration, for disputes arising under clause 33 – Workload management, only with the agreement of the parties. 42.7 While the dispute resolution procedure is being conducted, work must continue in accordance with this agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace that is safe and appropriate for the employee to perform. | 43. GRIEVANCE AND DISPUTE RESOLUTION PROCEDURES 43.1 Unless otherwise stated the terms "party" or "parties" referred to in this clause means the employer and/or the employees, as the context requires. 43.2 This dispute resolution procedure will apply to disputes about: (a) any matters arising in the employment relationship, except matters relating to the actual termination of employment of an employee; (b) threatened termination, with the exception that the arbitration provisions in sub clause 43.6 do not apply unless the parties agree. Further, the parties rights are reserved during this process and the employer may exercise their right to terminate the employee in accordance with the agreement; (c) matters in relation to the NES; (d) matters arising under the agreement; and (e) whether an employer had reasonable business grounds under subsection 65(5) of the Act- (requests for flexible working arrangements) or 76(4) of the Act- (requests for extending unpaid parental leave). 43.3 An employer or employee may appoint another person, organisation or association (e.g. Union or Aged & Community Services NSW & ACT) to accompany and/or represent them for the purposes of this clause. 43.4 In the event of a dispute the parties will initially attempt to resolve the matter at the workplace level, including, but not limited to: (a) the employee and his or her supervisor discussing the matter; and (b) if the matter is still not resolved the parties arranging further discussions involving more senior levels of management (as appropriate). 43.5 If a dispute is unable to be resolved at the workplace, in accordance with sub clause 43.4, a party to the dispute may refer the matter to the FWC or other appropriate statutory tribunal. 43.6 The parties agree that the FWC shall have the power to do all such things as are necessary for the just resolution of the dispute including: (a) mediation, conciliation and, with the exception of disputes arising under clause 36- Workload Management, arbitration; and (b) arbitration, for disputes arising under clause 36 - Workload Management, only with the agreement of the parties. 43.7 While the dispute resolution procedure is being conducted, work must continue in accordance with this agreement and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace that is safe and appropriate for the employee to perform. |
What is immediately apparent from a comparison between the two Grievance and Dispute Resolution clauses is that they are in the same terms. Mr Grabovsky conceded that “the Dispute resolution procedure[s] … [are] identical in material particular”.[18] However, the Applicant asks that the clause be declared unlawful. Declaratory relief of that nature is not an exercise of arbitral power.
It is also worth setting out the Workload Management clauses in each of the agreements:
| Clause 33, 2011 Agreement | Clause 36, 2014 Agreement |
| 33. WORKLOAD MANAGEMENT 33.1 The parties to this agreement acknowledge that employees and management have a responsibility to maintain a balanced workload and recognise the adverse effects that excessive workloads may have on employee/s and the quality of resident/client care. 33.2 To ensure that employee concerns involving excessive workloads are effectively dealt with by Management the following procedures should be applied: (a) In the first instance, employee/s should discuss the issue with their immediate supervisor and, where appropriate, explore solutions. (b) If a solution cannot be identified and implemented, the matter should be referred to an appropriate senior manager for further discussion. (c) If a solution still cannot be identified and implemented, the matter should be referred to the Facility Manager for further discussion. (d) The outcome of the discussions at each level and any proposed solutions should be recorded in writing and fed back to the effected employees. 33.3 Workload management must be an agenda item at staff meetings on at least a quarterly basis. Items in relation to workloads must be recorded in the minutes of the staff meeting, as well as actions to be taken to resolve the workloads issue/s. Resolution of workload issues should be based on the following criteria including but not limited to: (a) Clinical assessment of residents’ needs; (b) The demand of the environment such as facility layout; (c) Statutory obligation, (including, but not limited to, workplace health and safety legislation; (d) The requirements of nurse regulatory legislation; (e) Reasonable workloads; (f) Accreditation standards; (g) Replacement of employees on leave; and (h) Budgetary considerations. 33.4 If the issue is still unresolved, the employee/s may advance the matter through Clause 42 - Grievance and Disputes Resolution Procedures. Arbitration of workload management issues may only occur by agreement of all parties. | 36. WORKLOAD MANAGEMENT 36.1 The parties to this agreement acknowledge that employees and management have a responsibility to maintain a balanced workload and recognise the adverse effects that excessive workloads may have on employee/sand the quality of resident/client care. 36.2 To ensure that employee concerns involving excessive workloads are effectively dealt with by Management the following procedures should be applied: (a) In the first instance, employee/s should discuss the issue with their immediate supervisor and, where appropriate, explore solutions. (b) If a solution cannot be identified and implemented, the matter should be referred to an appropriate senior manager for further discussion. (c) If a solution still cannot be identified and implemented, the matter should be referred to the Facility Manager for further discussion. (d) The outcome of the discussions at each level and any proposed solutions should be recorded in writing and fed back to the effected employees. (e) At each of the steps above the parties should aim to agree on a reasonable time frame for response. 36.3 Workload management must be an agenda item at staff meetings on at least a quarterly basis. Items in relation to workloads must be recorded in the minutes of the staff meeting, as well as actions to be taken to resolve the workloads issue/s. Resolution of workload issues should be based on the following criteria including but not limited to: (a) Clinical assessment of residents' needs; (b) The demand of the environment such as facility layout; (c) Statutory obligation, (including, but not limited to, workplace health and safety legislation; (d) The requirements of nurse regulatory legislation; (e) Reasonable workloads; (f) Accreditation standards; (g) Replacement of employees on leave; and (h) Budgetary considerations. 36.4 If the issue is still unresolved, the employee/s may advance the matter through Clause 43 - Grievance and Disputes Resolution Procedures. Arbitration of workload management issues may only occur by agreement of all parties. |
What is immediately apparent from a comparison between the two Workload Management clauses is that they are substantially in the same terms. The Applicant asks that the clause be declared unlawful.
Following the Booth Decision C2014/3313 was reallocated to Vice President Lawler. His decision concerned a dispute about the classification of Mrs Grabovsky. Therefore, it is useful to compare the classifications structures in the 2011 Agreement with those in 2014 Agreement.
