Norman v State of Queensland (North West Hospital and Health Service)

[2016] QIRC 95

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:        

Norman v State of Queensland (North West  Hospital and Health Service) [2016] QIRC 095

PARTIES:   

Norman, Thomas
(Applicant)

v

State of Queensland (North West Hospital and Health Service)
(Respondent)

CASE NO:

B/2016/18

PROCEEDING:

Application for injunction

DELIVERED ON:

2 September 2016

HEARING DATES: 

30 August 2016, 1 September 2016

HEARD AT:

Brisbane

MEMBER:

Deputy President Swan

ORDERS

1.       The Application for an injunction is dismissed.

CATCHWORDS:

INDUSTRIAL RELATIONS ACT 1999 – APPLICATION FOR INJUNCTION – subclass 457 Visa considerations – worker's visa to expire on 3 September 2016 – identification of "employer" – Migration Act 1958 (Cth) - Migration Regulations 1994 (Cth) – Hospital and Health Boards Act 2001 (Qld) - Hospital and Health Boards Regulation 2012 (Qld) -  Grievance Dispute lodged with Service on 31 August 2016 – worker wished to be employed in an area other than the service area in which he is currently employed until 3 September 2016 – Service unable to comply with worker's request as it would be in breach of the Migration Regulations 1994 (Cth) – Grievance Dispute application futile and disingenuous in the circumstances – no breach of an industrial instrument, permit or Industrial Relations Act 1999, s 277.

CASES:

Industrial Relations Act 1999

APPEARANCES:

Ms C. Hartigan of Counsel, instructed by the Queensland Nurses Union of Employees Queensland for the Applicant.
Mr C. Murdoch of Counsel, instructed by MinterEllison, Solicitors for the Respondent.

Decision

[1]By Amended Application on 1 September 2016, Mr Thomas Norman (the Applicant) has applied to the Queensland Industrial Relations Commission (the QIRC) for an injunction pursuant to s 277 of the Industrial Relations Act 1999 (the Act) restraining the North West Hospital and Health Service (the Service) from "withdrawing its support for further Temporary Work (Skilled) ('subclass 457') Visa (subclass 457 visa) upon the expiration of the Applicant’s current Visa on 3 September 2016 until the Grievance Process commenced pursuant to clause 3.1 of the Queensland Health Nurses and Midwives Award – State 2012 is finalised".

[2]At the commencement of the hearing on 30 August 2016, the Applicant was represented by the Queensland Nurses’ Union of Employees (the QNU) and the Service by MinterEllison Lawyers in Brisbane.

[3]On the reconvened date of hearing on 1 September 2016, the amended Application had been filed and Mr Thomas Norman was represented by Counsel as was the Service.

[4]The following decision is sought by the Applicant:

"(a)the grant of an injunction pursuant to s. 277 of the IR Act; orders in the following terms:

(i)That the Respondent is hereby restrained from taking the steps as outlined in the correspondence of 17 August 2016 (attached to the amended application and marked A) withdrawing its support as the Applicant’s employer sponsor for the Applicant’s further subclass 457 Visa;

(ii)That the status quo that existed prior to 17 August 2016, being that the Service positively supported the Applicant’s subclass 457 Visa application, be maintained, including by taking steps as the employer sponsor to positively support the subclass 457  Visa application made by the Applicant.

Legislation

[5]Section 277 of the Act state:

"277 Power to grant injunctions

(1)The commission may, on application, grant the injunctive order it considers appropriate -

(a)to compel compliance with an industrial instrument, a permit or this Act; or

(b)to restrain a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.

(2)     An application may be made by-

(a)     a party to industrial action or an industrial dispute; or

(b)a person who is, or is likely to be, directly affected by industrial action or an industrial dispute; or

(c)     the registrar; or

(d)     the chief inspector; or

(e)     an inspector.

(3)An application by an organisation must be under the organisation’s seal and signed by the organisation’s president and secretary.

(4)     The commission may direct the injunctive order to—

(a)     the officers or members of an organisation generally; or

(b)     particular officers or members of an organisation; or

(c) a particular employer; or

(d) a particular employee.

(5)A person to whom the order is directed must comply with the order after the person has received notice of it.

(6)The commission may decide the form of the notice and the way the order is to be served.

(7)Without limiting subsection (6), the commission may order substituted service of the order by advertisement or otherwise.

