Ms Joanne McCarthy v Dan Archer Medical Pty Ltd T/A Foot Biotec
[2024] FWCFB 221
•22 APRIL 2024
| [2024] FWCFB 221 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Ms Joanne McCarthy
v
Dan Archer Medical Pty Ltd T/A Foot Biotec
(C2024/1143)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 22 APRIL 2024 |
Appeal against decision [2024] FWC 361 of Commissioner Schneider at Perth on 9 February 2024 in matter number C2023/617
Ms. Joanne McCarthy (Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Act) against a decision[1] of Commissioner Schneider issued on 9 February 2024, for which permission to appeal is required.
The decision concerned an application brought by the appellant under s.739 of the Act for the Commission to deal with a dispute (Application) in accordance with the dispute settlement term in the General Retail Industry Award 2020 (Award). In the decision, the Commissioner answered one question that he had previously posed and presented to the parties and made some statements and/or recommendations regarding some, but not all, of the matters that were raised by the Appellant in her originating F10 dispute notification.
This matter was listed for hearing before the Full Bench in relation to permission to appeal only. For the reasons that follow, permission to appeal is refused.
Background to Dispute and Proceedings
The Appellant was employed as a retail employee with Dan Archer Medical Pty Ltd t/as Foot Biotec (Respondent), working in pop-up stores at various locations, from on or around 1 December 2022. During her employment, the Appellant raised several issues arising under the Award with the Respondent. Shortly after raising these issues, on or around 7 January 2023, the Appellant’s employment was terminated by the Respondent. As there was no resolution to the dispute at an internal level, the Appellant filed the Application.
In summary, the Application raised the following issues of disputation between the Appellant and the Respondent:
(a)That the Appellant was not receiving the requisite notice to change working arrangements;
(b)That the Appellant was not being rostered to have consecutive days off;
(c)That the Appellant was not receiving breaks;
(d)Whether the Appellant was properly categorised as a part-time or casual employee;
(e)Whether the Appellant was being paid the correct minimum rate of pay as a retail employee;
(f)That the Appellant was not being paid weekend penalty rates; and,
(g)The termination of the Appellant’s employment without any verbal or written warnings.
The Commission conducted two conferences between the parties in February 2023 and June 2023, but the dispute was not resolved.
On 21 July 2023 the Appellant emailed a Form F8 application to the Chambers of Commissioner Schneider alleging that she had been dismissed in contravention of the General Protections provisions of the Act. A search of the Commission’s records does not demonstrate that this application was accepted for filing or that the Commission wrote to the Appellant in response to the application.
On 21 July 2023 the Appellant resent her F10 application to the Commissioner’s Chambers with further material attached.
On 11 and 12 September 2023 the Respondent and the Applicant respectively indicated to the Commission that they consented to the dispute being arbitrated.
In accordance with directions issued on 5 October 2023, the Appellant then proposed that the following question be determined in the dispute:
'A General Protection Application, involving dismissal, due to the applicant exercising their workplace rights to have minimum standards (NES) put in place, that are covered under the General Retail Industry Award.'
The Respondent did not agree with this question and instead made an email submission regarding the substance of the dispute and stating that a General Protections claim must be lodged within 21 days of employment ending.
On 11 October 2023, the Commission wrote to the parties in the following terms:
The question proposed by the Applicant cannot be determined by the Commissioner in relation to this dispute.
The Applicant filed a Form F10 – Application for the Commission to deal with a dispute in accordance with the dispute settlement procedure. The Applicant did not file an F8 – General Protection Application – involving a dismissal. Therefore, there is no scope for the Commissioner to make any determination in relation to the Applicant being dismissed by the Respondent for raising a protected workplace right such as making an inquiry in relation to her employment conditions in relation to the NES.
The Commissioner proposes that the question for arbitration, should be along the lines of the below:
“What was the correct classification under the General Retail Industry Award that the Applicant should have been employed under during her employment with the Respondent?”
The parties are to confirm if they agree with the above draft question by 4:00PM TODAY.
The question was agreed to by the Respondent on 11 October 2023.
The Appellant wrote to the Respondent and/or the Commission three times on 11 October 2023. On the first occasion she said to the Respondent only that she did not agree with the statement and referred to her original dispute being in relation to conditions of employment and termination. Shortly thereafter she emailed Chambers and the Respondent restating the issues raised in her original application, including the allegation that she had not been paid the correct rate of pay. On the third occasion the Appellant resent her original application to the Commission and the Respondent and said, “This is the statement that after seeking further legal advice I wish to have heard at the arbitration...”.
At the hearing before the Full Bench the Appellant stated that the parties had not received a response to this correspondence, and she therefore understood that all matters in dispute in the Application would be considered by the Commission. A search of the Commission’s records does not disclose that any response was provided by the Commission to the 11 October 2023 emails of the Appellant.