| Schedule A - Clauses 1.3, 1.4 2011 Agreement | Schedule A - Clauses 1.3, 1.4 2014 Agreement |
| 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 services 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, equipment, appliances, and similar items not calling for trades skills or knowledge. Work with and undertake limited coordination of the work of other maintenance workers. Where no tradesperson is employed, an employee at this level may be called upon to perform tasks falling within the scope of trades skills, provided the time involved in performing such work, is paid at the rate of Care Service Employee Grade 3. Perform gardening duties. Provide advice on planning and plant maintenance. Attend to indoor plants, conduct recycling and re-potting schedules. Carry out physical inspections of property and premises and report. | 1.3 Care Service Employee Grade 2 means (a) Level One. 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 services 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, equipment, appliances, and similar items not calling for trades skills or knowledge. Work with and undertake limited coordination of the work of other maintenance workers. Where no tradesperson is employed, an employee at this level may be called upon to perform tasks falling within the scope of trades skills, provided the time involved in performing such work, is paid at the rate of Care Service Employee Grade 3. Perform gardening duties. Provide advice on planning and plant maintenance. Attend to indoor plants, conduct recycling and re-potting schedules. Carry out physical inspections of property and premises and report. (b) Level Two. An employee will be entitled to progress to the Level Two rate for all hours and duties performed in the care stream in accordance with the following conditions. The employee must: • be employed as a CSE 2; • have worked in the Care Stream for a minimum of 2 years; and • possess a Certificate Ill in Aged Care or a Certificate Ill in a similar field acceptable to the employer. |
| 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. | 1.4 Care Service Employee Grade 3 means an employee who holds either a Certificate Level Ill 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: Carryout 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. |
The key difference between the classification clauses in the two agreements is that Care Services Employees Grade 2 now has two levels in the 2014 Agreement. An employee is able to progress to Level Two when the employee,
a) is employed as a Care Services Employees Grade 2;
b) has worked in the Care Stream for a minimum of 2 years; and
c) possesses a Certificate III in Aged Care or a Certificate III in a similar field acceptable to the employer.
Mr Grabovsky contended that “the Applicant does not raise the question of classification in her Application for matter for matter C2017/7037. I must reiterate that the legal aspects of the matter C2017/7037 are different to previous matters.”[19] I reject that submission. In the substantive matter the Applicant seeks an order that “the Respondent … pay all monies owed to the Applicant due to underpayment for the work performed.” The claim for underpayment is based on a classification dispute. It is no different to the matter that was before Vice President Lawler.
On 24 August 2018 the UPA made an application to dismiss the present proceedings. It sought the following relief:
“1. That the application in matter number C2017/[7037] (the Proceedings) be dismissed either pursuant to s.587 of the Fair Work Act 2009 (the Act) or otherwise.
2. That the applicant pay the respondent’s costs on the basis that the application in matter number C2017/[7037] has been commenced and maintained vexatiously or without reasonable cause pursuant to [s.611] of the Act.”
The grounds advanced by the UPA were as follows:
“1. UPA does not consent to the Fair Work Commission arbitrating any "workload management" issue agitated by Mrs Grabovsky in the Proceedings. As such, by operation of cl43.6 of the Enterprise Agreement, UPA submits that the Fair Work Commission has no jurisdiction to hear the "workload management" complaint made by the Applicant in the Proceedings without the consent of UPA.
2. Mrs Grabovsky has previously unsuccessfully challenged the validity and interpretation of cl 43.6 by DP Booth in Inna Grabovsky v United Protestant Association [2014 FWC 5634] (20 August 2014) which was unsuccessfully appealed to the Full Bench by Mrs Grabovsky (Inna Grabovsky -v- United Protestant Association[2014] FWCFB 7533 (29 October 2014) (Senior Deputy President Boulton, Senior Deputy President Drake, Commissioner McKenna)).
3. The balance of the cause of action in the Proceedings has been heard and determined in previous proceedings, namely by VP Lawler (Inna Grabovsky -v United Protestant Association [2015] FWC 2504 (10 April2015)), such proceedings being the subject of an unsuccessful appeal by Mrs Grabovsky to the Full Bench (Inna Grabovsky -v- United Protestant Association[2015] FWCFB 3926 (Vice President Hatcher, Deputy President Kovacic, Commissioner Johns) (25 June 2015)).
4. UPA submits that the Proceedings should be dismissed in accordance with the principles of res judicata or issue estoppel and otherwise represents an abuse of process.”
It is convenient to first deal with the UPA’s application to dismiss the application brought by Mrs Grabovsky.
Section 587 of the FW Act provides that,
Dismissing applications
(1) Without limiting when FWA may dismiss an application, FWA may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
(2) Despite paragraphs (1)(b) and (c), FWA must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.
Principles of res judicata and issue estoppel
The principle of res judicata arises where a matter has already been decided and it is no longer subject to an appeal. It is intended to provide finality to proceedings so that the same issues are not continually re-litigated. The principle denies a reconsideration of a matter already decided. It prevents the making of contradictory judgements, or multiple judgments about the same subject matter or legal issues.
Having regard to the principles of res judicata it seems to me the Commission is not at large to make decisions that are inconsistent with or repugnant to decisions and orders made in the same or substantially the same matter. Further, that the efficacy of the administration of justice requires a presumption that such orders and decisions are regularly and appropriately made.
In the application the Applicant states that,
“The new (current application) is made due to the fact that new prima facie evidence came into existence that clauses 36 and 43 of the current Enterprise Agreement and sections 36 and 44 of the new Agreement under consideration are unlawful clauses.”
On behalf of Mrs Grabovsky, Mr Grabovsky submitted that “matter C2017/7037 is the satellite matter spinded out of the original dispute that was filed by the Applicant under sec. 739 back in March 2014 (C2014/3313).” I do not understand what he means by “satellite matter.” Having considered the 2014 application and carefully compared it to the present application it is not possible to discern any material difference between the two. I do not understand how it is said the present matter is “spun out”. It is essentially the same matter. Mr Grabovsky further contented that “because the Commission had never arbitrated the factual and legal dispute of the workload management application the principle of res judicata for matter C2017/7037 is not warranted by circumstances.” However, this submission demonstrates a misunderstanding of what was decided in the Booth Decision. The same question is before me. Does the Commission have the power to arbitrate the workload issue in the absence of the agreement by UPA? The answer then was “no”. The answer remains the same today. There cannot be a consideration of the “factual and legal dispute of the workload management application” without the consent of UPA. UPA has not provided its consent. That is the end of the matter.
The UPA submitted that,[20]
“39. In Blair-v- Curran the High Court held:
"The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order."
40. UPA contends that with respect to the portion of the Application that relates to the classification issue and the lawfulness of EA provisions relating to "administration of medication issue, the principles of res judicata apply and
that portion of the Application should be dismissed.41. If however, the Commission does not consider that the principles of res judicata apply, then alternatively, UPA submits that the facts as alleged and the matters raised by Mrs Grabovsky in the Proceedings and the preceding decision of VP Lawler are identical and enliven the principles of estoppel.
42. In Ramsav-v- Pigram, Barwick CJ stated at [7]:
"Long standing authorities in my opinion warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. Of its nature such an estoppel must be available to and operative in respect of each party; or, as it is said, estoppels must be mutual'.
43. It is further submitted that in relation to this portion of the Proceedings, there is a "cause of action" estoppel or otherwise issue estoppel with respect to the very matters for which Mrs Grabovsky now asks the Commission to make a determination in the Application.
44. Further UPA submits that the fact that Mrs Grabovsky is again asking the
Commission to effectively re-visit a previous decision that was so overwhelmingly affirmed on appeal to the Full Bench, also results in the requirement for UPA to respond to the Application, which is oppressive and thereby an abuse of process.45. In PNJ -v- The Queen High Court considered the issue of abuse of process:
,
"It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics:
(a) the invoking of a court's processes for an illegitimate or collateral purpose;
(b) the use of the court's procedures would be unjustifiably oppressive to a party; or
(c) the use of the court's procedures would bring the administration of justice into disrepute".