(8)If the order is directed to an organisation, the organisation and each officer of the organisation must ensure the officers and members of the organisation comply with the order.

(9)If the officers or members, or a substantial number of the officers or members, of an organisation to whom an injunctive order is directed, contravene the order, the organisation and each officer of the organisation commit an offence, namely, the offence of failing to ensure the organisation complies with the order.

(10)It is a defence to a prosecution for an offence against subsection (9) for the organisation or officer to prove that it, or the officer, took all reasonable steps to ensure the officers or members complied with the order.

(11)The commission can not grant an injunctive order for a proposed contravention of section 73, 83, 87, 90 or 90A.

(12)   In this section-

injunctive order means an order in the nature of a mandatory or restrictive injunction. organisation includes a branch of the organisation."

Background to the claim

[6]The Applicant is currently employed by the Service as a Registered Nurse working at the Doomadgee Hospital. 

[7]A number of subclass 457 Visas have been sought by the Applicant and granted by the Service since 2010.

[8]The Applicant’s appointment as a Registered Nurse was made in accordance with "Area of Need" provisions under relevant legislation, which permitted the Service to recruit persons from outside Australia due to an ongoing inability to recruit persons from the Australian labour market.  The Service area in question falls within the parameters of an Area of Need.

[9]The current Visa was granted for a period from 3 August 2015 to 3 September 2016.

[10]The Applicant says he was advised on 17 August 2016, in correspondence from Ms Lisa Davies-Jones (Health Service Chief Executive) that the Service did not intend to support a further subclass 457 Visa application from him after the expiration of his current Visa on 3 September 2016.

[11]The Appellant cites two reasons given by the Service for making this decision:

"(a)you have not initiated a process for renewal of your subclass 457; and

(b)     We do not find it necessary at this time to fill the position after 3 September by way of a subclass 457 Visa holder".  [Exhibit 1, Annexure A]

[12]The Applicant's view is that his Visa has not been extended because he had lodged a Grievance against the Executive Director of Nursing for the Service viz., Ms Michelle Garner.

[13]It is common ground that the Applicant’s grievance (and the process and decision which ultimately followed) found that all of his claims against Ms Garner were deemed to be unsubstantiated.

[14]The Service said that at a meeting on 21 March 2016 (at the time the grievance decision was communicated to the Applicant) he had made it clear that he did not wish to work at the Mount Isa Hospital or anywhere else with the Service area.  This view, the Service claimed, was shared by the Applicant with other employees of the Service and is also referenced in emails tendered to the Commission (Exhibit 2).

[15]The Service provided the Applicant with a four week paid period of special leave for the purpose of giving him time to look for another job given his stated objection to continue working within the Service boundaries.

[16]In the initial hearing of this matter on 30 August 2016, the QNU Advocate agreed that the Applicant wished to work outside of the defined Service area.  The Commission consequently held the matter over for a day to ascertain whether the Applicant was able to find another position in another Service Area of Need.  The Service expressed its support for the Applicant in a role at the Torres and Cape Hospital Service.  On 1 September 2013, after making enquiries, the Applicant was advised that he was not accepted for a role within that Service.

[17]The Service advised that in lodging a nomination for sponsorship, the Department of Health (as sponsor) must certify to the Department of Immigration and Border Protection that:

(a)     The position associated with the nomination is genuine; and

(b)     The applicant’s intention to perform the occupation is genuine.

[18]Specifically, the Service stated:

"In circumstances where NWHHS could source a local candidate to fill the Nursing Pool role that Mr Norman had been occupying, as well as Mr Norman’s continued insistence that he did not wish to continue working in NWHHS, NWHHS could not provide the certification required to nominate Mr Norman for a further subclass 457 Visa.  If it did so, it would be unlawfully misleading the Department of Immigration and Border Protection."

[19]The Service acknowledges that at various times the Applicant had been seeking to progress his application for a continuation of his subclass 457 Visa with the Service but was clear that it had not actively supported his application.  Rather, it said that it went through the normal processes associated with an application of this type and no more. 

[20]In formalising its submission on 1 September 2016, and as previously mentioned, Counsel for the Applicant referred to correspondence the Applicant had received from the Service setting out the following:

"That the Applicant had not initiated a process for renewal of his subclass 457 Visa;

That the Service does not intend to support a further subclass 457 Visa nomination after the expiry of his current Visa on 3 September 2016;

That the Service did not consider it necessary at this time to fill the position after 3 September 2016 by way of a subclass 457 Visa holder; and

It would not be lawful for the Service to continue to employ the Applicant after the expiry of his current Visa on 3 September 2016".

