Queensland Nurses' Union of Employees v Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane

[2014] FWC 8551

[2014] FWC 8551

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604—Appeal of decision

Queensland Nurses’ Union of Employees
v
Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane and Others
(C2014/7784)

VICE PRESIDENT CATANZARITI SYDNEY, 1 DECEMBER 2014

Appeal against decision [2014] FWC 7635 of Deputy President Asbury at Brisbane on 27 October 2014 in matter number AG2014/4103 - Stay application.

[1] On 27 October 2014, Deputy President Asbury issued a preliminary decision 1 (the Decision) in relation to an application made by the Uniting Church in Australia Property Trust (Q) t/a Blue Care and Wesley Mission Brisbane (Blue Care) for approval of the Blue Care/Wesley Mission Brisbane Care and Support Employees Enterprise Agreement 2013 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act).

[2] On 17 November 2014, the Queensland Nurses’ Union of Employees (the QNU) lodged an appeal against the Decision, and noted in its Notice of Appeal that it sought a stay of the Decision. I heard the parties on 28 November 2014 in relation to the stay application. At the conclusion of the hearing I informed the parties of my decision and that the reasons for my decision would be published in due course. These are the reasons for my decision.

The Decision at First Instance

[3] The Decision dealt with a preliminary issue in relation to the approval of the Agreement, namely whether or not a valid Notice of Employee Representational Rights (NERR) had been issued. The NERR was issued on or about 23 November 2011. Section 174 of the Act deals with the form and content of a valid NERR. Section 174 was amended with effect from 1 January 2013 by the insertion of s.174(1A) which provides that an NERR must contain prescribed content, must not contain any other content and must be in a prescribed form. This amendment did not have retrospective application and only applies to NERRs issued after 1 January 2013. Thus, the relevant legislative scheme applicable to the NERR is that set out in s.174 of the Act as it was at 23 November 2011.

[4] The issue before the Deputy President was whether or not the NERR was valid having regard to the provisions of the Act as they then were. At the relevant time, s.174(6) of the Act provided that:

“Regulations may prescribe additional content and form requirements etc.

The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.”

[5] At the relevant time, Reg 2.05 of the Fair Work Regulations 2009 (the Regulations) provided that:

“Notice of employee representational rights - prescribed form

For subsection 174(6) of the Act, the notice of employee representational rights in Schedule 2.1 is prescribed.”

[6] The two primary issues at first instance related to the content contained in the first paragraph of the prescribed form in Schedule 2.1 of the Regulations which provided:

“Schedule 2.1-Notice of employee representational rights

(regulation 2.05)

Fair Work Act 2009, subsection 174(6)

[Name of employer] gives notice that it is bargaining in relation to an enterprise agreement ([name of the proposed enterprise agreement]) which is proposed to cover employees that [proposed coverage].

...”

[7] The QNU submitted at first instance that the NERR failed to comply with the Act and Regulations insofar as it failed to state the name of the Agreement and the proposed coverage of the Agreement. The first paragraph of the NERR as issued was in the following terms:

“The Uniting Church in Australia Property Trust (Q), t/a Blue Care gives notice that it is bargaining in relation to an enterprise agreement which is proposed to cover care, support services, clerical and administrative employees who work for the Uniting Church in Australia Property Trust (Q) trading as Blue Care and Wesley Mission Brisbane.”

[8] The Deputy President found as follows: 2

“The NERR issued by Blue Care contains all of the content then stipulated in s.174 of the Act. That section does not require that an NERR set out the name of a proposed Agreement. The Form in Schedule 2.1 of the Regulations provides for the name of a proposed agreement to be inserted. In the present case, I accept that the failure to insert that information does not render the NERR invalid and is a minor omission which does not prevent the NERR from substantially complying with the legislative requirements.

This is because the coverage of the proposed Agreement is clear. As provided in the NERR, the proposed coverage includes: “care, support services, clerical and administrative employees”. In the context of the operations of Blue Care, these are long established terms which should be well known to the employees concerned. The terms of s.174 of the Act refer to “work that will be performed under the agreement” and in my view the work that will be performed under the Agreement was described in the NERR.

At the point a NERR is issued, the employer is giving notice of a proposal to negotiate an enterprise agreement. The employer is simply required to set out the proposed coverage and there is no basis for requiring that the scope of the proposed agreement be strictly defined. The name and coverage of an Agreement are matters that can themselves be the subject of bargaining and negotiation.