46. In the present circumstances, to allow the Proceedings to continue would be "unjustifiably oppressive" to the Respondent and as such, the Proceedings should be dismissed.”
Mr Grabovsky submitted that,[21]
“4.2 Addressing ground 4.1 (i). I must state that the UPA·s refusal tor the FWC to arbitrate the work load management dispute does not constitute a ground for jurisdictional objection.
4.3 The Applicant did instigate a proceeding under sec. 739 of the Act 2009 that states:
Sec. 739 Disputes dealt with by the FWC
(1) This section applies if a term referred to in section 738* requires or allows the
FWC to deal with a dispute.(5) Despite subsection (4), the FWC must not make a decision* that is inconsistent with this Act* or a fair work instrument/hat applies to the parties...
* My emphasis
4.4 Following provisions of the Sec. 739(1) let's see what Sec. 738 Application of this
Division (Subdivision B- Dealing with disputes) states:
This Division applies if:
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6) *;
* My emphasis
4.5 Following provisions of the Sec. 738 (b) let's see what Subsection 186(6) of the Act 2009 states:
Requirement for a term about settling disputes
(6) The FWC must be staisfid 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*; und
(ii) in relation to the National Employment Standards*; and
(b) that allows for the representation of employees covered by the agreement for the purposes of that procedure...
* My emphasis
4.6 It is obvious on the face of statute that the UPA Enterprise Agreement is in conflict with the Act 2009.
For the UPA 's refusal (to consent to arbitration of workload management) to be considered as a jurisdictional objection, the U PA must provide objectively recognisable proof that its refusal is in compliance with statute. The UPA cannot provide such proof.
4.7 The fact (the Applicant does not dispute it) that the Enterprise Agreement was approved by the FWC does not provide ground for a jurisdictional objection either.
The UPA must prove that the FWC has the authority, power and jurisdiction to approve the Enterprise Agreement which overrides provisions of the Act 2009 and only then the UPA 's refusal to consent to arbitration will constitute a jurisdictional objection.
The UPA cannot provide such proof'.4.8 Ground 4.1 (i) is not a valid ground: neither for the purpose of a jurisdictional objection nor for the purpose of sec. 587 of the Act 2009.
4.9 Information provided within paragraph s 4.1 (ii) and (iii) above (para. 2 and 3 of section 2.2 of the Wrong Application) belong to another ground, where the U PA submits that the matter C2017/7037 should be dismissed in accordance with the principles of res judcata.
4.10 For the Commission to deal with this ground, the Respondent must refer to the provision of the applicable law within jurisdiction of the FWC (e.g. Act 2009, WHS Act 2011, etc.) that would give the Commission any power or authority to deal with the principle of res judicata. The UPA cannot provide such reference.
The Commission is a statutory agency established by the Fair Work Act 2009 and, as a tribunal, the FWC’s functions and powers are limited by the terms of that Act. Whether the principle of res judicata is applicable to the matter C2017/7037 or not determination of the validity of this ground lies outside the jurisdiction of the FWC.
4.11 Because the Commission had never arbitrated the factual and legal dispute of the workload management*, application of the principle of res judicata for the matter C201717037 is not warranted by circumstances.
* Decision of Booth DP to uphold jurisdictional objection to arbitrate Workload management dispute and Decision of the Full Bench to refuse an appeal of Booth DP decision do not constitute arbitration of the factual and legal dispute that confirms the legal position of the Applicant
If the Respondent wishes to pursue the argument on the ground of res judicata, the
Respondent must instigate a legal procedure in appropriate jurisdiction.
4.12 Since the circumstances of the matter C2017/7037 and jurisdiction of the FWC do not provide for dealing with the principle of res judicata, ground 4.1(iv) is not a valid ground: neither for the purpose of jurisdictional objection nor for the purpose of sec. 587 of the Act 2009.
4.13 In the same paragraph 4.1 (iv) (ground 4 of the Wrong application) the Respondent is asking the Commission to issue estoppel.
The FWC has no power, jurisdiction or authority to issue estoppels for the same reasons as describe in paragraphs 4.10 to 4.1 2 above.
4.14 Also, I would like to point to the fact that Collateral estoppels are not applicable to the cases of statute law*.
* The Applicant’s claims are based on statute law and not on case (common) law
In the matters of statute law, any litigant may claim compensation for as long as statute and provable grounds allow the applicant/plaintiff to do so.
4.15 In conclusion I would like to address the Respondent’s remark made in Ground 4 of its application where the UPA states that·'... and othe1wise represents an abuse of process:
Since the Respondent’s submissions do not address issues for which they arc purported to be made - it is the Respondent, who is abusing the process.”
At the hearing on 17 September 2018 Mr Grabovsky said he was participating under protest because he had previously objected to me participating in the matter and I had declined to recuse myself. I patiently listened to Mr Grabovsky’s long opening statement in which he made allegations against members of the Commission, the Federal Court of Australia, the High Court of Australia, the former Attorney General and, for completeness, the Governor General. None of those matters were relevant to the dispute before me. Mr Grabovsky then made another application for me to recuse myself. Having heard argument from both parties I declined to do so. Mr Grabvosky then asked that I adjourn the hearing. In the interests of performing my functions in a manner that was “quick, informal and avoids unnecessary technicalities” (section 577 of the FW Act), I declined to do so. Mr Grabovsky then refused to further participate in the hearing other than as an observer. However, later Mr Grabovsky continued to advocate in the matter on behalf of the Applicant and make further substantive submissions.
In deciding whether the principles akin to res judicata apply in the present matter it is necessary to compare the present matter with the matter resulting in the Booth Decision and the Lawler Decision:
| C2014/3313 (Booth Decision) | C2014/3313 (Lawler Decision) | C2017/7037 | |
| Applicant | Inna Grabovsky | Inna Grabovsky | Inna Grabovsky |
| Respondent | United Protestant Association | United Protestant Association | United Protestant Association |
| Relevant agreement | 2011 Agreement | 2011 Agreement | 2014 Agreement |
| Contested clauses | Clause 33 Workload Management | Clause 36 Workload Management | |
| Clause 42 Grievance and Dispute Resolution Procedures | Clause 43 Grievance and Dispute Resolution Procedures | ||
| Schedule A, CSE-2 classification in the 2011 Agreement. | Under the guise of a claim that the Applicant “was grossly underpaid” – Schedule A, CSE-2 in the 2014 Agreement. |
In the Booth Decision her Honour held that,
“[21] I consider that it is patently clear from the wording of clause 33 and clause 42 that the Agreement does not provide for the Commission to arbitrate in relation to a dispute about workloads other than with the consent of both parties. Clause 33 makes this clear when it states:
33.4 If the issue is still unresolved, the employee/s may advance the matter through Clause 42 - Grievance and Disputes Resolution Procedures. Arbitration of workload management issues may only occur by agreement of all parties. (my emphasis)
[22] And clause 42.6 is also unambiguous. It states:
42.6 The parties agree that FWA shall have the power to do all such things as are necessary for the just resolution of the dispute including:
(a) mediation, conciliation and, with the exception of disputes arising under clause 33 – Workload Management, arbitration; (my emphasis) and
(b) arbitration, for disputes arising under clause 33 – Workload management, only with the agreement of the parties. (my emphasis)
[23] The submissions made on behalf of Mrs Grabovsky concerning the effect of s.739 and s.185 of the Act are, as submitted by UPA, misconceived.