A hearing was held in relation to the Application on 16 November 2023. At the commencement of the hearing of the Application the Commissioner dealt with various matters including:
(a) Whether the F8 application filed by the Appellant in July had been filed as a separate application or in support of the Application. The Appellant said that she had obtained legal advice to pursue the original dispute, that she would not be pursuing an F8 application and that she wanted the original dispute heard at the arbitration; and
(b) That the decision in relation to the Application would be in relation to the Award and compliance with the Award in relation to Ms. McCarthy’s award classification and her status as a permanent or casual employee but not the termination of the Applicant. The Appellant indicated her understanding that her dismissal would not be dealt with as part of the resolution of the Application.
Decision under Appeal
On 9 February 2024, the Commissioner published a decision, in which he characterised the dispute as follows:[2]
[5] The dispute, primarily, centres around the taxonomy of the Applicant’s employment and the associated benefits or, in the Applicant’s submission, lack thereof. The Respondent denies that the Applicant did not receive the appropriate remuneration and conditions associated with her role.
…
[18] The Applicant’s issues with the Respondent are varied and numerous. However, the Respondent’s compliance with the Award during the Applicant’s employment is central to this application and her concerns.
[19] Notably, the Applicant raised concerns in relation to the below items and allegations of the Respondent’s non-compliance with the Award:
•Rostering and hours of work;
•Request to change working arrangements;
•Roster meal and rest breaks;
•Minimum rates of payment; and
•Correct Award classification level.
The Commissioner noted in the Decision that the parties had agreed to consent arbitration to resolve the dispute and that the question to be determined in the decision was as previously proposed by the Commission.
The Commissioner then set out the relevant provisions of the Act and the dispute resolution clause and excerpts from the classifications contained at Schedule A of the Award.
The Commissioner then summarised the submissions and evidence of the parties. This included noting that the Form F8 General Protections claim had not been submitted in the usual manner and that it had only become apparent on the morning of the hearing when it was noted that it had not been received as an application for processing. It was instead characterised as part of the Appellant’s submissions given that the current matter before the Commission was a “dispute arising under the Award and National Employment Standards not a dispute in relation to Ms McCarthy’s dismissal”.
At the hearing at first instance, it is apparent that the various matters raised by the parties were canvassed or were the subject of cross-examination, together with other matters such as the reasonableness of the dismissal of the Appellant.
The Commissioner also made a series of observations and recommendations in his decision regarding:
(a) Cash handling and cash deposit practices as described in the Biotec Retail Staff Training Manual[3] and inconsistency with the duties of Level 1 Award employees;
(b) Confusion over the status of the Appellant’s engagement and whether she was a permanent full-time or part-time employee (which the Commissioner ultimately resolved by determining at [63] that she was a permanent employee and not a casual employee);
(c) Obligations under the Award being neglected during the Appellant’s employment before stating that he was not satisfied that the Respondent had complied with the totality of the Award terms[4] and that this may have resulted in an underpayment (albeit a limited one given the short duration of her employment)[5] and
(d) The content of the staff manual and its impact on working arrangements.
In the Decision, the Commissioner then answered the one question posed at the commencement of the decision as follows:
[73] Accordingly, in response to the question: “What was the correct classification under the General Retail Industry Award that the Applicant should have been employed under during her employment with the respondent?
[74] I answer, Retail Employee – Level 3.
The Commissioner also separately made a finding, at [63], that the Appellant was employed as a permanent employee and not a casual employee and recommended that the Respondent undertake an urgent review of its employment arrangements for the Appellant and its employees in general to adequately rectify the issues noted throughout the decision.
Grounds of Appeal
The appeal grounds are discursive. We do not propose to set out those grounds in full. In order to ascertain the substance of those grounds we have had regard to the Notice of Appeal, supporting documents and the oral submissions of the Appellant at the hearing of the appeal. We consider that the appeal grounds fall into the following broad categories.
The first and primary ground of appeal is that the Commission failed to deal with and determine all of the matters raised by the Appellant in the application and instead, answered a narrower question, namely the correct classification level of the Appellant under the Award. The Appellant referred to the various issues contained in the original F10 application, and the evidence provided in support of the contention that the Respondent had failed to observe the terms and conditions of the award in a number of material respects. We are of the view that this ground raises the question of whether the Commissioner erred by failing to exercise the jurisdiction available to him under the Act and conferred on him by the parties and terms of the dispute settlement clause in the Award.
The second ground of appeal relates to the alleged failure of the Commissioner to take into account relevant considerations and/or reaching conclusions on factual issues which were not available to him on the evidence. The relevant considerations referred to include the terms of the Respondent’s staff training manual, the evidence relating to the reasons for the Appellant’s termination, the evidence relating to the Appellant’s status as either a part-time or casual employee and the alleged failure of the Respondent to observe the status quo provisions of the Award dispute settlement procedure. The Appellant also contended that the Commissioner had erroneously concluded that the Appellant was not a casual employee and accepted what the Appellant characterised as the Respondent’s misrepresentation of the evidence relating to the reasons for her termination.