The issue for determination in this case is narrow and relates only to whether the NERR complies with s.174 of the Act as it stood at the time the NERR was issued. A number of matters raised by the QNU go beyond that issue and traverse matters relevant to s.188 of the Act and other sections relevant to issues such as whether the Agreement was genuinely agreed to. Those matters are not relevant in these proceedings. The NERR issued by Blue Care on or about 23 November 2011 complied with the requirements of s.174 as they then were and is valid.” (Citations omitted)

Applicable Principles and General Approach

[9] There was no dispute between the parties as to the principles applicable to the determination of the stay application. They are as stated in Kellow-Falkiner Motors Pty Ltd v Edghill, 3in which the Full Bench approved the following statement of principle:4

“In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

Submissions

The QNU

[10] The grounds of appeal identified by the QNU in its notice of appeal can be identified as follows:

• The learned Deputy President erred in finding that in omitting the name of the proposed agreement, Blue Care substantially complied with the legislative requirements.



• The learned Deputy President erred in failing to give reasons why the omission by Blue Care to state the name of the proposed enterprise agreement at all, when it was required to state the name of the proposed enterprise agreement, constituted substantial compliance with the Act and the Regulations.



• The learned Deputy President erred in finding that the coverage of the proposed agreement was stated clearly in the NERR.



• The learned Deputy President erred in finding that terms including “care” and “support services” were long established terms which should be well known to the employees concerned.



• The learned Deputy President erred in finding that at the point a NERR is issued the employer is only required to set out the proposed coverage which need not be strictly defined because at the time a NERR is issued it must at least cover the broadest scope of the agreement to be negotiated. Whether the NERR was valid at the time it was issued must be determined by reference to the enterprise agreement for which approval of the Fair Work Commission is sought by the employer.

[11] The QNU submitted that it had an arguable case with some reasonable prospect of success in relation to the question of leave to appeal. It was submitted that the appeal raises issues of the integrity of the enterprise bargaining process under the Act, and of the Commission’s role in ensuring that essential and mandatory requirements are complied with. It was submitted that this was particularly the case when a failure by an employer to comply may deprive employees of the right to appoint a bargaining representative of their choice.

[12] The QNU also argued that it had an arguable case with some reasonable prospect of success in respect of the merits of the appeal. In support of this proposition, the QNU submitted the following:

1) The Learned Deputy President failed to follow and apply a decision of the High Court in respect of substantial compliance with a form. In Adams v Lambert, 5 the High Court held that where the requirement in a form was to state the specific provision of an act it was not substantial compliance with the form to state a different provision of the act. The Court also found that it was to be inferred, implied and understood that the requirements of forms were to be complied with whether that was expressly stated in the Act, Regulations or otherwise. It follows very readily where reg 2.1 of the Fair Work Regulations 2009 required Blue Care to state the “name of the proposed Enterprise Agreement”, it was not substantial compliance with the form to fail to do so altogether. This was an error of law. The conclusion that that deficiency in the form may be excused because the proposed coverage of the agreement to be negotiated was adequately described was likewise erroneous. The failure of the Deputy President to give reasons for not acting on the principle in Adams v Lambert is similarly open to appeal.

2) Similarly the QNU contends that the Learned Deputy President failed to follow the decision of the Full Bench in Ostwald Bros Pty Ltd v CFMEU[2012] FWAFB 9512. In that decision the Full Bench at paragraph [83] found in respect of the contents of a NERR that:

“The absence of a statutory qualification as to the content requirements ... strongly suggests that near enough is not good enough in respect of the content requirements”.

3) It was not open to the Deputy President to find that the proposed coverage of the enterprise agreement was clear from the terms of the NERR. The terms employed in the NERR issued by Blue Care on 23 November 2011 to describe the proposed coverage of the proposed agreement are “care, support services, and clerical and administrative employees”. Neither the terms “care” nor “support services” are defined in the 2008 agreement, and the agreement does not cover clerical and administrative employees at all. Coverage of the work performed by relevant employees was described by a reference to alleged constitutional coverage of the work, not by any description of the work itself. This different description and mis-description, in and of itself, was apt to mislead and confuse employees. Together with it being an entirely nameless proposed agreement, it was bound to mislead and confuse.

4) The description of the NERR issued 23 November 2011 bears little relation to the coverage in the proposed Agreement. This is a matter for determination on and of the preliminary point. If that proposition is accepted, then the NERR is not and could not have been valid when it was issued.

[13] The QNU submitted that when taken together, the two deficiencies in the NERR rendered erroneous the Deputy President’s finding that there had been compliance with the mandatory legislative requirements.

[14] In relation to the balance of convenience, the QNU submitted that it would be compelled to incur the costs of a substantial hearing in relation to the approval of the Agreement that may be unnecessary if the appeal is upheld. It was further submitted that it would not be possible for a fair hearing to take place if no stay was granted, as the Full Bench may make some comments in its decision that could affect the conduct of the hearing in relation to the approval of the Agreement.