[24] In any matter before the Commission the Tribunal Member is required to consider, implicitly or explicitly, whether they have the jurisdiction to deal with the matter. The source of the Commission’s jurisdiction is the Act.
[25] A Full Bench of FWA, as it then was, in the case Woolworths Ltd trading as Produce and Recycling Distribution Centre (the Woolworths case) provided a cogent explanation of the source of the Commission’s jurisdiction in relation to dispute resolution procedures. This decision answers both points of Mrs Grabovsky’s submission. The Full Bench was addressing whether an enterprise agreement could be approved when the dispute resolution procedure contained in the agreement required the parties’ agreement to arbitrate a dispute on a case by case basis and they found that it could.
[26] Their outline and comments on the relevant sections of the Act provide guidance in this matter.
[27] At paragraphs 17 - 23 they say:
“[17] We turn first to some important elements of the statutory scheme which provide the context in which s.186(6) must be interpreted. Section 595 sets out Fair Work Australia’s power to deal with disputes generally and ss.738 and 739 set out Fair Work Australia’s powers to deal with dispute resolution terms in, relevantly, enterprise agreements.
[18] Section 595 of the Fair Work Act reads:
“595 FWA’s power to deal with disputes
(1) FWA may deal with a dispute only if FWA is expresslyauthorised to do so under or in accordance with another provision of this Act.
(2) FWA may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:
(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.
(3) FWA may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if FWA is expresslyauthorised to do so under or in accordance with another provision of this Act.
Example: Parties may consent to FWA arbitrating a bargaining dispute (see subsection 240(4)).
(4) In dealing with a dispute, FWA may exercise any powers it has under this Subdivision.
Example: FWA could direct a person to attend a conference under section 592.
(5) To avoid doubt, FWA must not exercise any of the powers referred to in subsection (2) or (3) in relation to a matter before FWA except as authorised by this section.”
[19] The section is concerned with the powers the tribunal may exercise in dealing with disputes. Section 595(1) provides that Fair Work Australia may only deal with a dispute if it is expressly authorised to do so. Section 595(2) provides that the tribunal may deal with a dispute by mediation, conciliation, making a recommendation or expressing an opinion subject to the qualification that it may not deal with the dispute by arbitration. Section 595(3) permits the tribunal to arbitrate if it is expressly authorised to do so. Section 595(4) operates to confer procedural powers. It seems to us clear enough from the text of these provisions that the legislature intended that Fair Work Australia can deploy voluntary methods of dispute resolution without the consent of the parties to the dispute, provided the dispute is one with which it is authorised to deal, but can only arbitrate if it has been specifically empowered to do so.
[20] Sections 738 and 739 are also directly relevant. They provide:
“738 Application of this Division
This Division applies if:
(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or
(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or
(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or
(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.
739 Disputes dealt with by FWA
(1) This section applies if a term referred to in section 738 requires or allows FWA to deal with a dispute.
(2) FWA must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65 (5) or 76 (4), unless:
(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to FWA dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises FWA to deal with the matter.
Note: This does not prevent FWA from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).
(3) In dealing with a dispute, FWA must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that FWA may arbitrate (however described) the dispute, FWA may do so.
Note: FWA may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).
(5) Despite subsection (4), FWA must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
(6) FWA may deal with a dispute only on application by a party to the dispute.”
[21] Section 738 specifies the type of dispute resolution terms to which the division applies. Section 738(b) makes it clear that the division applies in relation to a dispute resolution procedure of the kind described in s.186(6). Section 739(1) provides that the section applies if a term in s.738 requires or allows Fair Work Australia to deal with a dispute. Section 739(2) is not relevant. Section 739(3) provides that a dispute resolution term can limit the powers available to Fair Work Australia to settle a dispute. Section 739(4) sets out the circumstances in which Fair Work Australia may arbitrate a dispute, providing that if the parties have agreed that Fair Work Australia may arbitrate, Fair Work Australia may do so. It appears to us that s.739(4) strongly implies the negative stipulation that if the parties have not agreed, Fair Work Australia has no power to arbitrate.
[22] The operation of these provisions in relation to dispute resolution terms in enterprise agreements is specifically referred to in the Explanatory Memorandum to the Fair Work Bill 2008. We refer first to paragraph 2290. That paragraph deals with the relationship between s.595 and s.739. It reads:
“2290. Sub clause 595(4) ensures that, when FWA is dealing with any of these disputes, FWA can exercise any of its powers under Subdivision B. For example, FWA could direct a person to attend a conference under clause 592. However, there is an exception for Part 6-2 disputes. The procedure in the modern award, enterprise agreement, workplace determination or contract of employment can limit the powers that FWA can exercise in dealing with the dispute (see sub clause 739(3)).”
[23] This paragraph repeats the direct indication in s.739(3) that a dispute resolution term might limit the powers otherwise available to Fair Work Australia. It appears from the reference to s.595(4) that the paragraph is primarily referring to the procedural powers conferred by Subdivision B rather than the power to arbitrate Relevantly, (sic) however, the concluding sentence of the paragraph supports the implication in the words of s.739(4) that in the absence of agreement Fair Work Australia has no power to arbitrate. If the legislature has specifically provided for limits upon the use of arbitral power pursuant to dispute resolution procedures, it is difficult to see how the conclusion could be sustained that “arbitration is a prerequisite to the approval of an agreement.”
[28] This case is authority for the proposition that to be approved, although an enterprise agreement must contain a procedure to settle disputes (s.186), the terms of the procedure are defined by the agreement. In exercising the power of arbitration s.739 of the Act empowers the Commission to act only in accordance with the terms of the procedure.
[29] The decision of the Full Bench of the Commission in Warkworth Mining Limited v Construction, Forestry, Mining and Energy Union is also authority for this proposition.
[30] In this decision the Full Bench at paragraphs 19 and 23 said:
“[19] In our opinion the starting point for Commissioner Wilks should have been a consideration of the terms of the dispute settlement procedure and a decision about what it “empowered” the Commission to do. In this consideration one does not commence with a presumption that the Commission will have been empowered to undertake any particular role, be it conciliation and/or arbitration. The question is what the parties to the agreement have decided the role of the Commission will be, which role ideally will have made clear in the words used in the relevant clause.”
“[23] The appellant submitted the Commissioner should have found that whatever may have been the agreed role for the Commission, it was not arbitration. It submits that was the only enquiry that needed to have been undertaken and only the words used in clause 16 were relevant to that enquiry. It is of course appropriate when construing a provision in an agreement to do so together with a consideration of the other provisions of the agreement and the structure of the agreement. This approach is referred to as construing a particular clause in the context of the agreement as a whole. It was permissible for the Commissioner, when interpreting the provisions of clause 16, to consider the agreement as a whole.....”