As we apprehend it, there is also a third ground of appeal by which the Appellant contends that the Commissioner erred by according certain procedural advantages to the Respondent and/or denying the Appellant a fair hearing. Amongst these grounds the Appellant complains that the Commissioner gave the Respondent additional time to file written submissions and allowed the Respondent to refuse to answer questions and attack the Appellant’s character.
The Respondent’s position on the appeal was that it respected the Commissioner’s findings, and that it had put into place all of the Commissioner’s recommended actions in response to those findings. Mr Zhang said that the Appellant had only worked for the Respondent for a period of five to six weeks, that she was paid in lieu of notice and had been paid all of her entitlements.
Principles – permission to appeal
There is no right to appeal and an appeal may only be made with the permission of the Commission.
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[6] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
An application for permission to appeal is not a de facto or preliminary hearing of the appeal. In determining whether permission to appeal should be granted, it is unnecessary and inappropriate for the Full Bench to conduct a detailed examination of the grounds of appeal.[7] However, it is necessary to engage with the appeal grounds to consider whether they raise an arguable case of appealable error.
Consideration
For the reasons that follow, we are not persuaded that the Appellant has demonstrated an arguable case of appealable error.
The exercise of the powers of the Commission, including the power to deal with disputes whether by arbitration or otherwise, is obviously dependent upon the existence of a source of power in the Act. In Construction, Forestry, Mining, Maritime and Energy Union & Ors v Falcon Mining Pty Ltd[8] the Full Bench said:
It is trite to say that the Commission is a creature of statute, and its powers are conferred and limited by the terms of the FW Act (or any other statute relating to its powers and functions). To the extent that it has power to arbitrate disputes, the source of that power must necessarily be located in the FW Act. Private parties cannot by agreement confer such a power on the Commission absent statutory authority to do so.
Section 595 of the Act sets out the circumstances in which the Commission may deal with disputes and the means by which disputes can be dealt with. The section provides:
595 FWC’s power to deal with disputes
(1)The FWC may deal with a dispute only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(2)The FWC 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)The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expressly authorised to do so under or in accordance with another provision of this Act.
(4)In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.
(5)To avoid doubt, the FWC must not exercise the power referred to in subsection (3) in relation to a matter before the FWC except as authorised by this section.
Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).
Provisions of the Act which expressly authorise the Commission to deal with disputes include Division 2 of Part 6-2. Section 738(a), which is found in that Part, provides that Division 2 of the Part applies if a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with s.146. Section 739 provides, relevantly:
(1) This section applies if a term referred to in s738 requires or allows the FWC to deal with a dispute.
…
(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.
(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.
(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.
Section 739(4) gives effect to an agreement by the parties to the arbitration of a dispute in accordance with a dispute resolution term in an instrument described in s.738. It is the ultimate source of jurisdiction for the Commission to arbitrate disputes under the terms of the dispute settlement procedures contained in awards and agreements. However, the Commission’s power to arbitrate is also limited by s.739(3) which prohibits the Commission from exercising any powers in the resolution of a dispute under Part 6-2 that are restricted by the term of the relevant instrument which allows or requires the Commission to deal with the dispute. As the Full Bench in Falcon Mining[9] observed, whilst the source of the jurisdiction to arbitrate disputes is the Act itself and not the instrument which contains the dispute settlement procedure, ‘in a particular case, the application of the statutory provisions will be affected by the terms of the relevant dispute resolution procedure.’[10]
The award term under which the Commission dealt with the dispute was clause 36 of the Award. That clause provides that if a dispute is unable to be resolved at the workplace and all the appropriate steps have been taken to resolve the dispute through direct discussions, then a party may refer the dispute to the Commission. Sub-clauses 36.5 and 36.6 of the award term then provide as follows:
36.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration.
36.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute.
Dispute settlement clauses in industrial instruments come in different forms. In CEPU v. Rio Tinto Aluminium Ltd t/as Rio Tinto[11] (CEPU) the Full Bench considered the dispute settlement clause of an enterprise agreement that authorised the Commission to arbitrate the matter and make a decision that was binding on the parties. The Bench described the clause, and the role of the Commission in such circumstances, as follows:
Clause 13 of the Agreement which authorised the Deputy President to arbitrate the dispute is an unrestricted power to arbitrate, limited only by the requirement to first attempt to resolve the dispute by conciliating and by s 739(5) of the Act. There is thus a conferral on the Commission of a broad discretion which is to be exercised having regard to the role of the private arbiter to determine to finality all questions of fact and law which arise for determination in the dispute.[12]
Unlike the agreement clause considered in CEPU, the Award clause does not itself manifest the agreement of the parties to submit to a process of private arbitration. Instead, it provides that the parties may agree on a process to be followed by the Commission and that such process may include consent arbitration. The clause permits consent arbitration but does not mandate that process in advance of a further agreement by the parties to submit to private arbitration. One must look beyond the terms of the award itself to find the necessary agreement between the parties and the authorisation by them for the Commission to act as a private arbiter.