[15] It was also submitted that the QNU would be denied procedural fairness if the appeal of the Deputy President’s Decision were to proceed simultaneously with the substantive matter of the approval of the Agreement.

Blue Care, the Australian Workers’ Union of Employees Queensland and United Voice Industrial Union of Employees

[16] Blue Care, along with the Australian Workers’ Union of Employees Queensland (the AWU) and United Voice Industrial Union of Employees (United Voice) opposed the granting of a stay order.

[17] Blue Care submitted that the QNU has no arguable case for leave to appeal nor are there any substantive merits for the appeal. It was submitted that the appeal was lodged outside of the 21 day timeframe allowed for appeals pursuant to Rule 56 of the Fair Work Commission Rules 2013 (the Rules). It was submitted that the Deputy President issued her decision on 21 August 2014 6 and released further reasons for her decision on 27 October 2014. Thus, it was submitted that the appeal was lodged outside of the 21 day timeframe required by the Rules and that no leave had been sought to extend the time for lodgement of an application for leave to appeal. Therefore, it was submitted, there is no valid appeal before the Commission.

[18] Blue Care submitted that it was open to the Deputy President to find that there was substantial compliance with the legislative requirements in relation to the NERR despite the omission of the name of the agreement. It was submitted that the omission of a name for the proposed agreement did not affect the intent or purpose of the NERR as the scope of coverage that was included adequately apprised employees of the nature of the proposed agreement and included the categories of employees covered by the Agreement, and employees were still fully informed of their rights to representation. It was further submitted that the reasons for this finding are clearly set out in the Decision.

[19] It was also submitted that it was open to the Deputy President to find that there was substantial compliance with the legislative requirements in relation to the description of the proposed scope of the agreement utilised in the NERR. It was submitted that what was required was that employees be given notice of the proposed scope of the agreement and that the NERR fulfilled this requirement. Blue Care argued that the authorities provide that the “scope of a proposed agreement is a matter that can itself be the subject of bargaining” for an enterprise agreement. 7 As such, the requirement to set out the scope of an agreement should not be read to require that scope to be provided in particularly strict language or using technical terms.

[20] Blue Care also submitted that there was no public interest in allowing the QNU permission to appeal as the relevant legislative provisions were no longer in force and were the subject of numerous full bench decisions that provided guidance in relation to these matters. It was argued that the appeal was misconceived and had no reasonable prospects of success.

[21] In relation to the balance of convenience, it was submitted that the granting of the stay would result in significant delay, as if the appeal is unsuccessful and the Commission is required to hear the parties in relation to the approval of the Agreement, it is likely that this would not be able to take place until mid-2015. It was submitted that this is undesirable in circumstances where the matter is currently set down for hearing for 4, 5 and 15 December 2014. It was further submitted that there would be no prejudice to the QNU if no stay was to be granted, as the QNU would be able to rely on a successful outcome in this appeal to challenge any decision approving the Agreement. If, however, the Agreement is not approved then the appeal would become unnecessary.

[22] It was also submitted that allowing a stay could cause industrial uncertainty and that employees were being denied the full benefits of the Agreement that they had voted to approve.

[23] The AWU emphasised the detriment to employees in circumstances where an overwhelming majority of employees had voted to approve an agreement that was yet to be improved. It was also submitted that it was uncertain what impact that a stay of the Deputy President’s Decision would have on the conduct of the substantive matter relating to the approval of the Agreement. Both the AWU and United Voice adopted the submissions of Blue Care in opposing the granting of a stay.

Consideration

[24] It is clear on the material before me that the QNU’s Notice of Appeal was lodged out of time, as the Deputy President made her decision on 21 August 2014 and the Notice of Appeal was not lodged until 17 November 2014. While the publishing of further reasons for her Honour’s decision on 27 October 2014 would be a relevant matter to consider in determining whether leave should be allowed to amend a notice of appeal that had been lodged within time, it does not negate the fact that the decision against which this appeal has been brought was made on 21 August 2014.

[25] Rule 56(2)(c) of the Rules allow the Commission to extend the time for lodging a notice of appeal on application by the appellant. In Jobs Australia v Mrs Donna Eland[2014] FWCFB 4822 the Full Bench found as follows: 8

“Time limits of the kind in Rule 56 should not simply be extended as a matter of course. There are sound administrative and industrial reasons for setting a limit to the time for bringing an appeal and it should only be extended where there are good reasons for doing so. The authorities indicate that the following matters are relevant to the exercise of the Tribunal’s discretion under Rule 56(2)(c):

• whether there is a satisfactory reason for the delay;

• the length of the delay;

• the nature of the grounds of appeal and the likelihood that one or more of those grounds being upheld if time was extended; and

• any prejudice to the respondent if time were extended.