These decisions of the Commission have made it clear that the Commission may only exercise the powers given to it by the parties to the agreement and that an enterprise agreement can be approved by the Commission notwithstanding the agreement requires consent for the Commission to settle some or all matters by arbitration. The submissions made on behalf of Mrs Grabovsky’s are at odds with both of these propositions and accordingly must fail.
[31] UPA’s jurisdictional objection to the Commission arbitrating in respect to workloads is upheld.”
On appeal the Full Bench held that,[22]
“[13] It is clear from the Agreement (see clause 33.4 and clause 42.6(a)) that there must be agreement by the parties before arbitration of a dispute about workload management issues can be effected. The respondent has indicated that it does not consent to the Commission arbitrating any dispute concerning workload management issues. It is also clear from the relevant provisions of the Act that the Commission may arbitrate only in relation to a dispute under a dispute resolution procedure in an enterprise agreement where it is expressly authorised to do so.
[14] It has not been shown in the appeal that the relevant provisions of the Agreement are unlawful, either within the meaning of s.194 of the Act or because of any conflict with the provisions of the Work Health and Safety Act 2011 (Cth).
[15] An appeal under s.604 of the Act may be pursued only with the permission of the Commission. Section 604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so.
[16] We do not consider that the applicant has in the present matter demonstrated an arguable case as to appealable error in relation to the decision of the Deputy President. The Deputy President correctly interpreted the relevant clauses of the Agreement and correctly determined that there was no power in the Commission to arbitrate with respect to the workload issue given the objection by the respondent.
[17] Further, it has not been demonstrated that there are any matters raised by the appeal such that it would be in the public interest to grant permission to appeal.”
Permission to appeal was not granted.
In the present matter the application is made under the 2014 Agreement and not the 2011 Agreement (although the events in question still relate to a time when the 2011 Agreement applied). However, that is the only difference between the proceedings that led to the Booth Decision and the Lawler Decision and the matter before me. As has already been demonstrated the contested clauses in the respective agreements are the same or materially so. It would visit a great injustice on the UPA if any decision I made contradicted the decisions already made about the same clauses and in respect of which appeal rights have been exhausted.
What was patently clear to her Honour Deputy President Booth (and in respect of which permission to appeal was not granted) is equally patently clear to me. In the absence of agreement from the UPA concerning Workload Management being arbitrated the Commission has no power to arbitrate the same.
For the above reasons, the Commission, as presently constituted, is satisfied that the principles akin to res judicata ought to be applied and, consequently, the application in C2017/7037, in so far as it is based on a dispute about Workload Management, must be dismissed. It has no reasonable prospects of success.
However, if I am wrong that the principles akin to res judicata can be invoked in the present matter I would, in any case, dismiss the application in C2017/7037 because I am satisfied that the Commission does not have jurisdiction to deal with the matter in circumstances, such as the present, where the UPA has not agreed to arbitration.
Turning then to the underpayment claim (i.e. the claim of misclassification), in the Lawler Decision his Honour observed and then held as follows,[23]
“[2] At its heart, the dispute relates to the proper classification of the Applicant, Mrs Grabovsky, in relation to the work performed by her at a facility operated by the Respondent in Wahroonga NSW.
[3] That facility has three separate areas, a dementia unit, a high care unit, and an ordinary aged care unit known as Rosetta in which Mrs Grabovsky worked for about a decade.
[4] Mrs Grabovsky’s employment was initially casual, but after several months she was offered a permanent position. There was a letter of offer which did not specify the classification in which Mrs Grabovsky was employed. However, details from the Respondent’s payroll system, along with pay records covering an extended period, demonstrate that the Respondent had classified Mrs Grabovsky as a Care Service Employee Grade 2, and paid her as such, for the whole of the period of her employment.
[5] Mr Grabovsky has played a very significant role in relation to the present dispute. He investigated the issue of Mrs Grabovsky’s entitlements and proper classification and came to the firm view that Mrs Grabovsky had been incorrectly classified since the commencement of her employment and thus underpaid for the whole period of her employment. More importantly, Mr Grabovsky also came to the firm view that the Respondent could not lawfully require a Care Service Employee Grade 2, like Mrs Grabovsky, to undertake “the administration of medication” as part of their duties.
[6] Convinced of the correctness of those conclusions, Mr Grabovsky urged his wife to refuse to administer medication to residents on the basis that it was not properly within her job classification to do so and, indeed, that it was somehow illegal for her to do so.
[7] Mrs Grabovsky acted on those urgings and refused to perform the contentious duties. Her manager, the Director of Nursing, issued a formal warning in relation to that refusal on the basis that it constituted a refusal to perform work in accordance with the reasonable direction of her employer. Mrs Grabovsky was facing the prospect of disciplinary action if she continued to refuse to comply with the Respondent’s direction that she administer medication to patients in the fashion that she had done for the preceding 10 years. It seems that these events placed enormous stress on Mrs Grabovsky: a few days later she collapsed at work and was transported to hospital in an ambulance. Mrs Grabovsky suffered some form of mental breakdown from which she has not recovered. She did not return to work and has been on workers compensation ever since. The refusal to perform the directed duties appears to have been the proximate causal event that led to the catastrophic consequence of Mrs Grabovsky’s debilitating mental condition.
[8] Mrs Grabovsky has never appeared, or been present, during any mention or hearing of the present matter. At all times she has been represented by Mr Grabovsky on the basis that Mrs Grabovsky’s mental state is such that she cannot safely play any part in the proceedings. The Respondent, and the Commission, have accepted that position without requiring medical evidence to support it and Mr Grabovsky has been allowed to represent his wife, and present her case as her representative.
[9] At the time of the hearing, Mr Grabovsky contended on his wife’s behalf that her proper classification was as a Care Service Employee Grade 3 and that, further, the duties she was required to perform involving the “administration of medication” fell within the classification Care Service Employee Grade 4, Level 2 and that, although Mrs Grabovsky did not hold a qualification necessary to be classified at that level, she nevertheless had been required to perform the work of the classification and was therefore entitled to “higher duties” under the Agreement.
Webster packs
[10] Many residents in nursing homes find themselves prescribed with a range of medications by their treating doctor(s). It is important that residents take the correct medication at the times determined by their treating doctor(s). A device known as a “Webster pack” is in almost universal use to assist residents to ensure that they comply properly with their medication regime.
[11] A Webster pack contains a series of blisters into which a pharmacist places all of the tablets/capsules of medication that a particular resident is required to take over a specified period (usually a week) in accordance with the prescriptions prepared by the resident’s treating doctor. All of the tablets/capsules that the resident must take at a particular time (for example in the morning, at lunch, at dinner or in the evening), on a particular day, are contained within a single blister bubble. The bubbles are ordered so that they can be broken successively over the period covered by the pack. Each bubble is labelled to indicate the day and time that the contents of the blister bubble should be consumed by the resident.