[21]The Applicant highlighted what was viewed to be anomalies in the correspondence:

"That the Applicant had commenced his Visa application process and had received the support and assistance of the Service in doing so;

That the Services designation of an Area of Needs service had not changed;

That the 2015/16 current service profile/business plan of the Mt Isa Hospital indicates that the Service continues to be challenged by the remote location and experiences challenges with attracting, recruiting and retaining nursing and midwifery staff for both long term and short term relief."

[22]The Applicant claimed that the Service had produced no evidence to show that there had been a material change to the Service’s needs and an inability to attract and recruit local staff.  It added that the Service had also failed to identify that there were no further positions within Queensland Health that would be suitable to the Applicant and would assist him in the support of his 457 Visa application. 

Is Queensland Health or the Service the "employer" of the Applicant?

[23]The Applicant believed that Queensland Health was the appropriate employer of the Applicant.

[24]The Service stated that the entity which is the Standard Business Sponsor (Sponsor) for the Applicant’s subclass 457 visa is the Department of Health (Queensland Health) but it is not the employer of the Applicant for reasons detailed hereunder.

[25]Various obligations (2.78 to 2.87C) of Migration Regulations 1994 (Cth) (Migration Regulations) the are placed upon the Sponsor.  These include:

(a)     r.2.78 Obligation to cooperate with inspectors;

(b)     r.2.79 Obligation to ensure equivalent terms and conditions of employment;

(c)     r.2.80 Obligation to pay travel costs to enable sponsored persons to leave Australia;

(d)     r.2.80A Obligation to pay travel costs – domestic worker (executive);

(e)     r.2.80A Obligation to pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen;

(f)      r.82 Obligation to keep records;

(g)     r.83 Obligation to provide records and information to the Minister;

(h)     r.2.84 Obligation to provide information to Immigration when certain events occur;

(i)      r.2.85 Obligation to secure an offer of a reasonable standard of accommodation;

(j)      r.2.86 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity;

(k)     R.2.87 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs;

(l)      R.2.87A Obligation to make same or equivalent position available to Australian exchange participants;

(m)    R.2.87B Obligation to provide training;

(n)     R.2.87C Obligation not to engage in discriminatory recruitment practices.

[26]The Service's responses below are accepted by the Commission:

"What is not included in the sponsor’s obligations is any requirement to support a further nomination or Visa application for a subclass 457 Visa upon expiry of a Visa holder’s Visa.

There is no requirement for the sponsor to provide reasons (or evidence of reasons) to a subclass 457 Visa holder as to why any decision is made not to support a further nomination of Visa application.

There is also no obligation upon a sponsor to search for redeployment opportunities within the sponsor’s business or the businesses of an associated entity if the sponsor decides not to support a further nomination and Visa application in respect of the position of the subclass 457 Visa holder filled."

[27]The following legislation establishes that the Service is the employer of the Applicant.

[28]Aside from the relevant migration legislation, the Service is Mr Norman's employer pursuant to the Hospital and Health Boards Act 2011 (Qld) (HHB Act) and the Hospital and Health Boards Regulation 2012 (Qld) (HHB Regulation).

[29]Section 19 of the HHB Act is titled "Functions of Services" and relevantly provides as follows:

"(2)    A service also has the following functions –
         …
                  for a prescribed Service, to employ staff under this Act"

[30]Section 20 of the HHB Act is titled "Powers of Services" and relevantly provides at s 20(4):

"A service prescribed by regulation may also employ other health service     employees under this Act."

[31]The Dictionary in Schedule 2 of the HHB Act defines "health service employee" as "a person appointed as a health service employee under section 67".

[32]Section 67 of the HHB Act is titled "Appointment of health service employees" and relevantly provides:

"A prescribed Service may appoint a person as any health service employee in the Service."

[33]Schedule 3AA of the HHB Regulation is titled "Employment power – Act, s 20(4) and relevantly provides:

"For section 20(4) of the Act, a Service mentioned in schedule 1AA may employ health service employees."

[34]Schedule 1AA of the HHB Regulation is titled "Services with employment power".  Relevantly, "North West" is included in the list of Services set out in Schedule 1AA.