In broad terms the issue for the Commission is whether, in all the circumstances and having regard to the matters set out above, the interests of justice favour an extension of the time within which to lodge the appeal.” (Citations omitted)

[26] In that matter, an interlocutory decision was made with no reasons initially given. Reasons for the decision were not published until some weeks later. The Full Bench did not accept that the appellant was not in a position to formulate the grounds of appeal until the reasons for the decision had been published, finding as follows: 9

“First, it is submitted that Jobs Australia was not in a position to formulate the grounds of appeal until the reasons for the Vice President’s decision were published on 8 May 2014. We find this argument unconvincing.

The decision subject to appeal is about the meaning of the expression ‘association of employers’ in s.596(4)(b)(ii) and the application of that construction to Jobs Australia. In other words the decision subject to appeal dealt with a question of law and on appeal the issue is whether or not the Vice President was correct. Having regard to the nature of the decision subject to appeal we fail to see why it was necessary for Jobs Australia to await the reasons for decision before instituting the appeal. There was nothing to prevent Jobs Australia instituting the appeal, noting that the reasons had not yet been delivered, and subsequently seeking leave to amend the grounds of appeal. We note that different considerations arise where the decision subject to appeal involves the exercise of a discretion. In such a case the reasons may themselves provide the basis for an appeal, for example where the reasons disclose that the Member has had regard to an irrelevant consideration.”

[27] Similarly, in this matter the primary grounds of appeal relate to alleged errors of law made by the Deputy President in her Decision. There appears to be no reason, and no such reason was put forward by the QNU, why a notice of appeal could not have been lodged in time in relation to the Deputy President’s decision.

[28] The QNU did submit that it had sought an adjournment from the Deputy President in the substantive matter and that it had been unsuccessful. However, it provided no further explanation for its failure to lodge a notice of appeal within time aside from asserting that it was waiting for the Deputy President to publish the full reasons for her Honour’s decision, and that it thought that the full reasons would be published more quickly than they were.

[29] Further, while the QNU submitted that the Deputy President plainly erred in failing to follow relevant High Court and Full Bench authorities, the issue is far from clear-cut. The decisions upon which the QNU seeks to rely were both dealt with by the Deputy President at first instance. The Deputy President has considered these cases in the context of the matter at hand and, on its face, I struggle to identify any error in her Honour’s application of these authorities.

[30] With respect to the balance of convenience, I accept the arguments of those opposing the stay that the balance of convenience favours a refusal of the stay application. If the stay is not granted, the QNU will not be deprived of any rights in relation to opposing the application to approve the Agreement or to appeal against the Deputy President’s Decision. While it will bear the expense of running its substantial case before the Deputy President, this must be weighed up against its delay in lodging its Notice of Appeal, which resulted in this stay hearing only being heard after Blue Care has borne the expense of preparing, filing and serving a significant volume of material in relation to the substantive matter.

[31] I also accept that allowing a stay in this matter would have a detrimental impact on the relevant employees who have voted to approve the Agreement as it would inevitably result in significant delay in the Commission’s approval of the Agreement. It is noteworthy that the Agreement was approved by an overwhelming majority of employees. The Employer’s declaration in support of the application to approve the Agreement shows that over 90% of employees who voted for the Agreement were in favour of it.

Consideration

[32] Having had regard to the time bar that the QNU must overcome in order to be successful in its appeal, its overall prospects of success and the balance of convenience, I am not satisfied that I should make an order to stay the Deputy President’s Decision. The QNU’s application for a stay is dismissed.

VICE PRESIDENT

Appearances:

M Healy of Counsel for the Queensland Nurses’ Union of Employees.

C Murdoch of Counsel for the Uniting Church in Australia Property Trust (Q) t/a Blue Care and Wesley Mission Brisbane.

A Herbert of Counsel for the Australian Workers’ Union of Employees Queensland.

D Peverill for United Voice Industrial Union of Employees.

Hearing details:

2014.

Sydney:

November 28.

 1   Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane [2014] FWC 7635.

 2   Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane [2014] FWC 7635, [23]-[26].

 3   P Edghill v Kellow-Falkiner Motors Pty Ltd[2000] AIRC 1207.

 4   Ibid [5]-[6].

 5   Adams v Lambert (2006) 286 CLR 409, [22].

 6   Uniting Church in Australia Property Trust (Q) T/A Blue Care and Wesley Mission Brisbane [2014] FWC 5784.

 7   MSS Security Pty Ltd v Líquor, Hospitality and Miscellaneous Union [2010] FWAIB 65 19 at paragraph [l4], citing Stuartholme School v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane[2010] FWAFB 1714

 8   Jobs Australia v Mrs Donna Eland[2014] FWCFB 4822, [5]-[6].

 9   Ibid [8]-[9].

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