[12] A Webster pack, once prepared by a pharmacist for a particular resident, will contain all of the tablets or capsules of medication that the resident should consume in the period covered by the pack. If a resident consumes all of the pills in each bubble successively at the nominated time, the resident will receive their correct medication, at the correct time for the entire period covered by the pack.
[13] A Webster pack avoids the need for a person – whether an employee like Mrs Grabovsky, or the resident themselves – having to turn their mind to which tablets/capsules of medication need to be taken at various times throughout each day. It greatly reduces the risk that the patient will miss taking required medication, or will take the wrong medication.
The fundamental issue
[14] It is trite that when there is a dispute over the proper classification of an employee, that dispute is resolved by ascertaining the work performed by the employee and then comparing that work to the classification descriptions in the applicable industrial instrument, construed in accordance with the established principles of construction for industrial instruments.
[15] In the early stages of the matter, Mr Grabovsky also contended that Mrs Grabovsky was entitled to classification as a Care Service Employee Grade 3 by virtue of the undisputed fact that she held a Certificate III qualification in aged care. That contention was expressly abandoned by Mr Grabovsky at the hearing. That concession was properly made. There is nothing in the terms of the Agreement which would require the Respondent to classify a Care Service Employee at the Grade 3 level by virtue of the mere fact that the employee holds a Certificate III qualification in aged care.
[16] Mr Grabovsky contends that his wife was required to perform work that was properly within the Care Service Employee Grade 3 classification and, accordingly, that she should have been employed in that classification from the outset of her employment. He further alleges that this “under classification” of his wife was done deliberately and involved continuing deception and exploitation on the part of the Respondent.
[17] There is a subsidiary argument based on the percentage of patients with high care needs.
[18] At the end of the day, it became clear that the fundamental contention was whether the duties performed by Mrs Grabovsky in connection with the “administration of medication” to residents were duties that fell within the classification description for a Care Service Employee Grade 2 and could properly be performed by an employee in that classification.
The contentious duties[19] It was only with some difficulty that Mr Grabovsky was induced to adopt a position on precisely what duties he relied upon in that regard. 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.
[21] Mr Grabovsky characterises these duties as amounting to “the administration of medication to a resident”. Mr Grabovsky contends, fundamentally, that “the administration of medication to a resident” is not a duty that falls within the duties specified in the classification description for a Care Service Employee Grade 2 and, indeed, that it is unlawful for the Respondent to require this of such an employee.
The classification descriptions in the Agreement[22] The classification descriptions for a Care Service Employees in the Agreement are as follows:
….[23] There is no dispute that Mrs Grabovsky was in the “Care Stream”.
[24] The principles governing the construction of industrial instruments are well established (see, for example, the collection in Watson v ACT Department of Disability Housing and Community Services (2008) 171 IR 392 at [8] - [14].
[25] The classification descriptions in the Agreement cannot be construed in isolation. They must be construed in the context of the Agreement as a whole.
Whether the contentious duties fell within the duties of a Care Service Employee Grade 2?[26] On any view, a Webster pack is a “medication compliance aid”. That is the very essence of its purpose. I find that an inhaler and a medication patch are each medication compliance aids”. They are designed to deliver a measured amount of the medication contained within the inhaler or incorporated into the medication patch.
[27] Dispensing a blister of tablets/capsules of medication from a Webster pack, in the manner described in paragraph [19](a), falls within the ordinary and natural meaning of the expression “assist and support residents with medication utilising medication compliance aid”.
[28] There is nothing in the balance of the Agreement that suggests a different construction should be adopted.
[29] There was no extrinsic evidence of the kind conventionally led in disputes over the proper construction of an enterprise agreement (e.g. drafts, correspondence between the negotiating parties as to the intent of particular words and other evidence going to the factual matrix existing at the time the agreement was made).
[30] The classification description for Care Service Employee Grade 2 contains a list of “indicative tasks” specified by a non-exhaustive description of the duties it covers (as indicated by the word “including”). On any practical approach to the construction of the classification description, the dispensing of medication in the manner described in paragraph [19](b). It would be an absurd construction that held that the dispensing of medication in the manner described in paragraph [19](a) is within the classification description, but the dispensing of medication in the manner described in paragraph [19](b) is not within the classification description. In any event, it is a duty that is substantially similar to one of the specified “indicative tasks” and thus comes within the “inclusive” definition. The duties involving an inhaler or medication patch are similarly within that classification description.
[31] If Mr Grabovsky’s arguments are correct, and the administration of medication utilising “a medical compliance aid” like a Webster pack cannot be performed by an employee in the classification Care Service Employee Grade 2, then the expression “assist and support residents with medication utilising medication compliance aid” in the “indicative tasks” list in the definition would not have a sensible and practical operation. That is clearly at odds with the intention, objectively determined, of the framers of the classification description for a Care Service Employee Grade 2 and with the required practical approach to the construction of that classification description.
The fundamental error in Grabovsky’s contentions[32] In the early stages of the hearing, Mr Grabovsky’s arguments appeared to depend critically upon a proposition, as a suppressed major premise, that if a duty undertaken by an employee can properly be described as involving “the administration of medication” to a resident, then the duty cannot be within the duties of a Care Service Employee Grade 2 under the Agreement, irrespective of the terms of the classification description for a Care Service Employee Grade 2.
[33] On the final day, Mr Grabovsky did not wish to be heard to argue that the disputed duties, in particular assisting a resident to take medication from a Webster pack, did not fall within the ordinary meaning of the expression. Rather his primary contention was that “the administration of medication” by an employee in a Care Service Employee Grade 2 classification was unlawful, irrespective of the terms of the classification definition for that classification.
[34] It may be accepted that the terms of an enterprise agreement made under the Fair Work Act 2009 (or its predecessors) cannot render lawful something that is expressly rendered unlawful by legislation or the general law. Specifically, a classification description in an enterprise agreement cannot render lawful something that is prohibited by statute or a general law criminal offence.
[35] Thus, Mr Grabovsky’s contention would be correct if the Agreement was made in the context of an applicable statutory regime that prohibited, for example, the administration of medication to a resident in a nursing home by anyone other than a qualified nurse or medical practitioner.
[36] However, there is no such legislation or general law criminal prohibition that operates in relation to the Respondent’s facilities covered by the Agreement. Mr Grabovsky could point to none. The Poisons and Therapeutic Goods 1966 Act (NSW) contains various prohibitions, but none of the kind contended for by Mr Grabovsky.
[37] Mr Grabovsky placed reliance on a number of documents including:
(a) a document entitled Management of Medicines in Aged Care issued by the Australian Nursing and Midwifery Federation;
(b) a certificate of registration issued by the Australian Health Practitioner Regulation Agency in respect of an individual enrolled nurse – bearing a notation that the individual was not endorsed to administer medication.
[38] Those documents do not establish a legal prohibition on a Care Service Employee Grade 2 performing the contentious duties. Again, such a prohibition can only arise by operation of statute or the general law which must be identified if it is to be acted upon.
[39] The AHPRA certificate for an individual enrolled nurse is not evidence that a Care Service Employee Grade 2 is somehow prohibited from administering medication under any circumstance. The significance or otherwise of that endorsement referred to in the certificate was not demonstrated by reference to any evidence that explained is origin or significance, of any statutory prohibitions to which it may or may not have been related.