[35]In any event, it appears that this issue is not controversial as Mr Norman and Ms Davis have both given evidence on affirmation that they are employed by the Service.

[36]The Service submits that there has been no qualifying breach or threatened breach for the purpose of s 277 of the Act. Within that context, the Service submits that the Commission has no jurisdiction to grant the relief sought (or similar relief) by the Applicant.

[37]Significantly, the Service states that "even if there was jurisdiction or had been a breach, the Commission cannot grant the specific relief sought as it is in effect an injunction mandating that the Service support a further application for Mr Norman for a subclass 457 Visa in circumstances where:

(i)There is no relevant labour market testing to support any ongoing need for a subclass 457 Visa holder in the nursing pool at Mt Isa Hospital; and

(ii)The Service cannot lawfully support Mr Norman submitting a subclass 457 Visa application to the Federal Department of Immigration and Border Protection in circumstances where it is aware that Mr Norman does not have a genuine intention to perform the nominated occupation. (Schedule 2, clause 457.223(4)(d) Migration Regulations 1994 (Cth) (Migration Regulations). If it determined to do so it would commit an offence under s. 234 of the Migration Act 1954 (Cth).

[38]The labour market testing requirements are that a sponsor who nominates a position to be filled by a subclass 457 Visa holder, must provide evidence that it has undertaken labour market testing in relation to the position within the 12 months prior to submitting the nomination.  The Service has not undertaken the relevant labour market testing to support a further nomination for the Applicant.

[39]The status quo sought to be preserved by the Applicant is the fact that the Applicant has a Visa that is set to expire on 3 September 2016.  Consequently, no action has been taken or is proposed to be taken by the Service to alter the status quo.  The Applicant is not seeking to maintain the status quo, but rather to create an entitlement which he presently does not have.

[40]I agree with the Service's proposition on this point.

[41]The Migration Regulations at Schedule 2, clause 457.223(4)(d) states that the Minister must be satisfied that:

"The applicant’s intention to perform the occupation is genuine."

[42]There are further requirements to be met under the Migration Act 1958 (Cth) at s. 234 to ensure that a person should not "cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular…"

[43]Within that context, the Applicant has made it abundantly clear to the Service and others that he had no intention of continuing to work for the Service and that he has been actively seeking alternative employment outside of this Service area.  The Service has actively supported the Applicant in seeking alternative employment in accordance with his request to relocate to another Service area.

Conclusion

[44]It is clear that the Applicant does not wish to work in the Service.  However, later in evidence, he said he would only work in the Service if there were to be changes in command which would exclude any involvement by him with Ms Garner (the subject of his ultimately unsubstantiated allegations).  Given Ms Garner's position within the service, this is an untenable and unrealistic proposition to put to the Service.

[45]The Applicant does not fit the requirement of being an applicant whose intention to perform the occupation is genuine.

[46]There is no evidence to support the assertion that the Service was actively supporting his 457 Visa application.  Rather it has been found that the Service was merely performing perfunctory requirements in relation to the Applicant’s requests. (see Exhibit 1 – Annexures B, C, D and E)

[47]The last-minute Grievance Dispute filed by the Applicant on 30 August 2016, is in itself disingenuous in my view.  It represents an attempt to ensure that an injunction is granted upon grounds which are unable to be substantiated.

[48]The term of the Applicant’s Visa is predetermined.  It expires on 3 September 2016.

[49]The status quo has in fact been preserved.

[50]Section 277 of the Act provides that the Commission may only grant the injunctive order it considers appropriate to:

(a)    Compel compliance with an industrial instrument, a permit or the IR Act; or

(b)   To restrain a contravention, of continuance of a contravention, of an industrial instrument, a permit or the IR Act.

[51]These powers are limited:

"The power given to the Commission to grant injunctive relief is statutory, and the occasion for its exercise does not arise unless it is demonstrated that the party against whom the relief is sought is not complying with, or is in breach of, an industrial instrument of the Act."

[52]In the circumstances of this case, the filing of a Grievance Dispute (pursuant clause 3.1 of the Queensland Health Nurses and Midwives Award – State 2012), immediately prior to the expiration of the Applicant’s Visa was a futile and disingenuous exercise.  The actions taken by the Service with regard to this matter have not been in contravention of any industrial instrument, permit or the Act (s 277).

[53]The application is dismissed

[54]Order accordingly.