In this instance we are unable to conclude that the parties agreed to the Commission arbitrating each and every issue raised by the Appellant in her dispute notification. The parties did initially each agree to participate in consent arbitration to try to resolve the dispute. However, after that occurred, the Commission ultimately posed one question to the parties that it proposed would be answered at the end of that process. The Respondent accepted the Commission’s question. The Appellant did want that question resolved but did not accept that dealing with and answering that question alone would resolve the dispute.
[42] It seems to us that had the Commission done no more than ask the parties to accept that it could resolve the dispute by private arbitration, and had the parties then consented to that course, it would have been open to the Commission to deal with the dispute by arbitrating the matters recited at [18] – [19] of the Decision. This would have been consistent with the discharge of its core duty to resolve the dispute. Once there is agreement from the parties, the Commission is able to exercise all of its powers and procedures under the Act subject to any limitation imposed by the operation of s.739(3). However, after directing the Appellant to propose a question for determination and having the Respondent reject the proposed question, the agreement to the consent arbitration no longer existed. To the extent that there was agreement for the Commission to arbitrate, that agreement was limited to the determination of the one question posed by the Commission. Both parties agreed that that matter should be determined. There was however no agreement from the Respondent that the remaining issues be determined to finality. We also observe that the Appellant does not cavil in her appeal with the answer given by the Commissioner to the question he ultimately determined. In the circumstances we are not satisfied that there is an arguable case of appealable error that the Commission failed to exercise jurisdiction in dealing with the dispute in the manner in which he did.
The second broad ground of appeal rises no higher than the Appellant expressing her disagreement with the Commissioner’s approach to the evidence and the findings that arose from that evidence. The ‘status quo’ provisions of the award clause were not expressly referred to in the decision but that was a matter raised by the Appellant as being relevant to the lawfulness of her termination, a matter which the Appellant accepted was not being pressed in the Application. The other matters referred to by the Appellant, including her status as a permanent employee, were considered by the Commissioner and the conclusions he reached were available to him on the evidence. We see no arguable case of appealable error as alleged.
Nor are we able to identify an arguable case of appealable error in relation to any alleged procedural advantage provided by the Commission to the Respondent. Each party had a reasonable opportunity to present their case, including by way of written submissions.
We appreciate that when lodging and pursuing her dispute, the Appellant held the expectation that all of her issues were going to be addressed. That this was not the case has understandably been a point of ongoing frustration for her. Ultimately, as has been acknowledged by the Appellant, the appropriate avenue for her to pursue her allegations that she had been dismissed in contravention of the General Protections provisions of the Act would have been to lodge a General Protections Involving Dismissal application within the required timeframe, which she did not.
With respect to the other matters raised in the Application, we note that whilst the Commissioner’s jurisdiction did not empower him to determine those matters, it was open to him to express his views on the dispute more generally, which he did. It also remains open to the Appellant to pursue any matters relating to underpayments or alleged breaches of the Award through the usual court processes.
Conclusion
We are not persuaded that any of the appeal grounds advanced by the Appellant disclose an arguable case of appealable error.
We have also considered whether the appeal attracts the public interest. We are not satisfied for the purposes of s.602(2), that the appeal raises any legal or factual issue of significance or general application, or that there is a diversity of decisions at first instance, or that the legal principles applied are disharmonious when compared with other decisions. We do not consider that the decision is counter-intuitive or manifests an injustice. We conclude that the public interest is not enlivened.
Order and disposition
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
Ms McCarthy for the Appellant.
Mr Zhang for the Respondent.
Hearing details:
1:00 pm (AEST) on Wednesday, 10 April 2024 by video using Microsoft Teams.
[1] [2024] FWC 361 (Decision).
[2] Decision.
[3] At [[41]-[42].
[4] At [52].
[5] At [53].
[6] Wan v AIRC (2001) 116 FCR 481 at [30].
[7] Trustee for The MTGI Trust v Johnston [2016] FCAFC 140 at [82].
[8] [2022] FWCFB 93.
[9] Construction, Forestry, Maritime, Mining and Energy Union & Ors v Falcon Mining Pty Ltd t/a Falcon Mining [2022] FWCFB 93.
[10] Op cit at [62] and [74].
[11] [2023] FWCFB 220.
[12] Ibid at [32].
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