[40] Moreover, the mere fact that an enrolled nurse may need an endorsement to administer medication is not incompatible with a Certificate III Care Service Employee Grade 2 employee being free of any prohibition on administering medication if they have received appropriate training (which I find on the evidence Mrs Grabovsky to have received).
[41] On the established principles of construction, documents of the kind relied upon by Mr Grabovsky have no role in the proper construction of the Agreement, certainly in the absence of any extrinsic evidence that placed those documents in the midst of the negotiations. There is no evidence for that improbability. In particular, those documents – a publication prepared by a professional association, or a “guideline” produced by a government agency cannot form a basis for a construction of the Agreement in a fashion that is at odds with the ordinary and natural meaning of the words in a classification description, or some other meaning, dictated by the practical approach mandated by the established principles for the construction of industrial instruments.
[42] Mr Grabovsky relied upon a policy document entitled “Guiding Principles for medication management in residential aged care facilities” issued by Commonwealth of Australia Department of Health and Ageing in 2012. On the evidence, that document is irrelevant to the proper construction of the Agreement. In any event, it expressly recognises that care service employees may administer medication if they have been given the appropriate training and accepted the delegation. On the evidence, these Guidelines had, in any event, been satisfied by the Respondent. Mrs Grabovsky had received appropriate training and general supervision. For 10 years she had accepted the delegation. The Respondent reasonably treats acceptance of the delegation as a requirement for employment as a Care Service Employee Grade 2.
[43] For all these reasons, I find that the contentious duties fall within the classification description for Care Service Employee Grade 2 on its proper construction.
[44] It is irrelevant that the contentious duties can also properly be described, as a matter of ordinary English usage, or in some fashion specified in documents of the sort relied upon by Mr Grabovsky, as “the administration of medication”. There was nothing that rendered it unlawful for the Respondent to require Mrs Grabovsky to perform the contentious duties. The refusal of Mrs Grabovsky to perform the contentious duties was misconceived and the direction given to her to perform those duties was lawful and the warning given to her was objectively justified.
Care Service Employee Grade 3 arguments[45] Mr Grabovsky contended that his wife had in fact supervised the work of others and that, since she held a Certificate Level III in Aged Care Work, she should have been classified at Care Service Employee Grade 3.
[46] On the evidence, Mrs Grabovsky had not been “designated by the employer as having responsibility for leading and/or supervising the work of others” and she had not been “designated by the employer as having overall responsibility for a particular function within the residential aged care facility”. On the plain words of the classification description, neither of the requirements in (a) or (b) were met in Mrs Grabovsky’s case. The argument that Mrs Grabovsky was wrongly classified on account of the “supervision” work she was performing is without substance.
On appeal the Full Bench observed and then held that,[24]
“[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:
handing an inhaler to a resident; and
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? ...
[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.”
As is apparent from comparing the classification structures in the 2011 Agreement and the 2014 Agreement, that they are substantially the same. Consequently, noting that the events complained about occurred during the currency of the 2011 Agreement there is nothing new in the evidence that would justify a reconsideration of the matters decided by Vice President Lawler (a decision not disturbed on appeal).
For these reasons, the Commission, as presently constituted, is satisfied that principles akin to res judicata ought to be applied and, consequently, the application in C2017/7037 in so far as it is based on a dispute about Mrs Grabovsky’s classification must be dismissed.
Because principles akin to res judicata apply I am further satisfied that the application should be dismissed on the basis that it has no reasonable prospects of success under s.587(1)(c) of the FW Act.
Interim Orders application
In addition to the substantive application on a number of occasions,[25] Mr Grabovsky urged the Commission to make interim orders to the following effect:
“Pursuant to sec. 589(2) and (3)(b) of the Fair Work Act 2009 you are ORDERED to comply with to sec.19(2) and sec.44 of the Work Health and Safety Act 2011 and ensure that administration of medication is performed by formally qualified and registered with Australian Health Practitioner Regulation Agency personnel in compliance with sec.94 of the Health Practitioner Regulation National Law 2009, and Nursing Guidelines: Management of Medicines in Aged Care issued by the Australian Nursing &Midwifery Federation and Guiding Principles for Medication Management in Residential Aged Care Facilities issued by the Commonwealth Department of Health and Ageing.”
Because I have already decided that the application should be dismissed because it has no reasonable prospects of success it is not necessary for me to decide the application for interim orders.
However, for completeness I observe that, had I been required to decide the application for interim orders I would have dismissed the application.
Section 589 of the Act provides that the Commission may make procedural and interim decisions, as follows:
“589 Procedural and interim decisions
(1) The FWC may make decisions as to how, when and where a matter is to be dealt with.
(2) The FWC may make an interim decision in relation to a matter before it.
(3) The FWC may make a decision under this section:
(a) on its own initiative; or
(b) on application.
(4) This section does not limit the FWC’s power to make decisions.”
The principles relevant to the making of interim orders are well established.[26] In summary, the Commission must determine if there is a serious issue to be tried and where the balance of convenience lies, having regard to the nature of the substantive application, the jurisdictional context in which the application is being considered, and the circumstances of the parties.[27]
An applicant for interim orders does not need to demonstrate that it is more probable than not they will succeed but rather whether there is a sufficient likelihood of success to justify the preservation of the status quo pending trial. In relation to the balance of convenience, it is relevant to consider whether inconvenience or injury to the applicant from a refusal to issue an interim order outweighs the injury the respondent would suffer if such an order were granted.[28]
At the hearing before me on 17 September 2018 Mr Grabovsky rejected principles set out above. However, having been invited to do so Mr Grabvosky was unable to take me to any authority that stands for the proposition that I should not seek to determine if there is a serious issue to be tried and where the balance of convenience lies. Consequently, I adopt those well-established principles.
Serious question to be tried
The approach endorsed by the Commission in CEPU v Telstra[29] adopted the formula set out within Castlemaine Tooheys v South Australia to the effect that “there is a serious question to be tried or that the plaintiff has made a prima facie case, in the sense that if the evidence remains as it is there is a probability at the trial of the action the plaintiff will be held entitled to relief”.[30]
In the present matter the Agreement confers jurisdiction on the Commission to resolve disputes other than those about workload management issues.
At any substantive hearing of the matter it would be necessary to interpret the Agreement having regard to the principles in AMWU v Berri.[31] However, even at this preliminary stage it is possible to discern that the 2014 Agreement (like the 2011 Agreement) is clear in its terms and unambiguous. Consequently, any substantive hearing would result in determinations the same as those found in the Booth Decision and Lawler Decision. Both decisions were undisturbed on appeal. For the avoidance of doubt, subject to noting that the 2014 Agreement now applies, I adopt the reasoning of Deputy President Booth in the Booth Decision and that of Vice President Lawler in the Lawler Decision.
Mr Grabovsky submitted that,[32]
“1.2 Being the Commonwealth statutory agency, the Commission is established by the Fair Work Act 2009. Also a number of other Acts is within jurisdiction of the FWC and the Work Health and Safety Act 2011 (''the WHS Act") is among them.
….
1.3 ln discharging its statutory duties as the national workplace relations tribunal, the Commission has the power and jurisdiction to administer any Act of the Parliament that relates to a particular work place condition (in relation to a particular dispute) in order to establish compliance of the working environment with the prescribed requirements.
1.4 The FWC may not regulate under any of those Acts but the Commission may and must apply relevant provisions of any Act applicable to the workplace activities, permissions prohibitions, etc., in order to establish legitimacy of legal positions of the parties to dispute (who is right and who is wrong).”
I reject that submission. The powers and authority of the Commission are regulated by the FW Act. Consequently, the UPA is correct in its submission that the Commission had no jurisdiction in relation to the administration of the Work Health and Safety Act 2011 (NSW).
Mr Grabovsky further submitted that,
“1 .11 The agreement (Enterprise Agreement) excludes and modifies sections 19 and 44 of the WHS Act. The agreement is under jurisdiction of the FWC so the Commission does not only have the jurisdiction to issue the Order, but is obligated to enforce compliance with the WHS Act.
So it is established on the face of statute that the Commission has jurisdiction and obligation to issue the Interim Order. The Applicant's argument is objectively recognisable and, therefore, is prima facie.
The Respondent's submission in this respect is not supported with legislation; it's false, misleading, frivolous, ill-conceived and is abusing the process of determination attempting to pervert the course of justice.”
I am not satisfied that the 2014 Agreement does any such thing. There is nothing in the 2014 Agreement that purports to override the WHS Act.
For these reasons I am not satisfied that there is a serious question to be tried. In summary:
a) principles akin to res judicata ought to apply,
b) both the Booth Decision and the Lawler Decisions were undisturbed on appeal; and
c) the basis advanced by Mr Grabovsky is misconceived both in terms of the Orders sought and the contended basis for those orders.
Balance of convenience
Mr Grabovsky contends that “the Applicant is asking for the Order that will ensure that administration of medicine must be performed by the personnel who have prescribed qualifications and who are endorsed and authorised to administer medicine in compliance with applicable law. The Applicant is asking for the Order that is applicable to any care service facility in Australia that is why the Order is in the public interest.”[33] Mr Grabovsky submitted that the application for interim relief “is in the public interest because it concerns human lives and the wellbeing of a large segment of the Australian population.”
No evidence was led in support of this assertion. Mr Grabovsky’s voluminous submissions are not evidence of anything, other than evidence of his capacity to make wild unsubstantiated claims and his propensity to criticise all those who do not share his world view. For example, Mr Grabovsky made constant assertions that the legal representatives of the UPA were “completely incompetent … whose only purpose for involvement in the dispute is to pervert the course of justice”. On the contrary I was assisted in the efficient conduct of the matter by the involvement of the UPA’s legal representatives. That is why I gave them permission to represent the UPA (a decision not disturbed on appeal).
Mr Grabovsky further contended that “the Applicant does not need any “evidence”.[34] The Applicant is acting upon provisions of statute that constitute prima facie case. It means for any matter, when the FWC is upholding the application of unlawful terms, the FWC is committing another offence.” I reject the submission. Even in a hearing for interim relief the Commission is required to have regard to the evidence. At the interim hearing stage that evidence is not usually tested to the standard that it would be at the substantive hearing, but the evidence must still exist. It is instructive that, at no time in the proceedings before me, has the Applicant put on any evidence (despite Directions to do so). No witness statement has been filed by her.
Because the case advanced by the Applicant is so lacking in substance and merit, the balance of convenience cannot favour her. The Applicant is not acting in a representative capacity. Accordingly, the balance of convenience needs to be assessed as between her and the UPA. Therefore, in circumstances were the Applicant is no longer an employee of the UPA, there can be no detriment to her in not granting the orders sought.
Consequently, if I was required to decide the application for interim relief I would have dismissed it.
However, substantively I have decided that the present application is an attempt to re-litigate matters already decided by the Commission and not disturbed on appeal. Accordingly, apply principles akin to res judicata. The Commission as constituted by Deputy President Booth and Vice President Lawler were competently constituted. Consequently, the Applicant in the present matter should be prevented from asserting in these proceedings matters of fact and law contrary to that which has already been decided (and not disturbed on appeal). The parties rights and obligations having previously been decided I decline to reconsider them. The Applicant’s application therefore has no reasonable prospects of success. I dismiss the application (C2017/7037) pursuant to section 587 of the FW Act.
An Order to this effect will be issued with this decision.
Further conduct of the matter
Having decided to dismiss the application it remains outstanding to determine the UPA’s application for costs against the Applicant. However, I will defer doing so. It can be expected that the Applicant will appeal this decision (having regard to the table above at [12] it seems more likely than not the Mr Grabovsky will appeal). Accordingly, it seems prudent to await the outcome of any appeal before dealing with the question of costs. In the interim the UPA may also like to consider the utility of pursuing the Applicant for costs. It might be considered an exercise of throwing good money after bad. However, that is a matter for them. When the outcome of any appeal is known (or the time for lodging an appeal expires) my chambers will make contact with the parties.
COMMISSIONER
Appearances:
Mr I Grabovsky for the Applicant
Mr A Gotting for the Respondent
Hearing details:
17 September 2018
Sydney
<PR702642>
[1] On 15 March 2018 Deputy President Gooley determined that the effective date of dismissal was 20 December 2017, [2018] FWC 1549.
[2] Para 2.1, Form F10 filed on 20 December 2017.
[3] Mrs Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWC 2751.
[4] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWCFB 4362.
[5] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA [2014] FWC 5634.
[6] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWC 2504.
[7] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2014] FWCFB 7533.
[8] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWC 3313.
[9] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWCFB 3926.
[10] MrsInna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWC 5161.
[11] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWC 7743.
[12] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWC 1549.
[13] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWCFB 2474.
[14] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWCFB 4362.
[15] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWCFB 5891.
[16] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWCFB 2474.
[17] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2018] FWCFB 6928.
[18] Exhibit A4.
[19] Exhibit A4.
[20] Application by UPA to dismiss the proceedings dated 23 August 2018.
[21] Exhibit A1.
[22] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2014] FWCFB 7533.
[23] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWC 2504.
[24] Inna Grabovsky v United Protestant Association of NSW Ltd T/A UPA[2015] FWCFB 3926.
[25] 10 April 2018, 26 April 2018, 14 May 2018, 13 June 2018, 6 August 2018, 17 August 2018, 23 August 2018, 30 August 2018 and 12 September 2018.
[26] Australian Manufacturing Workers’ Union v WW Wedderburn Pty Ltd [2016] FWC 2260, (2016) 258 IR 12, citing Quinn v Overland [2010] FCA 799.
[27] Lynette Bayly [2017] FWC 1886.
[28] Snow [2017] FWC 6910.
[29] PR933892
[30] (1986) 161 CLR 148, 153, per Mason ACJ.
[31] [2017] FWCFB 3005.
[32] Exhibit A3.
[33] Exhibit A3.
[34] Exhibit A3.
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